Dr Ross Gregory Pedrana v Racing NSW

Principles of Statutory Interpretation 18It is now trite that a statute must be construed as a whole and so as to provide that each of its terms are intended to give effect to harmonious goals. Each of its terms must be construed on the basis that it achieves that result that will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [70], per McHugh, Gummow, Kirby and Hayne JJ; see also CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ. 19It is the foregoing approach that must be applied in construing s 14(2)(b) of the Act and the provisions relating to the capacity of the Australian Rules to provide greater powers than might otherwise be the subject of legislative authority.

The Plaintiff's Case 20Initially the plaintiffs relied on the following grounds to submit that the provisions of Local Rule 82C are invalid: that a vet was not "another person associated with racing" within the meaning of s 14(2)(b) of the Act; that the licensing system implemented by Racing NSW was inconsistent with the Veterinary Practice Act 2003; and that the restrictions on the conduct and liberty of vets were outside the capacity of Racing NSW. 21I will deal last with the construction of s 14(2)(b) of the Act. The operation of the Veterinary Practice Act was utilised in two quite distinct ways. First, at least initially, the plaintiffs submitted the licensing of vets was, itself, inconsistent with the registration and licensing system, and its ancillary scheme of regulation, embodied in the Veterinary Practice Act. The second aspect, a nuance on the first, was that the independent operation of a registration and licensing system, together with the scheme of regulation for veterinary practitioners, could be used as support for the statutory construction that vets were never intended to be "another person associated with racing" and subject to a further scheme of regulation over and above the regulation as a veterinary scientist. 22First, the provisions of the Veterinary Practice Act and the Act are enacted by the same legislature. There is no principle by which statutes of the same legislature are subordinate to each other. The terms of the statute, and any inconsistency, are resolved on ordinary statutory construction issues, repeal or variation by implication: legis posteriores priores contraias abrogant. 23In Goodwin v Phillips (1908) 7 CLR 1, the High Court dealt with such issues. It is clear from that judgment, and the many judgments adopting the classical approach therein, that a later statute will, if there be necessary inconsistency, repeal by implication, or vary by implication, the earlier statute with which it is inconsistent. 24Nevertheless, the Court must be satisfied that the two statutes (or those parts said to be inconsistent) are so inconsistent or repugnant that they cannot stand together before a court will construe the later statute as impliedly repealing the earlier enactment. The foregoing assumes no express variation or repeal. 25Nowadays, even implied repeal is a complicated task. Most legislation is updated from time to time and while the latest version of a statute may post date the latest version of another statute, an inconsistent approach will be difficult where earlier versions of each statute exist and have been re-enacted in a former version that is unamended. Thus, the Thoroughbred Racing Act 1996 remained relatively unamended until approximately 10 February 2003 and was then amended on 1 July 2004, 1 October 2004, 1 July 2005, twice in 2006, four times in 2008, once in 2009, twice in 2010, three times in 2011, once in 2013, and the latest version is as at 1 January 2014. The 1996 Act contained the same provision as currently in exists s 14(2)(b) of the Act, which has remained unamended since its promulgation. 26The Veterinary Practice Act 2003 provides for the registration (and refusal of registration) for veterinary practitioners, the effect of which is that they can engage in restricted veterinary practices and the basis for such registration is academic completion of qualifications (or that which the Board approves as equivalent). In similar fashion to the Act governing thoroughbred racing, the Veterinary Practice Act 2003 was promulgated and remained unamended until 6 July 2004. It was amended on three occasions in 2004; once in 2005; once in 2006; once in 2007; once in 2009; twice in 2010; once in 2011; once in 2013 and twice in 2014. It replaced the Veterinary Surgeons Act 1986, which had similar provisions for the registration of veterinary surgeons (as then called). Registration of veterinary surgeons can be traced back to the Veterinary Surgeons Act 1923. 27In those circumstances, which of the two statutes is the later in time? In my view it is unnecessary to answer the question. 28There is much to be said for the principle adopted in the approach of the defendant in utilising the existence of each scheme of registration and/or licensing in construing the effect of the other statute. In other words, if the modern approach to statutory construction is the achievement of harmonious goals, it must be expected, at least in a perfect world, that harmonious goals will be achieved by the promulgation of different statutes of the same legislature. A construction which achieves such harmony should be preferred. 29Nevertheless, the foregoing assumes that the goals achieved by the Veterinary Practice Act and the Thoroughbred Racing Act may not be harmonious. In my view, there is no tension between the two statutes. 30The Veterinary Practice Act allows the Board appointed under the Veterinary Practice Act, to refuse to register an applicant if the applicant is not of good character; has been found guilty of certain offences; has been refused registration as a veterinary practitioner in another jurisdiction; upon satisfaction that the applicant is not fit to practice veterinary science; or because the applicant has refused to make a declaration of the relevant kind relating to conduct. The qualifications for registration (full registration) is, as earlier stated, academic. Nevertheless, the Board appointed pursuant to the Veterinary Practice Act is required to look at the applicant as a veterinary practitioner and in no other capacity. As a consequence, for example, association with persons who had been involved in the fixing of races may not, on its face, render the applicant "not of good character" nor otherwise form a basis upon which the Board could refuse registration as a vet. 31The purpose and effect of the Thoroughbred Racing Act is, in that sense, directed at a wholly different subject matter. The purpose of the Act is to control and regulate racing and, in that respect, the protection of the public interest. The licensing of vets is for the achievement of that purpose. While there may be a condition that the vet continue to be registered under the Veterinary Practice Act (understandably), the purpose and subject matter of the registration under the Thoroughbred Racing Act (assuming that it is otherwise valid) is the effect that vets have on the performance of racehorses and the consequential integrity of racing in New South Wales. 32There is not, in my view, the kind of inconsistency that is required to conclude that there is a subsequent implied repeal of one statute by another. Further, the existence of each of the schemes does not lead to a conclusion that the goals of both statutes, read together, are otherwise than harmonious. Even a limited degree of overlapping or repetitive conditions would not lead to such a finding. 33There is no inconsistency between the Veterinary Practice Act, on the one hand, and the Thoroughbred Racing Act, on the other, and no invalidity in the registration of veterinary practitioners under the Thoroughbred Racing Act as a consequence of such a ground. 34I turn then to deal with the fundamental basis upon which the plaintiffs put their case, namely, that a veterinary practitioner is not "another person associated with racing". There are a number of bases upon which this argument is agitated. First, it is said that the provisions of s 14(2)(b) of the Act describe a genus into which vets do not fit. Secondly, it is said that the term "associated with racing" is insufficiently broad to encompass vets. The second is, in some senses, a particular of the first. 35The use of the term "another" tends to suggest that each of the previously enumerated words form a broad class from which one can derive particular attributes that would be required for a person to be "another person" associated with racing. The attribute to which the plaintiffs point is that, it is said, each of the listed classes of persons earn their income directly from racing. 36In that sense the plaintiffs urge an application of the ejusdem generis rule: see, for example, Re Latham (deceased) [1962] Ch 616. 37The difficulty with the foregoing approach is that the enumerated classes of persons are a very broad group. Some are employed directly by trainers. Some are employed directly by owners. Each has a direct impact upon the integrity of race meetings. Thus the group, if it be a genus, would need to be of such a broad category that it included race clubs and owners together with stable hands. At the same time it would also need to include bookmakers and bookermakers' clerks. In other words, it is not confined to those persons engaged directly in the conduct of race meetings, but includes those who bet on races. 38It seems to me that if there be a need to determine a genus to which the term "another" relates, it is the group of persons whose conduct will or may directly or indirectly effect the integrity of a race meeting and the public's involvement in wagers thereon. 39Thus, it would include persons who would be privy to inside information, the knowledge of which provides an unfair advantage if wagers were to be placed or the distribution of wagers may distort and affect the integrity of the betting system and, thereby, horseracing. 40Such a genus accords with the purpose of the Act and the establishment of Racing NSW, as otherwise described under the terms of the statute. 41I turn to the meaning of the term "associated" in the context of s 14(2)(b) of the Act. In the context of this statute and this particular provision, the term "associated with racing" means connected directly or indirectly with racing. 42The Australian Concise Oxford Dictionary, 4th Edition, defines "associate", relevantly, to include a definition equivalent to "connect in the mind" or "to join or combine" or "to combine for a common purpose" or "to meet frequently or have dealings" (particularly, in the last mentioned definition, when followed by the word "with"). It is also defines the word to mean "a thing connected with another or joined in function or allied in the same group or category". See also Lilley v Lindsay-Smith [2001] WASCA 168 at [46], [47], per Hasluck J (relating to associated work) and Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 9) [2007] FCA 31. 43It seems to me properly construed the term "another person associated with racing" includes, at least, a person connected, directly or indirectly with racing, whose conduct affects the integrity of race meetings and thereby the public interest as it relates to horse racing. 44Veterinary scientists (or practitioners) are persons who are at least indirectly connected with racing and whose conduct directly affects the integrity of racing meets and the public interest as it relates to the horse racing industry. 45As a consequence, s 14(2)(b) of the Act contains a power for Racing NSW to license veterinary practitioners who are treating horses that are racing or in-training for racing (as that latter term has been defined).

Licensing Conditions 46Much effort was expended by the plaintiffs to prove that the licensing regime implemented by Racing NSW significantly impacts upon the liberties of citizens or persons operating in New South Wales (and possibly beyond). The terms of the licence, already described, purport to impose upon any vet, who seeks to register, agreement to conditions such as consent to search and seizure, the ousting of the civil jurisdiction of the courts in some respects and the submission to the exclusive jurisdiction of the Stewards established under the Rules of Racing. 47It is unnecessary for the Court to deal with this aspect. Vets who register are not members of Racing NSW and are not bound, under a contract inter se, between the vet and Racing NSW. Racing NSW is not an association. 48A refusal to abide by the terms seemingly imposed and/or accepted under the registration application may result in registration being refused or revoked. Were it to result in revocation (which it may on one view of the defendant's argument), very different issues would arise as to the validity of any such condition. 49It would seem, without finally dealing with the issue, that any such condition would not be a necessary condition in order to achieve registration and licensing in the public interest as it relates to the racing industry. Nevertheless, as Racing NSW correctly submits, the plaintiffs seek a declaration that Local Rule 82C is invalid. Local Rule 82C involves only registration and licensing and not any attempt to impose conditions for licensing or for registration. 50For the foregoing reasons, the Court issued the orders it did on 24 March 2014, which were in the following terms: (i)Summons dismissed. (ii)Reasons reserved. (iii)Subject to Order 4, the plaintiffs pay the defendants costs of and incidental to the proceedings. (iv)Any party seeking a special or different order as to costs shall file and serve an application therefor within fourteen (14) days of the publication of the reasons for judgment. Such application shall be accompanied by an outline of submissions of no more than three (3) pages and any documentation upon which the party relies. (v)Any party affected by any proposed vacation or variation of Order 3, herein may reply thereto. Any such reply shall be filed and served within seven (7) days of the receipt of the aforementioned application and shall be subject to the same conditions as to length and accompanying documents as set out above for the application. (vi)Parties have liberty to approach my Associate and restore the matter on two days' notice. 51Having published the reasons for judgment, the Court will vacate its reservation of reasons and otherwise dismiss the proceedings.

Amendments 24 April 2014 - Typographic Error: "Training" changed to "Treating" Amended paragraphs: 45 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 April 2014