Goodrich v Racing Victoria Racing Appeals and Disciplinary Board & Racing Victoria No.2 (Review and Regulation) [2018] VCAT 405

1. Under s 50 of the Victorian Civil and Administrative Tribunal Act 1998, Racing Victoria is joined as second respondent in this proceeding.
2. Under s 75 of the VCAT Act, the proceeding is dismissed insofar as the applicant seeks to rely on whether or not relevant instruments of delegation/appointment (see reasons below) validly appointed persons purporting to be Stewards of Racing Victoria Stewards who, on 12 December 2016, came to conduct a race day stable inspection and inspect a horse racing that day.
3. On or before 13 April 2018, the applicant is to file and serve advice as to whether she consents to the decision under review being set aside and that Racing Victoria be ordered to pay her costs in this proceeding.
4. Costs reserved.

1. These orders and reasons address whether Ms Goodrich should be permitted to continue to pursue this proceeding, or whether the proceeding should be dismissed or struck out, in whole or in part under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) on the basis that her continuing the proceeding is an abuse of process. This issue is considered at the Tribunal's initiative.
2. These orders and reasons should be read in conjunction with previous orders and reasons in this proceeding Goodrich v Racing Victoria Racing Appeals and Disciplinary Board (Review and Regulation) [2017] VCAT 1842 (Goodrich No. 1).[1]
3. On 4 January 2017, Ms Kate Goodrich, a trainer licensed by Racing Victoria was charged with, on 12 December 2016, contravening the Australian Rules of Racing 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 race later that day 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 88 and/or carrying out their duties; and/or
2. Refused to obey 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, Ms Goodrich refused two men, identifying themselves as Racing Victoria Stewards, access to her training property, to carry out an inspection. Her refusal related to a long running dispute which has arisen between her, the Kilmore Horse Racing Club and Racing Victoria (Dispute).
2. Later that day, Racing Victoria Stewards conducted an Inquiry at Kilmore, with Ms Goodrich attending by telephone. The Stewards removed the horse from the race that afternoon and adjourned the matter.
3. Goodrich No. 1 describes how events unfolded, including Racing Victoria and Racing New South Wales preventing Ms Goodrich racing horses in either state.
4. On Friday 10 March 2017, Ms Goodrich plead guilty before the RADB to breaching AR 8D as charged. The RADB suspended Ms Goodrich for three months but immediately suspended that penalty for 12 months; which is the decision under review in this proceeding (the Decision).
5. (At the date of writing these reasons, the suspended period of suspension had ended on 10 March 2018.)
6. In April 2017, VCAT received Ms Goodrich's application for review of the Decision. She was properly seeking a substantive outcome. She intended to plead not guilty and seek a reversal of the Decision. She intended to prove the Stewards who came to inspect in December 2016 were not properly appointed and then submit she should be found not guilty of the charge against her.
7. Multiple consent adjournments followed until, in September 2017, the proceeding came before me at a directions hearing. The parties advised the matter may settle by consent.
8. In October 2017, Racing Victoria advised by letter that it consented to the Tribunal making orders ending this proceeding by setting aside the Decision and ordering Racing Victoria pay Ms Goodrich's legal costs in the VCAT proceeding.
9. Ms Goodrich's lawyers submitted by letter that Racing Victoria's proposed resolution of the proceeding was not the most advantageous resolution potentially available to Ms Goodrich. Ms Goodrich would not be in a position to properly evaluate Racing Victoria's offer until it provided her with relevant instruments of delegation/appointment (the Instruments) of the Stewards who came inspect on 12 December 2016.
10. By interim orders, I scheduled a directions hearing and directed the principal registrar not to issue any witness summons seeking the Instruments until I heard submissions. This was because an unusual scenario had arisen where Racing Victoria sought consent orders which, it appeared to me, subject to submissions, finalised the matter. It appeared however, that Ms Goodrich intended to continue with the proceeding, which could be an abuse of VCAT process.
11. In Williams v Spautz,[2] the High Court of Australia cited with approval the words of Lord Scarman in Reg v Sang that every court (and I take it also tribunal) is "in duty bound to protect itself" against an abuse of process.
12. On 31 October 2017, the matter came before me at a directions hearing directions hearing

1. 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 Ms Goodrich's optimal outcome. 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 from her not being able to enter horses to race in Victoria and New South Wales.
2. 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.
3. Goodrich No. 1 records my orders and reasons of 13 November 2017, by which I invited further submissions.

1. The issue of abuse of process raised in this proceeding was raised by the Tribunal, in what it described as the unusual scenario in this proceeding; 2. Racing Victoria had previously agreed to disclose the Instruments to Ms Goodrich, provided confidentiality undertakings were given by Ms Goodrich and her lawyers;

1. As well as referring to Bausch v TAC (see below), the submissions referred to Perpetual Trustee Co. (Canberra) Ltd v Commissioner for Australian Capital Territory Revenue [1994] FCA 1150 (at 267) and comment by Tadgell JA at 267, "the review miscarried because the Tribunal had not before it material that was critical to the resolution of issue between the parties";

1. The central issue in this case is now, whether the Stewards who came to inspect on 12 December 2016, were indeed "stewards" for the purposes of the Rules of Racing of Racing Victoria, which will be determined by examining the Instruments;

1. While, I had said in Goodrich No.1 that I did not understand why Racing Victoria had not provided the Instruments to Ms Goodrich, it was troubling that VCAT had allowed non-disclosure to go unexplained;
2. That Racing Victoria had submitted if this matter went to hearing two days of legal argument would be required, indicated the Instruments "were not without difficulty";
3. While the Tribunal had described the potential defence to the charge, based on any defect in the Instruments as of a "technical nature", if a relevant defect is found, it will go to the heart of the charge against Ms Goodrich. The charge resulted in Racing Victoria and Racing New South Wales denying Ms Goodrich the ability to earn her income;
4. Concerning the potential for the proceeding to be struck out under s 75, with the question as to the validity of the Instruments unresolved, it could not be said that there is no real question to be tried and, therefore, issues of abuse of process could not arise;
5. The potential outcome for Ms Goodrich if this VCAT proceeding is heard and determined in her favour is vastly better than that proposed by Racing Victoria:
   1. If VCAT decides the Stewards had not been validly appointed, it will describe why that was so, that the charge had not been validly brought against Ms Goodrich and will set aside the Decision and dismiss the charge.
   2. Absent any valid reasons to not do so, VCAT will order Racing Victoria to pay Ms Goodrich's costs of this VCAT Proceeding and the RADB hearing, both potentially on an indemnity costs basis;

It was submitted VCAT would have the power to make a costs order with respect to the RADB hearing, given VCAT on review has all the powers of the decision maker (s 51(1)(a) of the VCAT Act). Under LR 6E(1)(c) the RADB may, "give any judgement or decision or make such order as in the RADB's opinion the justice of the case requires";

1. Under s 51 of the VCAT Act, VCAT has power is set aside the Decision and make another decision in substitution for it. Substituting the Decision with a decision dismissing the charge against Ms Goodrich, is preferable to an order simply setting aside the decision under review, leaving the charge in existence;
2. A VCAT finding that the Stewards had not been validly appointed would be a basis for Ms Goodrich to rely on to negotiate with Racing Victoria for compensation, or failing that, to bring an action in court for compensation. In doing so Ms Goodrich would be relying on the VCAT decision not the Instrument presumably summonsed in this proceeding; and
3. Disagreed with Racing Victoria's submission (see below), that Australian Rule of Racing AR 197 would prohibit Ms Goodrich from seeking the compensation. It was submitted that if the Stewards were not validly appointed as Stewards when they came to her inspect on 12 December, they would not have been acting under the relevant rules.

1. That I was incorrect in saying in Goodrich No. 1 that when the matter was before the RADB, the RADB was concerned Ms Goodrich was using that proceeding to pursue a collateral purpose related to the Dispute. In fact, that issue was only pursued, properly, with respect to submissions concerning Ms Goodrich's state of mind on 12 December 2016, in context of the Dispute;
2. Concerning the categories of 'abuse of process' set out by McHugh J in Rogers v R (1994) 81 CLR 251 [at 286], there is no evidence that this proceeding has been instituted:
   1. to annoy or embarrass Racing Victoria,
   2. for a purpose other than to have VCAT adjudicate on the issues raised,
   3. where the proceeding is obviously untenable or manifestly groundless,
   4. where VCAT's jurisdiction has been invoked for an illegitimate purpose; and/or
   5. requiring proof that the Stewards were validly appointed when they came to inspect on 12 December 2016 abuses VCAT procedures so as to bring the administration of justice into disrepute;

1. Disagreed with Racing Victoria that by analogy with the High Court's decision in Williams, Ms Goodrich's aim to obtain compensation is a collateral purpose to this proceeding, such that continuing this proceeding constitutes an abuse of process; and

20 It was submitted on behalf of Ms Goodrich that VCAT should:

1. Direct Racing Victoria to provide to Ms Goodrich's lawyers a copy of the Instruments or lift the prohibition on the principal registrar issuing a witness summons at the request of Ms Goodrich, that a summons may be issued returnable on a convenient date; and
2. List an administrative mention at an appropriate time by which date the parties would be required to advise the Tribunal if the application would be proceeding to hearing; and

1. List the hearing (estimate of three days), not less than two weeks after the administrative mention, in the event that the parties advised that hearing is required.

21 For completeness, I record here, it was also submitted on behalf of Ms Goodrich:

1. The Tribunal's decision to prevent issue of the summons of the Instruments was questionable, noting but for that, the Instruments would have been summonsed to the Tribunal; and
2. There are grounds for the making an application that I, as a VCAT member, recuse myself from this proceeding, on the basis that a fair-minded lay observer may apprehend that I am biased in this proceeding (that submission not pursued);

1. Racing Victoria reiterated VCAT should order the Decision set aside, that Racing Victoria pay Ms Goodrich's legal costs and that the proceeding be, under s 75, otherwise struck out.
2. Racing Victoria further submitted:

1. Ms Goodrich will not via this proceeding be able to achieve a better result than that offered by Racing Victoria, and so there is, "no real question to be tried"; 2. The proceeding should be dismissed or struck out on the alternative basis that it amounts to an abuse of process, in particular Ms Goodrich maintains and continues the proceedings for an ulterior or collateral purpose. Racing Victoria described the decision by the majority in the High Court of Australia's Williams as an instructive analogy;

1. That collateral purpose is to, by means of a separate, subsequent claim for compensation, gain compensation against Racing Victoria, presumably by way of negotiation or through the Courts. Racing Victoria submits it is not the role of VCAT to progress a review proceeding for the purpose of improving an applicant's prospects of obtaining compensation in an unrelated court or tribunal proceeding;

1. Ms Goodrich is not entitled to make any claim for compensation against Racing Victoria, under Australian Rules of Racing (AR) 197:

No person shall be entitled to make any claim for damages by reason or in consequence of the imposition, annulment, removal, mitigation, or omission of any penalty imposed or purporting to be imposed under the rules.

1. It is not VCAT's role to conduct an inquiry into the Dispute;

1. VCAT ordering, as Racing Victoria proposes, that the Decision be set aside, in effect dismisses the charge and removes any finding of guilt and related penalty against Ms Goodrich, providing her with the "exoneration" or "vindication" that she seeks;
2. There is no basis to assume, contrary to s 109 of the VCAT Act, that if Ms Goodrich succeeds in this proceeding, VCAT will order Racing Victoria to pay her costs. Separate to that, VCAT does not have power to order Racing Victoria to pay Ms Goodrich's costs before the RADB;
3. Contrary to the above, given Ms Goodrich's refusal to agree to the proposed orders by VCAT, there would be a strong case in favour of her being ordered to pay Racing Victoria's costs in this proceeding;
4. No agreement had been reached between the parties for Racing Victoria to provide the Instruments to Ms Goodrich's lawyers. Racing Victoria remains prepared to provide them subject to an appropriate confidentiality agreement, similar to one reached when the matter was before the RADB;

I note here that Racing Victoria included in its submission substantial matter concerning the dispute between it and Ms Goodrich concerning what material should come before this Tribunal. There is no need to respond to it as that issue has not proven pivotal in making these orders.

1. The reason Racing Victoria has not provided a copy of the Instruments to Ms Goodrich, in the absence of a confidentiality agreement relating to this proceeding, is that they include confidential employment documents related to the two Stewards which include confidential terms and conditions of appointment and salary;
2. Ms Goodrich should be well aware of the subject matter likely to arise in two days of legal argument if this matter goes to hearing at VCAT, concerning confidentiality of documents, admissibility of documents and the relevance of the Dispute; and

1. With the Stewards seeking a solution which in the future encourages and promotes cooperation between the parties, the proposed orders would avoid a lengthy, costly and polarising dispute with effectively academic rather than practical consequences.

1. Also for completeness, I note Racing Victoria submitted my decision to prevent issue of the summons of the Instruments was appropriate and there was there was no basis to conclude I am biased in this proceeding.

1. In a review proceeding, this Tribunal has under s 51(1)(a) of the VCAT Act all the powers the RADB had when it made the Decision.
2. The Tribunal may, standing in the shoes of the RAD Board, 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.
3. Under s 51(2) of the VCAT Act, in determining this proceeding, VCAT may:

1. Affirm the Decision; 2. Vary the Decision;

1. Set aside the Decision and make another decision in substitution for it; or

1. Set aside the Decision under review and remit the matter for reconsideration by the RADB in accordance with any directions or recommendations of the Tribunal.
2. In 1998 in Transport Accident Commission v Bausch,[3] the Supreme Court of Victoria Court of Appeal considered important questions touching the role and responsibility of the maker of an administrative decision when a review of the decision is undertaken by the Administrative Appeals Tribunal.[4]
3. The Court of Appeal's conclusion on those roles and responsibilities, now roles and responsibilities of VCAT including in this proceeding, is often quoted:

It is now well established that the Commonwealth Administrative Appeals Tribunal (and those State and Territorial tribunals established by cognate legislation, as in Victoria) are obliged by statute, when reviewing a primary administrative decision, to be satisfied whether or not that decision was, on the material before the Tribunal, the correct or preferable one ... It has been said that the Tribunal is required to undertake its task regardless of the form which the parties' submissions take ... An error of law may be committed by the Tribunal through ignoring a central issue, even if no submission at all is directed to it on the point: ... [5]

1. Also, s 51A of the VCAT Act gives VCAT the power to invite the decision-maker to reconsider its decision. Given the following analysis, it is not necessary to address this provision in any detail.

1. As discussed in Goodrich No. 1, VCAT may dismiss or strike out a proceeding under s 75.
2. Section 75(1) 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, 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. Section 75(1) empowers VCAT to dismiss or strike out one or more claims in the applicant's points of claim or some other document that articulates the applicant's claim. In Martin v Fasham Johnson Pty Ltd [2008] VSC 289 at [30], Kyrou J said:[6]

Section 75 empowers the Tribunal to dismiss or strike out part of a proceeding. That is, the whole of a proceeding need not be dismissed or struck out ... the power to dismiss or strike out part of a proceeding extends to dismissal or striking out of one or more claims in the points of claim or some other document which articulates the applicant's claims in lieu of points of claim.[7]

1. The power to dismiss or strike out under s 75 may be used when, while a proceeding in no way could have been described as frivolous, vexatious, misconceived, lacking in substance or otherwise an abuse of process when the original application was made, it has, in some respect, come to fall within one or more of those categories.[8]

1. 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.[9]

1. In Kermani v Westpac Banking Corporation [2012] VSCA 42; (2012) 36 VR 130, Robson AJA[10] 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 submissions, Racing Victoria briefly submitted the High Court's decision in Williams v Spautz provides an instructive analogy in this proceeding as to why Ms Goodrich's position should be regarded as pursuing a collateral purpose amounting to abuse of process. Ms Goodrich disagreed, saying her conduct in issuing legal proceedings is in no way comparable to that of Dr Spautz.
2. That acknowledged, in my view the decision in Williams states valuable general principles, noting it discusses inherent jurisdiction of courts, rather than statutory power, such as that under s 75.
3. The Court referred to events from 1973 to 1980. Dr Spautz, a senior lecturer at the University of Newcastle, came into conflict with Professor Williams, Chair of Commerce at the University, leading to Dr Spautz' dismissal from the University.
4. Dr Spautz commenced dismissal proceedings (a matter not before the High Court). From mid-1981, Dr Spautz commenced over 30 proceedings - the majority, criminal prosecutions - against persons who occupied positions of authority at the University or who had played a role in the events leading to his dismissal.
5. The case before the High Court concerned three of those proceedings. Dr Spautz laid an informations against Professor Williams and others charging criminal defamation, against a Mr Morris alleging conspiracy with Mr Justice Kirby and other members of the University and against a Mr Gibbs charging criminal defamation and conspiracy with Mr Justice Kirby and others.
6. The trial judge had found that Dr Spautz's predominant purpose in instituting and maintaining the criminal proceedings was to exert pressure on the University to reinstate him and/or to agree to a favourable settlement of his wrongful dismissal case. The trial judge so found Dr Spautz had other purposes including collection of material for claimed research into corrupt practices in Australian institutions and vindication of his reputation.
7. Concerning broad principles related to what constitutes collateral purpose and where collateral purpose constitutes abuse of process, the majority (Mason CJ, Brennan, Dean, and Dawson JJ) issued a joint judgement.
8. They said [at 39], Lord Evershed delivering judgement in In re Majory (49) (1955) Ch at pp 623-624 correctly stated the principle:

that court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of the court by proceedings he has abused.

It is, of course, well established that the onus of satisfying the court that there is an abuse of process lies upon the party alleging it. The onus is "a heavy one", to use the words of Scarman L.J. in Goldsmith v. Sperrings Ltd. ... and the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances ...

1. In a separate judgement in Williams, Brennan J, who agreed with the majority that Dr Spautz had engaged in abuse of process discussed what is meant by 'purpose' when used in reference to a legal proceeding. He said in part:

Purpose, when used in reference to a transaction, has two elements: the first, a result which the transaction is capable of producing; the second, the result which the person or persons who engage in or control the transaction intend it to produce. ...

The purposes which legal proceedings are designed to serve are the protection or vindication of particular legal rights or immunities, the maintenance or affection of particular legal relationships, and the imposition or enforcement of particular legal penalties, liabilities and obligations.

... Where a plaintiff commences or maintains a proceeding with the intention of obtaining a result falling outside the scope of the remedy, a question can arise as to whether the purpose of the proceeding is legitimate or not. ...

I would formulate the test in this way: if there be a reasonable relationship between the result intended by the plaintiff and the scope of the remedy available in the proceeding, there is no abuse of process. ...

1. Deane J dissented. In his view, Dr Spautz had not engaged in abuse of process. He said in part:

The subjective purposes which might lead a plaintiff, claimant or informant legitimately to institute civil or criminal proceedings are manifold. Indeed, they are almost unlimited. ... Most civil proceedings are instituted in the hope that the defendant will settle before the action ever comes to trial or formal orders are made. Frequently, they are instituted for the predominant subjective purpose of obtaining an object which it would be beyond the power of the particular court to award in the particular proceedings. ...

1. Gaudron J also dissented. While she agreed with much of what the other Justices had said, she concluded:

Dr Spautz claims that the acts which form the basis of the charges of conspiracy and criminal defamation resulted in or materially contributed to his dismissal. There is nothing to suggest that that claim is not genuinely made. And there is nothing to suggest that Dr Spautz does not believe that he has some right or entitlement arising as a result of his dismissal. His claim in that regard is closely connected with and directly related to (indeed, on his view, arises out of) the wrongs asserted in the committal proceedings. And the purpose of securing a settlement of his claim of wrongful dismissal is not one that can be said to be out of proportion with those wrongs. Finally, the purpose is not itself wrongful or improper. Accordingly, it is not an improper purpose and the proceedings cannot, on account of that purpose, be viewed as an abuse of process.

1. In originally seeking review of the Decision, Ms Goodrich acted entirely appropriately, pursing her right of review of the Decision. Her seeking to prove that the Stewards who came to inspect were not properly appointed was a legitimate strategy.
2. However, the fundamentals of this proceeding changed when Racing Victoria offered Ms Goodrich the end result she could achieve in this proceeding; that the Decision be set aside.
3. There is no substantive difference between orders:
   1. that the Decision under review be set aside; and
   2. that the Decision be set aside and substituted with a decision dismissing the charge against Ms Goodrich.
4. Both orders provide exoneration and vindication by the removal of a finding of guilt and the record of a penalty. If the Decision is set aside, the charge does not somehow sit in isolation, still pending, as a mark against Ms Goodrich.
5. Furthermore, Racing Victoria offers to pay Ms Goodrich's costs in this VCAT proceeding to date. Given s 109 of the VCAT Act, no party coming to this Tribunal in a review proceeding should assume that if that party succeeds the Tribunal will order the unsuccessful party to pay costs, whatever stage at which a proceeding ends.
6. Ms Goodrich maintains two disputes remain between her and Racing Victoria.
7. First is whether or not the Stewards who came to inspect on 12 December 2016 were properly appointed as Racing Victoria Stewards. If not she intends to seek compensation from Racing Victoria.
8. Second, she intends to seek orders from this Tribunal that Racing Victoria be ordered to pay her costs in this proceeding and her costs before the RADB, should it be discovered and/or proven the Stewards were not properly appointed on 12 December.
9. These objectives must be seen in the context that Racing Victoria brought Ms Goodrich before the RADB facing charges in a disciplinary proceeding. On review at VCAT, with the Tribunal standing in the shoes of the RADB as decision-maker, and VCAT having the role to re-decide whether or not the charge is proven, in effect Ms Goodrich once again faces charges in a disciplinary proceeding.
10. However, Racing Victoria offers her the opportunity to in effect successfully defend the charges.

1. The abuse of process here is that Ms Goodrich, in the now changed situation in this proceeding, is attempting to switch roles in this proceeding such that she is pursuing an action attempting to obtain evidence and a VCAT decision to found an action seeking compensation from Racing Victoria, in effect making Racing Victoria the defendant. This is the collateral purpose which constitutes an abuse of process in this review proceeding. If she seeks to pursue that collateral purpose, the courts are the appropriate venue.
2. Paraphrasing Lord Evershed, as quoted by the majority in Williams, Ms Goodrich may not use this proceeding to obtain some collateral advantage to herself (founding an action seeking compensation), and not for the purpose for which this proceeding is properly designed and exists (to determine whether a decision under review be affirmed, varied, or set aside). Her seeking to use the proceeding for that collateral purpose is an abuse of process.
3. Adopting the test expressed by Brennan J in Williams, there is no reasonable relationship between the result she intends, founding a compensation application and the scope of the remedy available in this proceeding, which does not include ordering compensation.
4. While Ms Goodrich may say that her position is supported by Deane and Gaudron JJ in Williams, their honours were in the minority.
5. Similarly, Ms Goodrich's ambitions with respect to costs orders against Racing Victoria is founded on showing that the Stewards were not properly appointed. As success or failure in this endeavour rests on the collateral purpose, it is also an abuse of process to pursue costs before the RADB on that basis. Presumably any compensation action she pursues will encompass all monetary loss she claimed.
6. This Tribunal's responsibilities in a review proceeding to make a correct and preferable decision, as expressed in Bausch, does not take me to a different result. The Court described tribunals' obligations in merits review in the context of hearing and determining a proceeding, not where a decision-maker offered the result which may be appropriately pursued by an applicant.
7. Finally on this topic, nothing in these reasons concerning compensation makes any comment on the merit of any compensation claim Ms Goodrich may wish to pursue.

1. With that issue resolved, the next question is what is the appropriate response by the Tribunal?

1. Given VCAT does not have power to under s 75 set a decision under review aside (a power provided by s 51 of the VCAT Act),[11] it is, in my view, not appropriate at this time to partially accept Racing Victoria's proposal and dismiss the proceeding and order that Racing Victoria pay Ms Goodrich's costs in this proceeding. That result would leave the Decision in place, an unreasonably harsh result for Ms Goodrich at this time.
2. Summary dismissal under s 75 is always a last resort.
3. However in the unusual circumstances of this proceeding (equally described as exceptional circumstances) and in the context of my conclusion that to permit Ms Goodrich to pursue her collateral purpose would be to permit abuse of process, s 75 should be employed to prevent that occurring.
4. Section 75 empowers the Tribunal to strike out all or part of a proceeding.
5. I have struck out Ms Goodrich's claim that the charge against her should be dismissed because the Stewards on 12 December 2016 were not properly appointed.
6. Doing so is akin to striking out a pleading in a court proceeding. The order removes from the proceeding the collateral purpose Ms Goodrich sought to pursue.
7. With the collateral purpose removed, Ms Goodrich is now invited to consider whether or not she will consent to the orders Racing Victoria proposes.
8. If she does so within 14 days, I will make the following orders ending this proceeding:
   1. the decision under review is set aside; and
   2. the respondent is to pay the applicant's costs in this proceeding.
9. As such orders would finalise the proceeding, there would be no need to make a further order that the proceeding is otherwise dismissed.
10. In the interests of finality of this proceeding, I indicate here that I regard the time for submissions as over. If Ms Goodrich does not consent, I intend to make the following orders ending the proceeding;
    1. the proceeding is dismissed under s 75 the Victorian Civil and Administrative Tribunal Act 1998; and
    2. the respondent is to pay the applicant's costs in this proceeding.
11. For completeness, I record that while I previously raised the possibility of inviting the RADB to reconsider the Decision, having reached the above conclusion I do not regard such invitation as an appropriate way forward. In any case, Ms Goodrich opposed that action and Racing Victoria doubted its utility.

1. Finally, I record that in preparing these reasons, I made orders formalising the substantive position in this proceeding, that Racing Victoria has taken the role of second respondent and contradictor.
2. The original application filed in this proceeding appropriately identified the RADB as the decision-maker and respondent. However, in substance this proceeding has progressed on the basis that the RADB will take a neutral role in this proceeding and Racing Victoria takes the role of active respondent (known as the contradictor). This is 'standard practice' in such proceedings.

[1] Goodrich No. 1 (order and reasons of 13 November 2017) was published in tandem with these orders and reasons, not previously published (apart from to the parties) given its interim nature.

[2] (1992) 174 CLR 509; [1992] HCA 34; (1992) 174 CLR 509 F.C. 92/027 [at 20].

[3] (1998) 4 VR 249 (at 263); [1998] VSC 248; [1998] VICSC 20

[6] See Pizer's Annotated VCAT Act, 6th Ed at page 300.

[7] Reference to the distinction between the proceeding commenced by the application and the points of claim in proceedings under the Domestic Building Contracts Act 1995, not relevant here omitted from quote.

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

[10] With whom Neave and Harper JJA agreed.

[11] See Kellam J and Baker Smith DP in L v Nurses Board of Victoria (1999) 16 VAR 125 [at page 128]