Applicant v Respondent

2 The stewards were empowered by the rules to hear and determine the rule 86(q) charge. They did so and disqualified Mr Dawson for 12 months. The other two charges are deemed by the Greyhound Racing Victoria Local Rules[1] to be 'serious offences' and must be heard by the Greyhound Racing Victoria Appeals and Disciplinary Board ('the Board'). Mr Dawson appealed the stewards' decision on the rule 86(q) charge. That appeal was also required to be heard before the Board.[2] Thus the Board had before it three charges arising from the one set of circumstances: two charges to be heard at first instance, and one appeal from the stewards.

3 On 2 March 2016, the Board found Mr Dawson not guilty of breaching rule 86(q), but guilty of breaching the rule 86(ah) and 86(o), first instance charges. Mr Dawson was disqualified for 12 months, to be effective from 7 March 2016.

4 Mr Dawson applied to the Victorian Civil and Administrative Tribunal ('VCAT') under s 83OH of the Racing Act 1958 for review of the Board's decisions. Mr Dawson's disqualification was stayed until further order. VCAT therefore reviewed both charges that were heard at first instance by the Board. Those charges read as follows:

Charge 1

The Stewards charge [Mr Dawson] with a breach of Greyhounds Australasia Rule 86(ah) which reads as follows:

R86 Offences

A person (including an official) shall be guilty of an offence if the person-

(ah) being a registered person or person associated with greyhound racing, associates with a disqualified person for the purposes of greyhound racing;

The particulars of the charge being:

In that you did on 20 November 2015, being a registered person, associate with a disqualified person namely Mr Tony Vass, for the purposes of greyhound racing to wit you allowed him to exercise a brindle coloured greyhound at a greyhound training facility known as the Darnum Slip Track (a greyhound training facility located at Pedder St, Darnum and managed by the Warragul Greyhound Club).

Charge 2

The Stewards charge [Mr Dawson] with a breach of Greyhounds Australasia Rule 86(o) which reads as follows:

R86 Offences

A person (including an official) shall be guilty of an offence if the person -

(o) has, in relation to a greyhound, or greyhound racing, done a thing, or omitted to do a thing, which, in the opinion of the Stewards or the Controlling Body, as the case may be, is negligent, dishonest, corrupt, fraudulent or improper, or constitutes misconduct.

The particulars of the charge being:

In that you did on 20 November 2015, in relation to greyhound racing do a thing, which in the opinion of the Stewards was improper or constitutes misconduct to wit you allowed a person, namely Mr Tony Vass, who you knew to be a disqualified person under the Greyhounds Australasia Rules, to enter and remain on a greyhound training facility known as the Darnum Slip Track (a greyhound training facility located at Pedder St, Darnum and managed by the Warragul Greyhound Racing Club).

5 VCAT found the applicant not guilty of charge 1 but guilty of charge 2. He was disqualified for 12 months. He now seeks leave to appeal on a question of law pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act'). By consent, Ierodiaconou AsJ ordered[3] that the leave application be determined by the Court which, if leave is granted, would hear and determine this appeal.[4] There is very large overlap between questions on leave to appeal and the appeal itself.[5]

6 Section 83OH of the Racing Act 1958 empowers VCAT to review a decision of the Board. The review jurisdiction of VCAT is created by s 42 of the VCAT Act, and the tribunal's functions on review are set out in s 51. The review conducted by VCAT was as a hearing de novo.

7 As I have observed, this appeal proceeds on a question of law pursuant to s 148 of the VCAT Act. This court is 'not entitled to enter into the fact finding exercise which the legislature has deliberately entrusted to a specialist tribunal'.[6] I shall consider the question of leave to appeal and the merits of the appeal itself together.

8 Should questions of law be identified, the appeal is enlivened and the Court exercises original (not appellate) jurisdiction in the nature of judicial review to correct errors of law.

Where leave is granted under s 148 of the VCAT Act, the Court does not exercise a general appellate function, nor does it rehear the merits of the application before the Tribunal.[7]

9 Much of the activity at the Darnum Slip Track was captured by surveillance cameras. The following undisputed facts were found by the Senior Member.

• The Warragul Greyhound Racing Club ('WGRC') manages the Darnum Slip Track.

• The applicant was a key holder at the slip track and had signed track rules which stated that the track was subject to the greyhound racing rules and 'key holders' were the only persons authorised to use the slip track.

• The applicant was at the track as a registered trainer exercising his greyhounds as part of their training for racing.

• The applicant was aware Mr Vass was disqualified. He was aware of the rules against associating with a disqualified trainer.

• The slip track is a straight 300 m track, 10 m wide. It is enclosed by a high steel fence. A lower wire fence divides the straight track in two, so there are, in effect, two straight 300 m tracks, each 5 m wide.

• A car park and preparation area are adjacent to the track but not part of it.

• On 20 November 2015, at 9.58 am, Mr Dawson arrived at the track.

• At 10.26 am, Mr Vass arrived at the car park to the track. At 10.29 am, Mr Vass and Mr Dawson met outside the gate adjacent to the track and conducted a quick conversation.

• Over the next twenty-five minutes, Mr Vass and Mr Dawson 'were within the track at the same time for 100 seconds'.[8]

• They were also observed together in the car park and apparently talking over the track fence at other times.

• There was no apparent acrimony observable in the surveillance footage.

10 The reasons relating to charge 2 are relatively brief. At paragraph [7] of the Tribunal's reasons, the charges were set out. Notably, in the Tribunal's statement of the charges, charge 2 appears identical to its original form as particularised by the stewards, which I have reproduced at [4] of these reasons. However, at paragraph [8], the Senior Member said this:

'During the VCAT hearing it was conceded that it was not proven Mr Dawson allowed Mr Vass 'to enter' the Darnum Slip Track (the Track). At the time, the Track gate was unlocked. Various people were using it. The evidence did show Mr Dawson allowing entrance. He had no legal authority to prevent Mr Vass entering. In effect, the particulars of the charge were amended to be that Mr Dawson allowed Mr Vass 'to remain on' the track, in the sense that Mr Dawson failed to immediately leave when Mr Vass came onto the track'. (My emphasis)

11 At paragraphs [74] to [84] of the Tribunal's reasons, the Senior Member found the applicant guilty of charge 2 and provided his reasons for doing so. It is clear that the applicant was found guilty of charge 2 as assertedly informally amended by the Tribunal.[9]

I was comfortably satisfied and formed the opinion that Mr Dawson omitted to do a thing such that his conduct was improper and constituted misconduct. He allowed Mr Vass to remain on the Track with him, in that Mr Dawson failed to immediately remove himself from the Track while Mr Vass was there.

1. The Tribunal erred in law in finding the appellant guilty of an omission with which he was not charged, namely, omitting to leave the greyhound facility at Pedder Street Darnum at the time a disqualified person, Tony Vass, entered that facility.
2. The Tribunal erred in law in finding the appellant guilty contrary to the wording of the charge in that it found him guilty of an omission as opposed to the acts with which he was charged.

Particulars

The appellant was charged with misconduct or improper conduct in allowing a disqualified person to enter and remain on a greyhound training facility but was instead found guilty of misconduct or improper conduct by his not immediately leaving the training facility upon the entry of a disqualified person.

1. The Tribunal erred in law by regarding the charge as amended "to be that Mr Dawson allowed Mr Vass 'to remain on' the Track, in the sense that Mr Dawson failed to immediately leave when Mr Vass came onto the track" and finding him guilty in circumstances where:

(a) no application for such amendment was made;

(b) no indication or notice was given by the Tribunal of its intention to regard the charge as so amended;

(c) procedural fairness required the appellant to be given explicit notice of any amendment or intention to regard the charge as so amended;

(d) the appellant was not given explicit notice of any amendment or intention to regard the charge as so amended;

(e) procedural fairness required the appellant to be heard as to any amendment or intention to regard the charge as so amended;

(f) the appellant was not heard as to any amendment or intention to regard the charge as so amended.

1. The Tribunal erred in law in that it failed to give reasons for such amendment of the charge or for regarding the charge as so amended.
2. The Tribunal erred in law in that it lacked jurisdiction or power upon a review of a decision pursuant to s 830H of the Racing Act 1958 to amend or regard the charge as amended to the effect set out in ground 3.
3. The Tribunal erred in law in taking into account an irrelevant factor, namely, a failure of the appellant to immediately leave the greyhound facility upon the entry of a disqualified person in that the appellant was not charged with such an omission.
4. The Tribunal erred in law in adopting a construction of Greyhounds Australasia Rule 86(o) such as to impose an obligation on the appellant to remove himself from the greyhound facility upon the entry of a disqualified person to that facility.
5. The Tribunal ought to have found that the conduct of Mr Dawson was, in the circumstances, not improper or constituting misconduct contrary to Rule 86(o).
6. The Tribunal erred in law in reaching a conclusion not open to it in finding the appellant guilty contrary to findings of fact set out in its written reasons including but not limited to findings that:

(a) the appellant did not associate with the disqualified person within the track for the purposes of greyhound racing (paragraph 67)

(b) The appellant was not guilty of breaching rule 86(ah) of the Greyhound Australasia Rules (Order 1 a))

(c) the appellant did not allow the disqualified person to enter the greyhound facility on 20 November 2015 (paragraph 8)

(d) the appellant had no legal authority to prevent the disqualified person from entering the facility on the relevant date (paragraph 8)

(e) there was no evidence that the appellant invited the disqualified person to the facility on the relevant date (paragraph 31)

(f) the charges related to the presence of the appellant within the track (paragraph 9)

(g) the appellant did not allow the disqualified person to exercise a greyhound within the track (paragraph 64)

(h) the disqualified person did not work with or assist the appellant in training his greyhounds (paragraph 69)

(i) the disqualified person did not engage in greyhound racing within the meaning of the Rules (paragraphs 54 and 62)

(j) there was no or no conclusive evidence as to any communication between the appellant and the disqualified person and the tribunal was unable to conclude what they were talking about (paragraphs 69-70)

(k) the surveillance footage shows the appellant and the disqualified person within the track at the same time for a approximately 100 seconds (paragraph 47).

13 These grounds raise two threshold questions of law:

1. Did the Tribunal amend charge 2?
2. If yes, did the Tribunal have jurisdiction to so amend the charge?

14 This question is fundamental to the resolution of this appeal. The appellant says that there was a de facto amendment undertaken by the Senior Member at his own instigation in paragraph [8] of his reasons. The respondent argues that there was in fact no amendment undertaken by the Senior Member - what he did was simply to view the particularised offence from a different perspective. By omitting to leave the slip track immediately the appellant permitted the disqualified person to remain on the greyhound training facility.

15 The appellant was charged with engaging in conduct which, in the opinion of the stewards or the Controlling Body, was improper or which constituted misconduct.[10] Obviously this is a very wide Rule which contemplates many disparate types of misconduct. It is settled law that a person in the appellant's position is entitled to know the precise nature of the charge brought against him or her.[11] This is what was provided by the stewards when they particularised charge 2. Omitting formalities, the charge is particularised as follows:

(a) You allowed Tony Vass to enter and remain on a greyhound training facility (the Darnum Slip Track)

(c) while you knew him to be a disqualified person.

(a) The Darnum Slip Track was a greyhound training facility;

(b) The appellant knew Tony Vass to be a disqualified person; and

(c) The applicant did not allow Mr Vass to 'enter' the track.

17 Thus, the impugned ingredients of the charge were:

(b) Which in the opinion of the Stewards was improper or constituted misconduct by

(c) Allowing Tony Vass to remain on the Darnum Slip Track.

Thus proof of the charge required proof that the appellant allowed Tony Vass to remain on the track.

18 The Senior Member explicitly stated that '...in effect the particulars of the charge were amended...' and with respect I agree with him. Charge 2 was amended to allege as an ingredient of the offence that the appellant omitted or failed to leave the track the moment he became aware of the disqualified person's presence. In my view, if this is an offence at all, it is certainly a different offence to that alleged by charge 2 in its original form. I consider the sentence in the reasons '..(h)e allowed Mr Vass to remain on the track with him, in that Mr Dawson failed to immediately remove himself from the Track...' exposes both the difference between the two offences, and a logical flaw in the reasons. Had Mr Dawson promptly removed himself from the track, in my view this action could not impact upon whether Mr Vass stayed or left. In modern language, there is a 'disconnect'. Mr Dawson's prompt exit is irrelevant to the central ingredient of the charge - that he allowed Mr Vass to stay.

19 At no stage during the VCAT hearing did counsel for GRV request an amendment to the charge, and the prospect of an amendment was not discussed at any stage. It is apparent from the submissions that charge 2 was fought on the basis of its original form.[12] The appellant argued forcefully that he had no power to remove Mr Vass from the track; to do so may well require the commission of an unlawful assault and the Rules could not be interpreted to place a positive obligation upon the appellant to effect this removal.

20 The appellant's submissions at the VCAT hearing concluded in this way:

...it is not an act that is alleged, it really is an omission to take those positive steps and it is not framed as such and there is ambiguity in the charge, but it reinforces the point that the charge is not made out because it is the charge as framed.

In response to this submission, the Senior Member asked counsel for the GRV, 'Just simply, what should he have done'. Counsel replied, 'He should have left the facility'.[13] Shortly thereafter, the applicant's counsel responded to this submission by submitting this was a new point raised in response to a question from the Tribunal. He then submitted this:

...that is not the charge that he did an improper thing by not leaving, the charge is that he did an improper thing by allowing Mr Vass to remain and the focus of the tribunal's consideration ought be primarily on the wording of the charges and whether they are made out on the evidence.[14]

21 I have examined the transcripts of both the Board hearing and the VCAT hearing. The 'fail to leave' hypothesis was not articulated by GRV until p 134 of the 137-page VCAT transcript.

22 I consider it clear that by interpreting the ingredient of the original offence that concerned allowing Vass to remain on the track to extend to a failure of Mr Dawson to leave the track, the Tribunal effectively amended charge 2. In DPP v Kypri,[15] Nettle JA[16] said (in the criminal context):

a charge is to be interpreted in the way in which a reasonable defendant would understand it, giving reasonable consideration to the words of the charge in their context.

23 In my view, the words of the original charge would not have brought home to Mr Dawson, or to any reasonable defendant in his position, the essential ingredients of the offence that was ultimately determined by the Tribunal.

24 It follows that I consider an element of charge 2 was substantively amended. In so doing, the Senior Member considered a fresh charge that had not been the subject of any earlier determination.

Did the Tribunal have jurisdiction to amend charge 2?

25 In Freeman v The Secretary, Department of Social Security ('Freeman'),[17] the applicant's pension was cancelled by the Department of Social Security because she was no longer eligible to receive it. The Administrative Appeals Tribunal ('AAT') affirmed this decision. The Tribunal member added, however, that she would, at the time of the judgment, be eligible to receive the pension because of changed circumstances. This comment by the Tribunal would seem to relate to a decision to refuse an application for the pension, rather than to a decision to cancel an existing pension. Justice Davies held that the question of whether the cancellation decision was correct was different to the question of whether the applicant was now entitled to the pension:[18]

The issue was whether, having regard to those facts, the decision to cancel...was the correct or preferable decision, not whether [the applicant] had an entitlement to a widow's pension as at the date of the Tribunal's decision.

In the present case, the decision under review was not a decision refusing to grant a pension but a decision cancelling a pension.[19]

27 The Tribunal had jurisdiction only over the latter because that cancellation was subject of the decision under the review. The question of refusal could only arise upon a fresh application for a pension, of which there was none.[20] Ultimately, Davies J found that the remarks concerning refusal were only in the form of a 'recommendation', and therefore did not constitute error of law by the Tribunal: the orders simply affirmed the cancellation decision.[21] Nevertheless, it is clear that the Tribunal did not have jurisdiction to made orders (as opposed to recommendations) on the 'refusal question'.

28 In Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (HBF),[22] there was a question as to whether the AAT had properly taken into account fresh evidence post-dating the primary decision. The Full Federal Court held that:[23]

It is, of course, well established that the Tribunal determines what was the correct or preferable decision having regard to the whole of the evidence placed before it. It is not confined to the evidence which was before the primary decision maker. The Tribunal is, however, obliged to address the same question as was before the primary decision maker.

29 In Comcare v Burton,[24] Finn J considered the actions of the AAT in reviewing claims arising from injuries sustained in the course of employment. Comcare accepted liability for the injuries, however one of its officers made a determination that the applicant was not entitled to taxi fares in the course of accessing medical treatment. This decision was reviewed by another delegate, who affirmed the decision. The applicant then sought review by the AAT. The applicant added a claim at this point for compensation for permanent impairment, relying on a different provision of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The AAT held that it had jurisdiction to hear both claims as it stood in the shoes of the original decision-maker, and this allowed it to determine the whole question of compensation. Justice Finn held that this was not so. His Honour considered s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ('AAT Act') (equivalent to s 53(2) of the VCAT Act) which allows the tribunal to affirm, vary or set aside the decision. His Honour held that s 43 granted the tribunal powers in relation to matters over which it had jurisdiction, but it was not the source of that jurisdiction itself.[25] His Honour held that the AAT Act granted only a power of review over a 'reviewable decision':[26]

The process of reviewing that decision is to occur in the setting of the question(s) that gave rise to the decision. And while in that process the tribunal can exercise its section 43(1) powers, it nonetheless is obliged to answer the same question(s) as was (were) before the reconsideration decision-maker.

30 It follows that Finn J found that the AAT lacked jurisdiction to consider the question of permanent impairment because that question was not before the earlier decision-maker.[27] His Honour held that it was not the Tribunal's function to determine entitlements to compensation as such (i.e. as a primary decision-maker). Rather, its function was to review decisions that had been made concerning entitlements and for that purpose to exercise, as appropriate, its s 43(1) powers.

31 In Shi v Migration Agents Registration Authority,[28] Kiefel J cited HBF with approval, stating:[29]

In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address.

32 This statement has repeatedly been cited for the proposition that the Tribunal must address the same question as the primary decision-maker.[30]

33 As Shi concerned the ability of the tribunal to take into account fresh evidence not available to the original decision maker, the comments of Kiefel J are directed to the proposition that the precise question under review will determine whether that evidence is relevant, or whether conversely that evidence could only be used to answer some other question. Her Honour discussed the decision of Davies J in Freeman as supporting this distinction:[31]

In Freeman, Davies J identified the importance of the nature of the decision under review, in determining what facts the Tribunal might take into account...His Honour held the Tribunal to have been correct to limit its consideration to the circumstances existing at the time the decision to cancel (the applicant's pension) was made. The Tribunal was entitled to take into account all the facts placed before it, but the issue was whether the decision it was reviewing, to cancel the pension, was the correct or preferable decision when it was made. It was not whether Mrs Freeman had an entitlement to a widow's pension at the date of the Tribunal's decision.

34 Her Honour came to the following conclusion in respect of the AAT, which can relevantly be applied to the jurisdictional question concerning VCAT's action in the present proceeding:[32]

There is another restriction which operates with respect to the evidence the Tribunal may consider as to this ground. The effect of the restriction appears to have been assumed in argument. The Tribunal does not acquire all the powers of the Authority but only those necessary to review the decision made by it. The Authority's decision concerned particular conduct of the appellant, which it had investigated. The Tribunal does not have all the Authority's disciplinary powers, and does not have its investigatory powers for the purposes given by the Migration Act. The question for the Tribunal is not whether there has been a breach by the appellant of the Code in any respect, but whether those identified by the Authority are established. It may use its own evidence-gathering powers to further inform itself about those matters, but those powers do not translate to general investigatory powers and cannot be used to ascertain other, inculpatory, conduct.

35 It is clear that the question for the Tribunal is not whether there has been some breach of the disciplinary rules at large but whether the breach or breaches alleged or found by the primary decision-maker are established. For the reasons I have expressed in [14] - [25] herein, I consider that the charge in its amended form raised a substantially different question from that considered by the primary decision-makers. It follows that I consider that the amendment was impermissible and that the Member has fallen into jurisdictional error.

36 I have concluded that the Tribunal did amend Charge 2 in a material way and that, in doing so, it impermissibly posed a different question to that answered by the Board. These conclusions are sufficient to persuade me that leave to appeal should be granted, and that this appeal should be allowed. Insofar as the specific grounds are concerned, Grounds 1, 2, 3 and 5 are either entirely or partly made out. It is unnecessary for me in the circumstances to determine whether the plaintiff was denied procedural fairness. It is appropriate to observe, however, that even if the Tribunal were lawfully entitled to amend the charge in the way it did, such a course ought not to have occurred without providing the affected party with adequate notice and the opportunity for full argument.

37 Section 148(7) of the VCAT Act provides broad powers to this Court. They extend to 'any order that is required to address the error and ensure resolution of the dispute in accordance with law'. I have recited the relevant findings of fact in paragraph [9] of these reasons. If charge 2 had remained in its unamended form, Greyhound Racing Victoria were required to prove that Mr Dawson permitted Mr Vass to enter and remain at the Darnum Slip Track. The facts simply do not permit such a finding. It follows that but for the alteration to the charge that I have found to constitute amendment beyond power, a finding of not guilty was inevitable. In the circumstances I shall order as follows:

(a) Pursuant to s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 that the applicant have leave to appeal to the Trial Division against his finding of guilty of breaching Rule 86(o) of the Greyhound Australasia Rules (the Order of the Tribunal).

(c) The Order of the Tribunal is set aside and, in lieu of same, I order that the applicant is not guilty of breaching Rule 86(o) of the Greyhound Australasia Rules.

(d) The applicant's 12-month suspension (currently stayed) is revoked.

[4] Pursuant to Rule 4.14(3) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008.

[5] Leave will be granted if there is a question of law.

[6] Swan v Uecker [2016] VSC 313, [6].

[7] CB Cold Storage Pty Ltd v IMCC Group (Australia) Pty Ltd [2017] VSC 23, [12] (citing Ovidio Carrideo Nominee Pty Ltd v The Dog Depot [2006] VSCA 6, [59] and Spilking v Rosenberg [2011] VSCA 128, [42]).

[8] Dawson v Greyhound Racing Victoria (Review and Regulation) [2016] VCAT 712, [47].

[9] This informal amendment is contained in [10] of these reasons, which reproduces paragraph [8] of the Tribunal's reasons.

[10] It is common ground that the other conduct embraced by Rule 86 (negligent, corrupt, fraudulent or dishonest) has never been alleged in this matter.

[11] R v Solicitors Disciplinary Tribunal; Ex parte L (a solicitor) [1988] VicRp 72; [1988] VR 757; Kyriackou v Law Institute of Victoria Ltd [2014] VSCA 322.

[12] See, for example, Transcript the VCAT Review hearing dated 15 April 2016 ('T') ,122.

[15] [2011] VSCA 257; (2011) 207 A Crim R 566, 576 [16].

[17] [1988] FCA 294; (1988) 19 FCR 342.

[18] [1988] FCA 294; (1988) 19 FCR 342, 345.

[19] [1988] FCA 294; (1998) 19 FCR 342, 345.

[20] [1988] FCA 294; (1988) 19 FCR 342, 345.

[21] [1988] FCA 294; (1988) 19 FCR 342, 346.

[22] [1992] FCA 599; (1992) 39 FCR 225.

[23] [1992] FCA 599; (1992) 39 FCR 225, 234 (emphasis added).

[24] [1998] FCA 1144; (1998) 157 ALR 522.

[25] [1998] FCA 1144; (1998) 157 ALR 522, 528.

[26] [1998] FCA 1144; (1998) 157 ALR 522, 528.

[27] [1998] FCA 1144; (1998) 157 ALR 522,529.

[28] [2008] HCA 31; (2008) 235 CLR 286.

[29] [2008] HCA 31; (2008) 235 CLR 286, 327, [142] (citation omitted).

[30] See for example Hood v The Secretary, Department of Families (2010) FCA 555, [12] (Ryan J); Environment Centre Northern Territory (NT) Inc v Minister for Land Resource Management (2015) 35 NTLR 140, 156 [21] (Hiley J).

[31] [2008] HCA 31; (2008) 235 CLR 286, 328 [144].

[32] [2008] HCA 31; (2008) 235 CLR 286 329, [147] (citations omitted) (emphasis added).