1. On or before 27 November 2017, Ms Goodrich is to:
   1. Advise the Tribunal as to whether she accepts the offer from Racing Victoria that, with the parties' consent, the Tribunal order:
      1. The decision and penalty of the Racing Appeals and Disciplinary Board dated 10 March 2017, the subject of this review proceeding, is set aside; and
      2. Racing Victoria is to pay Ms Goodrich's costs in this proceeding'; or, if the applicant does not consent to the orders being made: or

1. File and serve written submissions concerning the potential that the Tribunal will;
   1. of its own initiative, under s 75 for the Victorian Civil and Administrative Tribunal Act 1998 strike out or dismiss this proceeding as an abuse of process; and/or
   2. under s 51A for the Victorian Civil and Administrative Tribunal Act 1998 invite Racing Victoria to reconsider the decision under review.

1. If Ms Goodrich consents to the above orders being made (see Order 1), the Tribunal will make those orders, bringing this proceeding to an end.
2. If Ms Goodrich files and serve submissions, Racing Victoria may, on or before 11 December 2017, file and serve submissions in response.
3. If submissions are filed and served the Tribunal intends to decide whether or not to:

1. Of its own initiative, strike out or dismiss the proceeding without further hearing; or 2. Invite Racing Victoria to reconsider the decision under review; or

1. Order the filing and serving of material and set a hearing date.

1. On 4 January 2017, Ms Kate Goodrich, a trainer licensed by Racing Victoria was charged with, on 12 December 2016 in contravention of the Australian Rules of Racing 8D (AR 8D), in that by:

1. Not allowing Racing Victoria Stewards to conduct a race day stable inspection at her premises; 2. Not allowing the Stewards to examine a horse which was entered to later that day race at the Kilmore Racecourse; and

1. Refusing to obey a reasonable direction from a Steward to allow an inspection of the horse;

1. Obstructed and/or hindered the Stewards from exercising the powers vested in them by AR 8D and/or carrying out their duties; and/or
2. Refused to have a reasonable directions of the Stewards where those directions were made in the exercise of powers under AR 8D and/or in the carrying out of their duties.

1. On 12 December 2016, two men identifying themselves as Stewards arrived at Ms Goodrich's training property and asked to inspect a horse scheduled to run later that day at Kilmore. Ms Goodrich's objection related to a dispute which has arisen between her, the Kilmore Horse Racing Club and Racing Victoria (the Dispute). Ms Goodrich noted she had never before refused a request to inspect and offered to take the horse to Kilmore, whether the horse raced or not, for inspection.
2. Later that day, Racing Victoria Stewards conducted an Inquiry at Kilmore, with Ms Goodrich attending by telephone. Ms Goodrich confirmed she had refused to permit the Stewards to inspect the horse, saying that either her or her partner, Mr Jon Hassall had offered to permit the Stewards to inspect the horse with Victoria Police in attendance, an offer the Stewards refused. Ms Goodrich referred to the Dispute and to a letter she had written to the CEO saying she did not want the Racing Victoria Integrity Department to come to her property while the Dispute remained unresolved. The Inquiry decided to remove the horse from the race that afternoon and adjourn the matter to a date to be fixed.
3. By letter dated 13 December 2016, Mr Terry Bailey, Chairman of Stewards, wrote to Ms Goodrich, informing her that given the seriousness of not allowing Stewards onto the property, the Stewards would not be approving her nominations and entries until issues arising from 12 December were resolved. He also asked her to contact the Stewards as soon as practicable, "so that we may work together to resolve the concerns that you may have, and to allow the horses that you trained to be nominated and entered."
4. By letter dated 29 December 2016, Racing NSW advised Ms Goodrich that given Racing Victoria's decision it would not accept nominations until the Victorian matter was resolved.
5. It appears Ms Goodrich made no response until in late December she filed an appeal concerning the decision not to approve her nominations and entries. At a directions hearing on 18 January 2017 before the Racing Appeals and Disciplinary Board (RAD Board), Ms Goodrich consented to the position that she not be permitted to nominate horses for races until the issues before the RAD Board, related to 12 December, were resolved.
6. On Monday 6 March 2017 the matter concerning 12 December again came before the RAD Board. Mr Appudurai of Counsel appeared for Ms Goodrich. With Ms Goodrich having at that stage very recently changed counsel, Mr Appudurai sought an adjournment. The Board adjourned the proceeding to Friday, 10 March 2017.
7. In the course of discussions on 6 March, Mr Appudurai referred to potential issues of mitigation, related to the Dispute. The RAD Board indicated it regarded the matter before it as a discrete matter. One board member expressed concern that Ms Goodrich may be attempting to use the RAD Board proceeding as a Trojan Horse for collateral purposes.[1]
8. On Friday 10 March 2017, Ms Goodrich, through Mr Appudurai, plead guilty to on 12 December 2016 breaching AR 8D. He further submitted that given that the only reason for Ms Goodrich refusing the inspection was the Dispute and the fact that she had already in effect served a suspension, the RAD Board should find Ms Goodrich guilty and either dismiss the charge or decide no further penalty should be imposed.
9. The Stewards submitted that the 12 December inspection was a routine inspection on a day when Stewards were visiting a number of properties. Ms Goodrich refused to permit an inspection unless the Stewards were accompanied by Police. The Stewards acknowledged the Dispute and described matters as difficult and complex.
10. As recorded in the RAD Board's written reasons the Board was aware of the Dispute. The Board did not regard the matter before it as a time to investigate the long history of the Dispute. The Board observed it is a very serious matter to prevent the Stewards from making an inspection. It was considering immediate disqualification or suspension. However, the Stewards urged a type of penalty that would encourage Ms Goodrich to allow future inspections and ensure that she did not commit a similar offence again. The Board suspended Ms Goodrich for three months but immediately suspended that penalty for 12 months. In other words, if Ms Goodrich again made such a breach in the next 12 months she would be dealt with for that further offence and in addition the three month suspension period would be reactivated.
11. On 26 April 2017, VCAT received Ms Goodrich's application for review of the Board's decision. This was followed by multiple consent adjournments until on 11 September 2017, the proceeding came before me at a directions hearing. The parties advised me the matter may settle by consent. I ordered the parties to provide further advice in writing to the Tribunal.
12. By correspondence dated 4 October 2017, Racing Victoria advised VCAT that it consented to the Tribunal making orders disposing of this proceeding by setting aside the Board's decision of 10 March 2017 and ordering Racing Victoria pay Ms Goodrich's legal costs in the proceeding.
13. Racing Victoria put the view that there was no utility in the proceeding continuing and predicted if this matter proceeds a series of interlocutory applications would be made by the parties such that by the time the matter came on for hearing, the 12 month suspension period, which under the RAD Board's decision ends on 10 March 2018, would likely be largely spent.
14. By correspondence dated 9 October 2017, solicitors for Ms Goodrich submitted that Racing Victoria's proposed resolution of the proceeding is not the most advantageous resolution potentially available to Ms Goodrich and that Ms Goodrich would not be in a position to properly evaluate Racing Victoria's offer until she had been provided with relevant instruments of delegation/appointment of the Stewards (the Instruments) who came to her property on 12 December 2016.
15. On 15 October 2017, I scheduled a directions hearing in the proceeding and directed the principal registrar not to issue any witness summons seeking the Instruments until I had heard submissions. I gave short reasons:

An unusual scenario has arisen in this proceeding whereby the respondent seeks consent orders, by email dated 4 October 2017, setting aside the decision on penalty of the Racing Appeals and Disciplinary Board dated 10 March 2017 and that Racing Victoria pay the applicant's costs of this proceeding.

This is, on its face and subject to submissions, the optimal outcome in this proceeding which the applicant could achieve.

The question arises whether the applicant further pursuing issues in this proceeding is an abuse of process. In this circumstance, unless the parties agree consent orders beforehand, a directions hearing is required in this proceeding. It is not appropriate to at this time leave open the possibility of Racing Victoria being required to respond to a summons for documents, as foreshadowed the email on behalf of the applicant dated 9 October 2017.

1. On 31 October 2017, the matter came before me at a directions hearing. Mr Appudurai submitted Ms Goodrich had the right to seek "exoneration" via VCAT. He submitted:
   1. Racing Victoria was resisting providing him with the Instruments. He submitted that if he obtained them and the Stewards were not properly appointed, the original charges against Ms Goodrich must fail. If the Stewards were properly appointed his advice to his client would differ; and
   2. The proposed orders were not the optimal outcome for Ms Goodrich. An optimal outcome would include a finding of not guilty and potentially the uncovering of evidence which may support legal action seeking compensation, not at VCAT, with respect to damage suffered by Ms Goodrich, at least in part as I understood it, from her not being able to enter horses to race in Victoria and New South Wales following the decisions described above.
2. During Mr Appudurai's submissions I raised the issue that while Racing Victoria was now offering to pay Ms Goodrich's costs, she should not assume that after a hearing VCAT would necessarily make a costs order in her favour. Mr Appudurai confirmed he had discussed that issue with his client.
3. Mr Rush for Racing Victoria submitted that doing anything other than making the orders as Racing Victoria had proposed, and continued to propose, would be an abuse of process. He submitted VCAT should make the orders.
4. Mr Rush confirmed that the Instruments had not been provided to Ms Goodrich's lawyers. I do not understand why this is so. In most legal proceedings this would be an uncontentious matter. However, Mr Rush advised that his instructions were that if Ms Goodrich summonsed the Instruments in this proceeding, Racing Victoria would not seek to have the summons set aside.
5. At the directions hearing, the parties provided me with documents relevant to the proceeding including the correspondence referred to above and transcript of the relevant Inquiry, not including transcript of the RAD Board's 18 January 2017 directions hearing, which is referred to in later transcript.
6. I advised the parties that I would reserve my decision on whether this matter should proceed but that if it was to proceed, with the matter now before VCAT for approximately half a year, it was time to schedule the hearing. Mr Rush advised that if the matter was to go to hearing, three days should be allocated and that he anticipated two days of legal argument. A hearing in December 2017 seems feasible.

1. As a creature of statute, VCAT only has power to take steps in a proceeding if the VCAT Act confers that power on the Tribunal, express or implied. Sections 75 confers relevant power.
2. Section 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) relevantly says:

75 Summary dismissal of unjustified proceedings

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion -

(a) is frivolous, vexatious, misconceived or lacking in substance; or

1. Speaking generally of summary or final judgment, which s 75 empowers VCAT to make, the High Court in Fancourt v Mercantile Credits Ltd (1983) HCA 25; (1983) 154 CLR 87 [at 99] said:

the power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried

1. The determination of an application under s 75 does not contemplate a detailed consideration of the evidence and does not require a mini-hearing of the merits.[2]
2. As Mr Rush submitted, and as I have previously referred to in other decisions, [3] in the Supreme Court of Victoria's decision in J&C Cabot and Another v City of Keilor and Another [1994] VicRp 14; [1994] 1 VR 220, an appeal from the then Administrative Appeals Tribunal of Victoria to the Court, Gobbo J noted no challenge had been made before the AAT concerning the use of the tests adopted by the Tribunal as to what constituted vexatious or frivolous conduct. The AAT had adopted the test for vexatiousness expressed by Roden J in Attorney-General (Vic) v Wentworth (1988) 14 N.S.W.L.R. 481 at p 491:

It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:

1. proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought;
2. they are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise;
3. they are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
4. In relation to "abuse of process" as it appears in s 75(1)(b), VCAT has held:

what constitutes an abuse of process must be a question of degree, and would depend on the circumstances of each case. The rationale behind the power to strike out a proceeding for abuse of process is to protect the interests of justice and preserve the integrity of the Tribunal's processes.[4]

1. In Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130, Robson AJA[5] summarised (from [93]) the principles of abuse of process. This included (at [94]-[95]):

Recently, the High Court of Australia in Michael Wilson & Partners Ltd v Nicolls reaffirmed what constitutes an abuse of process. They confirmed that what amounts to abuse of process is insusceptible of a formulation comprising closed categories. They cited with approval Ridgeway v R where Gaudron J noted that the concept extended to proceedings "instituted for an improper purpose" and to proceedings that are "seriously and unfairly burdensome, prejudicial or damaging" or "productive of serious and unjustified trouble and harassment."

In Rogers v R, McHugh J summarised the categories of abuse as follows:

Inherent in every court of justice is the power to prevent its procedures being abused. Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process.

1. In the circumstances of this proceeding, VCAT also has powers under s 51A of the VCAT Act. At any time in a proceeding for review of a decision, VCAT may invite the decision-maker to reconsider the decision. If this were to happen in this proceeding, it appears, subject to submissions, open to the RAD Board to return to the issue that was before it and potentially set aside the decision under review. That said, I am not aware of any such precedent for this course of action and with this issue also not discussed at the directions hearing before me, I am unaware of Racing Victoria's position concerning this possibility.

1. While not discussed the directions hearing, in the current circumstances of this proceeding, VCAT does not have the power to summarily end this proceeding by way of the orders Racing Victoria seeks, opposed by Ms Goodrich.
2. This is because s 75 does not, in review proceeding, empower the Tribunal to set aside a decision under review on a summary basis; see Kellam J and Baker Smith DP in L v Nurses Board of Victoria (1999) 16 VAR 125 [at page 128].
3. However, in my view, VCAT does have the power to;
   1. Invite Ms Goodrich to consent to Racing Victoria's proposed orders (in which case the orders would be made); and
   2. If she declines, invite submissions from the parties as to whether the proceeding should be struck out or dismissed under s 75 on the basis that at that point Ms Goodrich continuing with this proceeding is an abuse of process, or, whether VCAT should under s 51A invite reconsideration of the decision under review.
4. Subject to further submissions, my current view is such refusal could well be an abuse of process.
5. It is difficult to see how Ms Goodrich can achieve at VCAT in this proceeding an outcome better than that proposed by Racing Victoria.
6. The only apparent defence to the charge concerning 12 December 2016 would be that of a technical nature should the Instruments of delegation/appointment of the Stewards was in some way defective.
7. If VCAT decides this matter after hearing the evidence, standing in the shoes of the RAD Board it will exercise the RAD Board's powers as set out in LR 6E "Powers of the RAD Board":
   • (1) Decisions of the RAD board in relation to a proceeding: the RAD board may in the hearing or determination of any matter:
     • (a) draw inferences of fact:
     • (b) penalise any person, and for that purpose a reference in the rules to any penalty by the directors, the Stewards or committee of a racing club includes a penalty by the RAD board; and
     • (c) give any judgement or decision or make such orders as in the RAD board's opinion the justice of the case requires.
8. If VCAT were to find that the appointment of the Stewards who attended the property on 16 December was in some fashion invalid and such invalidity meant the charge could not be maintained, standing in the shoes of the RAD Board, VCAT would likely, under s 51 of the VCAT Act, set aside the decision under review, the outcome Racing Victoria proposes, and consider any application for costs. Such a decision would remove any finding of guilt against Ms Goodrich, backdated to the date of the RAD Board's decision, such that no finding of guilt nor decision as to penalty would remain.
9. It also appears whatever the outcome of this proceeding at this Tribunal, VCAT does not have the power to effect the now past decisions of Racing Victoria and of Racing NSW preventing Ms Goodrich from entering horses in races, as discussed above.
10. Also, it is not appropriate for Ms Goodrich to use this proceeding as an attempt to, in this proceeding, obtain the Instruments for use in some other proceeding in a Court whereby she seeks to achieve compensation. That is clearly a collateral purpose. If Ms Goodrich commences such legal proceeding and such documents are relevant to the proceeding, they will be discoverable in that proceeding.
11. Any documents summonsed to the Tribunal in this proceeding would be subject to a 'Harman undertaking', that document summonsed to the proceeding may only be used in the proceeding.
12. Further, this proceeding does not appear to be an appropriate venue in which to address issues relating to the Dispute, including, as Mr Appudurai submitted were relevant, issues concerning Ms Goodrich's ability to pursue her livelihood.
13. When attempts were made before the RAD Board to raise issues of mitigation concerning Ms Goodrich's state of mind given the Dispute, the RAD Board gave this short shrift, focusing on the charge before it and not entering into collateral debate. VCAT would be highly likely to take the same approach. Therefore any hopes of some broad form of exoneration by way of this proceeding concerning the Dispute are very likely misplaced.
14. Conversely, if VCAT accepted Ms Goodrich was guilty of the charge, by way of her pleading guilty as she did before the RAD Board or after a contested hearing, it would be open to VCAT to reduce the penalty, maintain the same penalty or increase the penalty. Any of those results would be less favourable to Ms Goodrich, than the decision under review being set aside.

1. Concerning s 51A of the VCAT Act, I am not aware of any such precedent for this course of action and, with this issue also not discussed at the directions hearing before me, I am unaware of Racing Victoria's position concerning this possibility. This option only raises itself for consideration if Racing Victoria requested that VCAT make such an invitation.

1. Given these orders and reasons raises issues for the parties to consider which were not discussed at the 31 October directions hearing, the parties must be given the opportunity to make further submissions.
2. It is appropriate to do so by way of written submissions, as ordered above
3. If this proceeding is to continue following the provision of opportunity for filing and serving further material by the parties, a hearing is likely in February 2018.

[2] Wood v Calliden Insurance Ltd [2008] VCAT 1339 at [15].

1. [3] Smeaton v Victorian WorkCover Authority (Review and Regulation) [2014] VCAT 1540 at [31] and Smeaton v Victorian WorkCover Authority (Review and Regulation) [2017] VCAT 1471.

[4] Cunningham v Hayden Real Estate (Geelong) Pty Ltd [2003] VCAT 41 at [32].

[5] With whom Neave and Harper JJA agreed.