Greyhound Welfare and Integrity Commission v Grech

Catchwords

[2009] HCA 41 Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302[2012] NSWCA 13 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321[1990] HCA 33 Attorney General (NSW) v Quin (1990) 170 CLR 1[1990] HCA 33 Ballantyne v Workcover Authority of NSW [2007] NSWCA 239 Bay Simmer Investments Pty Ltd v New South Wales [2017] NSWCA 135(2017) 222 LGERA 286 CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384[1997] HCA 2 CN17 v Minister for Immigration and Border Protection (2019) 268 CLR 76(2019) 94 ALJR 140[2019] HCA 50 Commonwealth v Baume (1905) 2 CLR 405 Craig v State of South Australia (1995) 184 CLR 163[1995] HCA 58 Devries v Australian National Railways Commission (1993) 177 CLR 472[1993] HCA 78 Fox v Percy (2003) 214 CLR 118[2003] HCA 22 Hockey v Yelland (1984) 157 CLR 124[1984] HCA 72 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123[2018] HCA 34 Malaysian Declaration Case (2011) 244 CLR 144[2011] HCA 32 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986)162 CLR 24[1986] HCA 40 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541

Judgment (19 paragraphs)

[1]

Background

The evidence before the Tribunal included a recording of a documentary aired on 15 February 2015 by the ABC's Four Corners investigative journalism program entitled 'Making a Killing'. The documentary sought to expose animal cruelty in greyhound racing, including the practice of live baiting. This is relevant as the footage included live baiting at a greyhound training facility owned by a Mr Zeke Kadir. Ms Grech assisted Mr Kadir at his property in the training and trialling of greyhounds. She is depicted in the footage, but she is not shown as being present, or involved, when live baiting was carried out. Live baiting is the practice of using "an animal as a lure or kill for the purpose of blooding greyhounds or in connection with the trialling, training or racing of any coursing dog" (see s 21(1)(d) Prevention of Cruelty to Animals Act 1979 (NSW) ("PCA") and s 530 Crimes Act 1900 (NSW)). Misconduct of this kind is so seriously regarded for the purpose of GRA that if a court finds a person guilty of a live baiting offence his or her registration under GRA is "automatically cancelled" and he or she is "permanently disqualified from being registered" under GRA "in any capacity" (s 40 GRA). This is effectively a life ban. Clearly, a person found guilty could never be adjudged "fit and proper" to be registered as a participant under s 49 GRA. A finding of guilt of such an offence could not but sorely offend the public interest as it relates to the greyhound racing industry.
In or around the middle of 2015, Ms Grech was charged with animal cruelty offences contrary to s 530 Crimes Act and s 21(1)(d) PCA. The prosecution did not proceed to finality because the charges were withdrawn on 27 February 2020. For the purpose of the criminal law, I interpolate, this is regarded as a favourable result for Ms Grech. To state the obvious, this is not a finding of guilt of the offence by a court.
Mr Kadir was convicted for his live baiting offending and sentenced to 2 years and 6 months imprisonment, to be served in the community by way of intensive correction order (Decision, [14]). This may be particularly significant because the Commission submits, "Ms Grech's involvement with Mr Kadir, and her knowledge of live baiting, are central to these proceedings" (PWS, [5]). It may be equally significant that the Commission does not, and has never, contended that Ms Grech actively participated in any live baiting practice (PWS, [32]). There was an issue before the Tribunal about her state of knowledge of activities being carried on at Mr Kadir's premises while she was present.
On 24 March 2020, Ms Grech applied for registration as a greyhound racing participant, as an Owner/Trainer. On 3 April 2020 her application was successful, and the Commission so registered her.
On 18 September 2020, Ms Grech was "warned off" for 9 weeks for breaches of the Greyhound Racing Rules (as at 12 November 2018). This related to a prior incident of her handling a greyhound at an event without registration or approval.
On 19 January 2021, Ms Grech made a further application for registration as an Owner/Trainer, which was granted on 2 February 2021. On 25 February 2021, her registration was suspended pending an investigation. The Commission was investigating whether Ms Grech made false statements by failing to disclose the withdrawn charges in her applications for registration dated 24 March 2020 and 19 January 2021. The outcome of the investigation was her suspension for nine months beginning on 28 July 2021.
The Commission's refusal of Ms Grech's further application for registration dated 22 November 2021, was the subject of her appeal to the Tribunal which resulted in the Decision favourable to her which is now under judicial review.

[2]

The Decision

To understand the grounds for review it is useful to begin by detailing some key aspects of the Decision. The Tribunal explained its understanding of the registration power as follows ([4]-[6]): This appeal is not a vehicle to determine any tension that might exist between 47(1) and 49(3). The case is run on the basis of 47(1), fit and proper, not on the basis of best interests [for the purpose of s 49(3) GRA]. But the Tribunal is satisfied in passing, and without determining the matter to finality for future use, that the protection of the public interest as it relates to greyhound racing [under s 47(1)] may mean that 49(3) is simply surplusage in any event, that what are the best interests of greyhound racing otherwise than a need to protect the public interest that relates to it. Anyway, that does not need to be decided. (My emphasis and interpolation.)
The Tribunal detailed Ms Grech's relationship with Mr Kadir. She sought assistance and guidance from him in training greyhounds (Decision, [13]). She attended his property for that purpose with some frequency. The Tribunal referred to Mr Kadir's conviction in 2020 for his live baiting offending. The Tribunal also extracted part of an interview with Ms Grech and an RSPCA inspector (Mr Turner): Inspector Turner: And you were present, when they were using a live lure, for greyhound coursing? Ms Grech: Yeah. Inspector Turner: Yep. Ms Grech: I don't know if it was live, I don't know. In regard to the above exchange, the Tribunal said, "[Ms Grech] explains today on oath that she had not participated in live baiting and that that was not an answer that was correct" (Decision, [20]).
The Tribunal referred to Ms Grech's friendship with Mr Kadir which was formed because of the relationship Ms Grech formed with Mr Kadir's wife. The Tribunal said, "on the sworn evidence of [Ms Grech], she was asked to continue to help Mr Kadir by his wife before she died" (Decision, [23]).
The Tribunal found that the allegation of live baiting against Ms Grech did not extend to 'participation' and that that was not the allegation against her for registration purposes (Decision, [24]). The Tribunal then asked what reputationally should follow from the fact of live baiting while she was at the premise. The Tribunal stated "continued association with a person imprisoned [by way of ICO] … for live baiting is of deep concern to the Tribunal … " (Decision, [25]).

[3]

Application for judicial review

The plaintiff propounds 9 grounds of review, in summary they are: 1. ground 1: failing to apply s 49 was an error of law and jurisdictional error; 2. ground 2: finding s 49(3) as 'simply surplusage' was an error of law; 3. ground 3: limiting consideration of protection of the public interest as it relates to the greyhound racing industry to only matters of reputation was an error of law; 4. ground 4: the second defendant committed an error in failing to have proper regard to Ms Grech's presence during the practice of living baiting; 5. ground 5: concluding that presence during live bailing was a matter in Ms Grech's favour was unreasonable; 6. ground 6: error in failing to have regard to inconsistencies in Ms Grech's evidence about her awareness of live baiting activities; 7. ground 7: failed to have proper regard to Ms Grech's association with Mr Kadir; 8. ground 8: in concluding the association with Mr Kadir was in her favour was unreasonable; and 9. ground 9: concluding that Ms Grech was fit and proper was unreasonable.
The Commission pleads that ground 1 is an error of law amounting to jurisdictional error. But, as can be seen, with minor exceptions, the Commission does not specify the nature of the asserted error sufficiently to identify whether the Court's supervisory jurisdiction has been properly engaged. However, while the Commission does not identify grounds 3-9 as jurisdictional errors, the arguments advanced were mainly predicated on the principles relating to legal unreasonableness which depending on the nature of the decision impugned may support a claim of jurisdictional error.

[4]

Submissions

The Commission's first and second grounds of review are related. By ground 1, the Commission claims the Decision is tainted by a jurisdictional error of law because when considering whether Ms Grech was a fit and proper person for the purpose of s 47 GRA, the Tribunal failed to consider whether her registration was in the best interests of the greyhound racing industry in accordance with s 49(3). By ground 2, the Commission says that the Tribunal by referring to s 49(3) as "simply surplusage" to the fit and proper test in s 47 fell into error of law.
The Commission submits that Pt 5 Div 2 ought to be construed as prescribing a two-stage approach to registration. First, the application of s 47, that the individual must be a fit and proper person to be registered having regard to the protection of the public interest as it relates to the greyhound racing industry. Second, by s 49(3), the Commission has a residual discretion to refuse to register a person if it forms the opinion that refusal is in the best interests of the greyhound racing industry (Plaintiff's Written Submissions (PWS), [17]).
The Commission's submission continues that the respective inquiries of ss 47 and 49 are "separate and distinct" (PWS, [19]). The point made is that an applicant's satisfaction of s 47 does not guarantee registration, s 49 confers a wide discretion to conclude that the individual may be fit and proper but the best interests of the greyhound racing industry require refusal of registration (PWS, [21]).
In written submissions prepared by Mr David Barry Wilson, solicitor, the first defendant argued that these grounds are only available to the extent the provision in question is a mandatory considerations as explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986)162 CLR 24: [1986] HCA 40. In that regard, Ms Grech submitted that s 47 is a mandatory consideration but s 49 is not (First Defendant's Written Submissions (DWS), [30]). Ms Grech therefore contends that the claim of jurisdictional error by the Tribunal not considering s 49(3) should not be accepted.
In reply, the Commission submitted the argument that there is significant overlap between ss 47(1) and 49(3) should be rejected. The Commission added some content to how the best interest of the greyhound racing industry may differ from the fit and proper person test, with the former being concerned with integrity of the industry and the ongoing conduct of the sport (Plaintiff's Reply Submissions (PRS), [12]).

[5]

Consideration

In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, McHugh, Gummow, Kirby and Hayne JJ expressed the process of statutory construction as (at [69]): … to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. (Citations omitted.)
In CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384; [1997] HCA 2, Brennan CJ, Dawson, Toohey and Gummow JJ said (at 408): [T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some late stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.
In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, Hayne, Heydon, Crennan and Kiefel JJ, while reiterating these principles, emphasised the paramountcy of the text of the statute (at [47]): This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy (citations omitted).
It is logical to begin with ground 2, whether s 49(3) of the GRA is surplusage? If the answer is no, the Tribunal has misconstrued the statute conferring the registration power.

[6]

Ground 1

Returning to ground 1, it is apparent that s 47(1) requires the Commission to form an opinion as to whether the person is fit and proper. It is also apparent that this is a mandatory consideration in the Peko-Wallsend sense. It is, as I have previously put it, a statutory precondition which must be satisfied before a person is eligible for registration under s 47(1). It may also be termed a "jurisdictional fact", at least for some purposes. I consider it apt to refer to the Malaysian Declaration Case (2011) 244 CLR 144 where French CJ wrote (at [57]): "The term "jurisdictional fact" applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion…Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact".
There is further support that s 47(1) is a 'mandatory consideration in the sense that any failure to take [the consideration] into account, in circumstances where [the consideration is] engaged, will be an error in point of law' (Ballantyne v Workcover Authority of NSW [2007] NSWCA 239 at [114] per Basten JA; Malaysian Declaration Case at [57] per French CJ) or to put it another way, 'a pre-condition to the engagement of a statutory power' rather than the label jurisdictional fact (Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 at [52] (Basten JA). Whether a condition in a statute is a pre-condition to the engagement of the statutory power is one of statutory construction (Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8, at [37]; Project Blue Sky, at [93]).
The language of s 47(1) is obligatory, that is, the Commission 'is to…ensure…'. It is also relevant that s 47(1) is an ancillary and universal consideration in Pt 5 Div 2. It precedes the specific registration powers within the division (Timbarra at [44]). The essentiality of s 47(1) is also supported by s 58(1)(b) GRA, as after it has validly exercised its registration jurisdiction, if it forms the opinion that a registered person is no longer fit and proper it can take disciplinary action (as it has done in Ms Grech's case).

[7]

Materiality and jurisdictional error

The Tribunal's tentative misinterpretation of s 49(3) as mere "surplusage" could amount to an error of law, but to make out jurisdictional error in the exercise of the s 49 registration power the Commission needs to establish the element of materiality. The same is true of a vitiating error of law on the face of the record: Bond at 353.
In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 ("Hossain"), Kiefel CJ, Gageler and Keane JJ described jurisdictional error as follows (at [24]; [29]-[30]): Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it. To describe a decision as "involving jurisdictional error" is to describe that decision as having been made outside jurisdiction. A decision made outside jurisdiction is not necessarily to be regarded as a "nullity", in that it remains a decision in fact which may yet have some status in law. But a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as "no decision at all". To that extent, in traditional parlance, the decision is "invalid" or "void". (My emphasis.) … That a decision-maker "must proceed by reference to correct legal principles, correctly applied" is an ordinarily (although not universally) implied condition of a statutory conferral of decision-making authority. Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance. Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of "the possibility of a successful outcome", or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was "so insignificant that the failure to take it into account could not have materially affected" the decision that was made. (Footnotes omitted.)

[8]

Error on the face of the record

It appears from the grounds of review that ground 1 is claimed concurrently to be a jurisdictional error and an error of law on the face of the record. Had I found that the misinterpretation error was an error of law, I would have found that it was an error of law on the face of the record.
The limitation of error of law being on the record is a feature of the Court's limited supervisory role in judicial review. In Hockey v Yelland (1984) 157 CLR 124; [1984] HCA 72, Wilson J said: Ordinarily, in the absence of statutory prescription, the record will comprise no more than the documentation which initiates the proceedings and thereby grounds the jurisdiction of the tribunal, the pleadings (if any) and the adjudication. It will not include the evidence or any reasons that may be given for the decision unless the determination itself incorporates them by reference.
In Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58, it was said (at 181): More importantly, the approach that the transcript of proceedings and the reasons for decision constitute part of 'the record' would, if accepted, go a long way towards transforming certiorari into a discretionary general appeal for error of law upon which the transcript of proceedings and the reasons for decision could be scoured and analysed in a search for some internal error.
The concept of "the record" has been broadened to include the reasons expressed by the Tribunal by statutory modification: s 69(4) Supreme Court Act 1970 (NSW). As pointed out by Basten JA in Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 [17], "it is significant that the amendment did not refer to written evidence (such as affidavits and documentary material), nor did it refer to the transcript, whether of evidence or submissions."
Whilst the Tribunal's misinterpretation of s 49(3) would have been an error of law which appears on the face of the record, the Commission must also demonstrate that "the error is such as would warrant the grant of relief, bearing in mind that certiorari is a discretionary remedy" (Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; (2007) 171 A Crim R 510 at [40]. Cited more recently in AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 [22] (Basten JA)). For example, in Ramskogler v Director of Public Prosecutions (1995) 82 A Crim R 128, Handley JA wrote: Certiorari is a discretionary remedy. Even if this ground had been made out, in my opinion in the present case it is a technicality and I would have refused relief in the exercise of the court's discretion (citations omitted).

[9]

Ground 3 - the second defendant committed an error of law by limiting its consideration of the protection of the public interest to matters of reputation

The Commission submits that public perception of an individual's likely future conduct is a matter relevant to the fit and proper test and this may overlap with consideration of the public interest. Though, it claims "insofar as Ms Grech was concerned, other public interest factors loomed large". That included: diminution of public confidence in the industry (reputational damage or bringing the industry into disrepute), as well as the public interest in excluding a person from the greyhound racing industry who has had any form of involvement in live baiting or involvement with a person found guilty of engaging in live baiting (PWS [30]). The Commission submitted that the Tribunal confined its consideration of the public interest to only matters going to the reputation of the industry, which amounted to a failure to have regard to the broader public interest considerations (see [49] above).
In response, Ms Grech relied upon the overlap between the fit and proper person test, and the best interests of the greyhound racing industry (DWS, [36]-[37]). She submits that there was no material failure to consider the best interests of the greyhound racing industry.

[10]

Principles

Ground 3 as framed identifies the error as the Tribunal limiting its consideration of the public interest to matters of reputation. But it is apparent from the parties' submissions that the ground is based on a failure to consider other factors said to be mandatory.

[11]

Consideration

It is necessary to repeat that s 47(1) requires the Commission's satisfaction that the person seeking registration is a fit and proper person. From the words in parenthesis at the end of the subsection, this assessment is informed by "having regard in particular to the need to protect the public interest as it relates to the greyhound racing industry".
Reading s 47(1) as a whole, it follows that a range of factors will be relevant to the formation of the statutory opinion about whether an applicant is a fit and proper person. The consideration of the protection of the public interest relating to the greyhound racing industry is a mandatory consideration. As I have said it is the prism through which relevant factors are to be evaluated. The detrimental reputational consequence for the industry of a person not being fit and proper for participation is one of many possible factors that could be relevant to that person's fitness and propriety. But it is not the only consideration relevant for s 47(1). What a decision-maker is required to take into account is determined by construction of the governing statute (Bay Simmer Investments Pty Ltd v New South Wales [2017] NSWCA 135; (2017) 222 LGERA 286 at [56] (Basten JA)). While there may be a myriad of relevant considerations for the purpose of s 47(1), with regard to this particular statute, the objects are suggestive of other relevant matters that could arise such as the welfare of greyhounds (GRA, s 3A(f)). Whether a person has been involved in live baiting would obviously be highly relevant in the statutory context as to whether he or she is fit and proper. Clearly, if so involved at any time, he or she would not be registered given the provisions of s 40 GRA.
The Commission's submissions in the Tribunal, as it related to the public interest, centred on reputation (CB 142 [55], 143 [58], [63], 145 [70]). The other public interest factors referred to were: Ms Grech used frozen animal bait which at the time of use was not prohibited but is now prohibited under current rules (CB 145 [68]-[69]); and her association with Mr Kadir (CB 146 [76]). These propositions were contested on the facts and found against the Commission.
While the Commission's provides two further examples of matters beyond reputation relevant to the public interest, in these proceedings, first, "diminution of public confidence" and second, the public interest in excluding persons from the greyhound racing industry who were involved in or convicted of engaging in live baiting, it has not established that those were not considered in the present case or a pertinent factor that ought to have been considered that was not. The difference been the reputation of the industry and the "diminution of public confidence" is illusory.

[12]

Grounds 4-6 - whether Ms Grech was present during live baiting

[13]

Ground 4

By ground 4, the Commission alleges that the Tribunal committed an error by 'failing to have proper regard to [Ms Grech's] presence during the practice of live baiting" in applying the statutory test for registration as a greyhound racing participant. Ground 5 claims that the Commission's finding that her presence during live baiting was in her favour was unreasonable.
The Commission does not contend that Ms Grech actively participated in any animal cruelty offences, including the practice of live animal baiting. Rather, it is her knowledge of such offending and her association with Mr Kadir that is said to be relevant to her registration.
Whether a factor is relevant is "determined by the construction of the statute conferring the decision-making power" (Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 [134] McColl JA ("Wattie")).
In Wattie, McColl JA observed (at [153]-[154]): In considering whether the Commissioner took the relevant regulatory context into account, it is necessary to proceed from the premise that "[t]o expose all findings of fact, or the generality of them, to judicial review would expose the steps in administrative decision-making to comprehensive review by the courts and thus bring about a radical change in the relationship between the executive and judicial branches of government". Thus, administrative decisions should not be "construed minutely and finely with an eye keenly attuned to the perception of error." [T]he requirement of consideration is not satisfied by formalistic reference. Taking relevant matters into consideration calls for more than simply adverting to them. It has to be apparent that there has been "an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration". In determining whether that standard has been achieved, it is necessary both to read the challenged reasons by having regard to the way the case was argued and the context of the reasons read "fairly and as a whole". (Citation omitted.)
Also in Wattie, Emmett AJA said (at [227]): While a decision-maker such as the [NSWIRC] Commissioner is required to state reasons for the decision being made, such a decision-maker is not required to mention every fact or argument relied on by a losing party. It is also not necessary for a decision-maker to expose every step in the chain of reasoning that leads to the conclusion. The only question is whether the Commissioner entirely overlooked a mandatory consideration. (Footnotes omitted).

[14]

Ground 5

This leads to ground 5. The Commission submits the Tribunal's conclusion 'that the presence of [Ms Grech] during the practice of living baiting was a matter that was in [her] favour on the question …' of her registration under the Act was unreasonable, irrational and/or illogical.
There is a well-accepted high threshold to establish unreasonableness. However, noting the mischief which the Act is concerned with, and the especially pejorative status of live baiting in this context (s 40 GRA), a finding that a person was involved in live baiting coupled with an evaluation that this was a factor in favour of the person being registered would certainly cross this high threshold. In my view, the Tribunal's reasons should not be so understood.
The Commission placed particular emphasis on paragraph 56 of the Decision, which states: "The Tribunal has made its conclusion in respect of the live baiting matter where that, take as an individual factor, is in her favour". The single sentence of paragraph 56, consisting of less than 25 words, is a statement of conclusion that can only be understood in context of the reasons that precede it. Bearing in mind the Decision was given ex tempore, and reading the reasons as a whole, I understand this to be no more than the summation that the Tribunal has resolved the dispute about Ms Grech's involvement or knowledge in her favour for the reasons already given.
The Commission rightly reads into paragraph 56, Ms Grech's presence during the practice of live baiting. It is common ground that she was on the premises when this occurred.
I reiterate, reading the reasons as whole, the interpretation contended by the Commission is not tenable because it takes the sentence out of context with an eye finely tuned to the detection of error. Paragraph 56 should be understood as a finding in favour of Ms Grech that she did not know live baiting was occurring at Mr Kadir's property. That is to say, it is in her favour because she was not involved in and had no knowledge of the practice of live baiting at Mr Kadir's property (ie see [24] Decision). The allegation against Ms Grech was not that she participated in live baiting but that she must have been aware it was going on (and acquiesced in it) because she was there. The Tribunal rejected this and still went on to consider whether her mere presence itself ought to have consequences for her registration. In the circumstances as the Tribunal found them to be, it was held it ought not. This was open to the Tribunal.

[15]

Ground 6

It is convenient now to deal with the related ground 6. The Commission submits that if the Tribunal concluded that Ms Grech was present whilst live baiting took place, this conclusion was "at odds with her affirmed evidence to the Tribunal to the contrary" (PWS [48]). The Commission submits that this went to her integrity and ultimately that the Tribunal gave insufficient weight to this factor. The Tribunal described the issue as involving, "the fact of live baiting and that [Ms Grech] was there when it took place" (Decision, [24]). In this Court this was essentially presented as a credit issue.
In her statement, Ms Grech wrote that she first became aware of the occurrence of live baiting at Mr Kadir's property when she was shown video footage from an RSPCA officer executing a warrant on the property (Grech statement, [27]). The Commission places emphasis on an exchange between Ms Grech and RSPCA Inspector Flett Turner (see [16] above).
The Commission requested further information from Ms Grech in response to her application for registration dated 22 November 2021. In her reply to the Commission, Ms Grech provided details regarding her interaction with Inspector Turner. She explained her apparent admission to Inspector Turner was "not [a] properly considered" response and that she was "completely taken by surprise" by the Police and RSPCA officers at Mr Kadir's property.
In the Tribunal, Ms Grech's evidence was that she misspoke in response to the RSPCA inspector's question by agreeing that she was aware or present during the practice of live baiting (CB 164.12-.16). She agreed that since the day she spoke to Inspector Turner, her position is she had nothing to do with, nor had any knowledge, about live baiting.
To consider ground 6, it is necessary to understand the meaning of "being there when [live baiting] took place". Prior to doing so, it should be borne in mind that that it was entirely a matter for the Tribunal to assess Ms Grech's evidence in the context of the case run before him and to resolve the necessary questions of fact, constrained in this Court only by the unreasonableness standard. It is apparent that the Tribunal accepted Ms Grech evidence that she did not have knowledge of live baiting at Mr Kadir's property. And, Ms Grech "being there" when [live baiting] took place is not "at odds with her affirmed evidence" as contended by the Commission. That she was present is not to say that she was physically present or witnessed the practice of live baiting. Such a reading of the reasons would undermine the Tribunal's finding of fact that Ms Grech did not have knowledge of the occurrence of live baiting at Mr Kadir's property. In my view, the Tribunal's finding that Ms Grech was at the property whilst live baiting occurred involves no more a temporal connection that her activities at Mr Kadir's property coincided with his practice of live baiting.

[16]

Ground 7 - Ms Grech's association with Mr Kadir

By ground 7 the Commission claims that the Tribunal fell into error by failing to properly consider Ms Grech's ongoing association with Mr Kadir in determining registration under the GRA. As earlier said, Mr Kadir was convicted of live baiting offences.
It is apparent from the Decision that Ms Grech's association with Mr Kadir was properly regarded as of significance to the Tribunal. The Tribunal said (at [14] and [25]): Under great controversy, Kadir was found to be participating in live baiting. That involved a finding of live possums and live rabbits on his property. … [Ms Grech's] continued association with a person imprisoned (subject to ICO) for live baiting is of deep concern to the Tribunal, and the Tribunal will return to that.
The Tribunal described Ms Grech's relationship with Mr Kadir through her father, but subsequently through Mr Kadir's wife. Mr Kadir was not a "well man". Ms Grech had given an undertaking to Mrs Kadir to help Mr Kadir prior to her passing away (Decision, [23]).
The Tribunal found that Ms Grech's association with Mr Kadir "continued beyond the charging process to which they were subjected in 2015 right up until 2020 when he was sentenced". The Tribunal said he was concerned about the continued association, as it "scream[ed] out a lack of understanding of reputational conduct and reputational need of the industry" (Decision, [37]). The Tribunal pointed out that Ms Grech continued to associate with Mr Kadir at the time of her November 2021 application (Decision, [39]).
Whilst the Tribunal had regard to the reputational ramifications of Ms Grech's continued association with Mr Kadir and what that might say about her fitness to be a participant, it also weighed a series of countervailing factors which suggested the relationship was innocent: 1. Mr Kadir's ill-health and the undertaking that Ms Grech made to Mrs Kadir in this regard (Decision, [43]). In circumstances, the Tribunal considered that to place the reputation of the industry over Mr Kadir's health and her promise to Mrs Kadir "would be a harsh conclusion"; 2. Ms Grech's association with the "industry virtually all her life"; 3. her "love [of] greyhounds"; 4. her "desire to return to the greyhound industry", continuing in the industry with her son (at [45]); 5. that on the evidence the animals will have suitable kennel and other facilities (at [46]); 6. "her love of animals" generally (at [47]); 7. she ceased her relationship with Mr Kadir (albeit the relation subsisted for a long period without her grasping the reputation impact of the relationship on the industry) (at [50]); and 8. that she had acquainted herself with the relevant rules and regulations (at [51]).

[17]

Ground 8

By ground 8, the Commission claims that the conclusion that Ms Grech's ongoing association with Mr Kadir, as a person convicted of live baiting offences, was a matter in her favour in whether she was a fit and proper person was unreasonable, irrational and/or illogical. Quite clearly this is covering much of the same ground as ground 7.
Ground 8 draws on paragraph 43 of the Decision: The answer to some extent is to be found in fact in her favour in respect of her association with Kadir for two reasons. One, her own assessment that he was not travelling well - a Tribunal summary of words - and that he needed her personal support. Secondly, that undertaking to Kadir's deceased wife that she would continue to look after him.
The Tribunal's reasoning at paragraph 43 was not unqualified, rather by the words "to some extent", the factor in Ms Grech's favour was only to a limited extent. In any case, paragraph 43 must be understood in the context of the reasons as a whole. It is also important that the Tribunal pointed out the deleterious reputational concern of Ms Grech's ongoing relationship with Mr Kadir (see Decision [25]). It follows, clearly an unqualified use of the relationship as a positive factor in Ms Grech's assessment as a fit and proper person would not be consistent with the reasons a whole.
Moreover, the Commissioner's ground 9 does not accurately represent the Tribunal's finding at Decision [43]. That is to say, the Tribunal did not conclude that Ms Grech's ongoing relationship with Mr Kadir as a person convicted of living baiting offences was a matter in her favour regarding the application of s 47 of the GRA. The use of the subordinate conjunction creates a connection between the ongoing relationship and the criminal charges which is not apparent from the Decision.
Rather, reading the reasons a whole leads to the following meaning: The Tribunal recognised that Ms Grech's ongoing relationship with Mr Kadir had a reputational impact on the greyhound racing industry (eg Decision, [25], [37]). Despite this, in a limited sense, the ongoing relationship was to her credit for the purpose of determining whether she was a fit and proper person because she was caring for a man "not travelling well" and she was maintaining a promise to Mrs Kadir. In this regard, the ongoing relationship with Mr Kadir was a reflection of her good character.

[18]

Ground 9 - the ultimate satisfaction under section 47 was unreasonable

This ground is largely built on the preceding grounds attempting to impugn the factual integers of the Tribunal's decision that Ms Grech was a fit and proper person for the purpose of s 47 and that the registration power should be exercised in her favour under s 49. Given that I have rejected each assault on the individual findings which underpinned the Tribunal's ultimate finding the necessary conditions to set aside the Tribunal opinion that Ms Grech is a fit and proper person must be rejected.
I wish to make it clear however that had the Commission been able to establish that the findings made did not conform to law the position would have been different had the Tribunal accepted the Commission's case that Ms Grech had assisted Mr Kadir with knowledge or awareness that he was employing live baiting to train the greyhounds while she was present and assisting him. In my judgment that finding alone, as I have attempted to make clear would have made it legally unreasonable to have formed the opinion that she was a fit and proper person especially having regard to the public interest as it relates to the greyhound racing industry. In this regard the objectives of ensuring integrity in the industry and the welfare of greyhounds would have been powerful barriers to registration. Even though she has not been found guilty of any live baiting offence, the policy and purpose of s 40 would also have been a very powerful contrary consideration for both s 47(1) and s 49(3) purposes bearing in mind their overlapping operation.
Likewise, had the Tribunal rejected Ms Grech's non-culpable explanation for handling greyhounds while unregistered at a trial, non-disclosure of the withdrawn prosecution and the length of her association with Mr Kadir, a real question for determination by this Court about the reasonableness of the Tribunal's decision would have arisen. If all of these issues had gone against Ms Grech, and it was shown she was aware Mr Kadir was live baiting his greyhounds while she was assisting him, no reasonable Tribunal could have formed the opinion that she was a fit and proper person to be a participant in the industry.
But the Tribunal found none of these things. In fact, he found against the Commission on every material question of fact presented for his determination and those findings have not proven susceptible to review in this Court on administrative law principles.

[19]

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: 18 December 2023

airs [2022] HCA 17; (2022) 96 ALJR 497 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Purcell v Director of Public Prosecutions [2021] NSWCA 269 R v Berchet (1688) 1 Show KB 106 Ramskogler v Director of Public Prosecutions (1995) 82 A Crim R 128 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1998] NSWCA 8 Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105 Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 Texts Cited: M Aronson, M Groves, G Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, Lawbook Co, 2022) Category: Principal judgment Parties: Greyhound Welfare and Integrity Commission (Plaintiff) Donna Grech (First Defendant) Racing Appeals Tribunal (Second Defendant) Representation: Counsel: M Watts (Plaintiff) A Hourigan (First Defendant)

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