Dr Ross Gregory Pedrana v Racing NSW

Judgment 1HIS HONOUR: Each plaintiff is a veterinary scientist (vet) who, as part of his practice, treats racehorses. Each challenges the licensing system introduced by the defendant for such vets. 2On 19 December 2013, the Court issued interlocutory orders maintaining and reinstating the status quo ante pending final hearing. On 19 March 2014, the final hearing occurred and on 24 March 2014, the Court issued orders dismissing the proceedings, with judgment for the defendant. At the time, the Court reserved its reasons for judgment. These are the reasons.

Facts and Regulatory History 3The defendant, Racing NSW, is established as a body corporate by operation of s 4 of the Thoroughbred Racing Act 1996 (the Act). Its committee membership is appointed by the Minister and the Act gives Racing NSW the following functions and powers: "s 13 Functions of Racing NSW (1) Racing NSW has the following functions: (a) all the functions of the principal club for New South Wales and committee of the principal club for New South Wales under the Australian Rules of Racing, (b) to control, supervise and regulate horse racing in the State, (b1) such functions in relation to the business, economic development and strategic development of the horse racing industry in the State as are conferred or imposed by this Act, (c) to initiate, develop and implement policies considered conducive to the promotion, strategic development and welfare of the horse racing industry in the State and the protection of the public interest as it relates to the horse racing industry, (d) functions with respect to the insuring of participants in the horse racing industry, being functions of the kind exercised by the AJC on the commencement of this section, and such other functions with respect to insurance in the horse racing industry as may be prescribed by the regulations, (e) such functions as may be conferred or imposed on Racing NSW by or under the Australian Rules of Racing or any other Act, (f) such functions with respect to horse racing in New South Wales as may be prescribed by the regulations. (2) The functions of Racing NSW are not limited by the Australian Rules of Racing and are to be exercised independently of the Australian Racing Board. (3) The AJC ceases to have the functions that are solely the functions of the principal club for New South Wales or committee of the principal club for New South Wales under the Australian Rules of Racing. (4) In this section: "AJC" means the club known as the Australian Jockey Club as referred to in the Australian Jockey Club Act 1873 on the commencement of this section. s 14 Powers of Racing NSW (1) Racing NSW has power to do all things that may be necessary or convenient to be done for or in connection with the exercise of its functions. (2) Without limiting subsection (1), Racing NSW has power to do the following: (a) investigate and report on proposals for the construction of new racecourses, and inspect new racecourses or alterations or renovations to existing racecourses, (b) register or licence, or refuse to register or licence, or cancel or suspend the registration or licence of, a race club, or an owner, trainer, jockey, stablehand, bookmaker, bookmaker's clerk or another person associated with racing, or disqualify or suspend any of those persons permanently or for a specified period, (c) supervise the activities of race clubs, persons licensed by Racing NSW and all other persons engaged in or associated with racing, (d) inquire into and deal with any matter relating to racing and to refer any such matter to stewards or others for investigation and report and, without limiting the generality of this power, to inquire at any time into the running of any horse on any course or courses, whether or not a report concerning the matter has been made or decision arrived at by any stewards, (e) allocate to registered race clubs the dates on which they may conduct race meetings, (f) direct and supervise the dissolution of a race club that ceases to be registered by Racing NSW, (g) appoint an administrator to conduct the affairs of a race club, (h) register and identify galloping horses, (i) disqualify a horse from participating in a race, (j) exclude from participating in a race a horse not registered under the Rules of Racing, (k) prohibit a person from attending at or taking part in a race meeting, (l) impose a penalty on a person licensed by it or on an owner of a horse for a contravention of the Rules of Racing, (m) impose fees for registration of a person or horse, (n) require registered race clubs to pay to it such fees and charges (including fees for registration of a race club) as are required for the proper performance of its functions, calculated on the basis of criteria notified to race clubs by Racing NSW, (o) consult, join, affiliate and maintain liaison with other associations or bodies, whether in the State or elsewhere, concerned with the breeding or racing of galloping horses, (p) enter into contracts, (q) acquire, hold, take or lease and dispose of real and personal property whether in its own right or as trustee, (r) borrow money, (s) order an audit of the books and accounts of a race club by an auditor who is a registered company auditor nominated by Racing NSW, (t) scrutinise the constitutions of race clubs to ensure they conform to any applicable Act and the Rules of Racing and that they clearly and concisely express the needs and desires of the clubs concerned and of racing generally, (u) publish material, including periodical publications, to inform and keep informed the public concerning matters relating to racing, whether in the State or elsewhere, (v) undertake research and investigation into all aspects of the breeding of horses and of racing generally, (w) take such steps and do such acts and things as are incidental or conducive to the exercise of its powers and the performance of its functions." 4The general registration and licensing functions of Racing NSW are governed by s 14AA of the Act, which is in the following terms: "s 14AA Registration and licensing functions of Racing NSW-general (1) Racing NSW is to exercise its registration and licensing functions so as to ensure that any individuals registered or licensed by Racing NSW are persons who, in the opinion of Racing NSW, are fit and proper persons to be so registered or licensed (having regard in particular to the need to protect the public interest as it relates to the horse racing industry). (2) Without limiting subsection (1), a person is not to be so registered or licensed if the person has a conviction and Racing NSW is of the opinion that the circumstances of the offence concerned are such as to render the person unfit to be so registered or licensed. (3) This section does not limit any provisions of the Rules of Racing relating to the exercise of the registration and licensing functions of Racing NSW. (4) In this section: "conviction" has the meaning given by the Criminal Records Act 1991 but does not include a conviction that is spent under that Act. "registration and licensing functions" means the functions referred to in section 14 (2) (b)." 5There is a specific provision, s 14A of the Act, governing the registration and licensing of bookmakers. Other than noting its existence, it is unnecessary to deal with s 14A of the Act. 6As set out above, s 14(2)(b) of the Act grants to Racing NSW the power to register or to license "an owner, trainer, jockey, stablehand, bookmaker, bookmaker's clerk or another person associated with racing". Purportedly pursuant to that power, Racing NSW has enacted a local rule requiring vets treating racehorses, or horses in training, to be licensed with Racing NSW. 7The aforementioned local rule is Local Rule 82C (LR 82C) and is one of a number of local rules. Each of the plaintiffs derives his income, wholly or substantially, from the treatment of racehorses training for, or competing in, races in NSW. 8On 7 November 2013, Racing NSW published its new rule, LR 82C, and announced it would have effect on and from 1 December 2013. Its announcement in part was in the following terms: "Racing NSW is duty bound to act in the interests of thoroughbred horse racing in this State. The integrity of the industry is critical and is fundamental to the confidence of the public and the punter. It is essential to the integrity of thoroughbred racing that all persons involved in the care, welfare and management of the horse are bound by the same rules, required to assist the Stewards in their investigations and inquiries and subject to the same sanctions if they breach the rules." 9Racing NSW published application forms: one for general vets treating horses in training; another for stable vets, i.e. those seeking to treat horses at a race meeting or barrier trial or to enter the horse stall area. The allegedly relevant conditions for each licence are the same. 10By signing the application for registration, a vet would purportedly be submitting to the jurisdiction of the Principal Racing Authority; be submitting to the policies, directions, rules and regulations promulgated from time to time; restricting his or her ability to comment on any matter that was being investigated by Racing NSW; and, it seems, agreeing not to be exempt from personal liability. 11The application was in the following terms: "The [veterinary practitioner] acknowledges and agrees to be subject to and be bound by/agree to the below: (a) The Rules of Racing of each Principal Racing Authority as amended or varied by each Principal Racing Authority from time to time... (b) The terms and conditions of licence and licence acknowledgments as published by each Principal Racing Authority; (c) Such rules, regulations, policies and directions as may from time to time be formed, made or given by each Principal Racing Authority, the stewards of each Principal Racing Authority ("Stewards") or the officials of any racing club registered by each Principal Racing Authority to conduct thoroughbred racing under the Rules ("Club"); (d) The [veterinary practitioner] submits to the exclusive jurisdiction of each Principal Racing Authority, its officials and Stewards in respect of all matters arising in relation to racing in the State or Territory of that Principal Racing Authority; (e) That the licence may be revoked at any time by a Principal Racing Authority without the giving of any reason in accordance with the Rules; (f) Not to make any public statement or comment concerning any matter currently the subject of investigation or hearing by a Principal Racing Authority, or the Stewards, Committee or Appeals panel or other body authorised by each; (g) That [the veterinary practitioner] shall not be exempt from personal liability arising under the Rules for or by any reason whatsoever." 12The functions of Racing NSW are prescribed by s 13 of the Act, as set out above, and the powers are generally prescribed by s 14 of the Act, also set out above. By operation of s 13(1)(a) of the Act, Racing NSW was granted all the functions of the principal club and its committee, and the functions conferred by the Australian Rules of Racing: see s 13(1)(e) of the Act. 13Prior to Racing NSW being legislatively granted the status as principal club in NSW, the Australian Jockey Club (NSW) (AJC) was the principal club. The AJC had members bound inter se by its rules. Racing NSW has no members, in the unincorporated association sense. It has a committee appointed by the Minister. Nevertheless, the Act allows the Australian Conference of Principal Racing Clubs to confer, through the Australian Rules of Racing (Australian Rules), powers or functions on Racing NSW. 14A power to license is also granted by the Australian Rules to each principal club, and the power is expressly to license "jockeys, trainers and others". All vets are registered with the Veterinary Practitioners Board of New South Wales and are required by the terms and conditions of the general licence to continue to be so registered. 15As is clear from the foregoing, s 14AA of the Act requires persons who are licensed by Racing NSW to be persons who, "in the opinion of Racing NSW, are fit and proper persons...(having regard in particular the need to protect the public interest as it relates to the horse racing industry)". 16Local Rule 82C is in the following terms: "LR 82C (1) a. No veterinarian shall provide services to a horse in training and/or competing in New South Wales unless that veterinarian is licensed by Racing NSW or, in the case of a veterinarian that principally carries on business in Queensland, by Racing Queensland. b. A trainer shall not allow a horse under his care or control in New South Wales to receive veterinary services from any person other than a veterinarian who is licensed by Racing NSW or, in the case of a veterinarian that principally carries on business in Queensland, by Racing Queensland (2) Subrule (1) of this rule does not apply in emergency circumstances where the health or welfare of a horse is at risk if veterinary services are not provided immediately and a licensed veterinarian is not available to provide those services. (3) For the purposes of this rule: "licensed veterinarian" means a veterinarian licensed by Racing NSW or Racing Queensland; "veterinary services" means any services (including the prescribing or provision of any medication) provided to or in connection with a horse by a person who is qualified to practice veterinary science." 17As can be seen Local Rule 82C provides for the licensing of vets and also prohibits trainers (who are otherwise subject to licensing requirements) from allowing a horse under the trainer's care or control to receive veterinary services from anyone other than a licensed veterinarian.