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[2026] NSWSC 694
Supreme Court of NSW
2026-06-18
Payne JA
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Harness Racing New South Wales v Sarina [2026] NSWSC 694
Hearing dates: 22 April 2026
Date of orders: 18 June 2026
Decision date: 18 June 2026
Jurisdiction: Common Law
Before: Payne JA
Decision: (1) Summons dismissed.
(2) Plaintiff to pay the first defendant’s costs.
Catchwords: JUDICIAL REVIEW — judicial review sought of decision of Racing Appeals Tribunal— where Racing Appeal Tribunal determined Harness Racing stewards lacked jurisdiction to bring charges against and impose a disqualification on a person previously prohibited from participating in the industry (having been ‘warned off’ years prior) — where that person assaulted a former harness racing steward — whether Tribunal decision contained an error of law on the face of the record
JUDICIAL REVIEW — decision of Racing Appeals Tribunal — whether a person submitted to the Rules of Harness Racing by appealing to the Harness Racing Appeal Panel while maintaining the Appeal Panel lacked jurisdiction — whether ‘connection with’ the industry contemplates only a current connection or a past connection
Original judgment source is linked above.
Legislation Cited: Crimes Act 1900 (NSW), s 35
Harness Racing Act 2009 (NSW) ss 2A, 3, 9, 10, 21, 22, 23, 34A, 34B, 34C, 34D, 48
Interpretation Act 1987 (NSW), s 33
Racing Appeals Tribunal Act 1983 (NSW), s 15B
Supreme Court Act 1970 (NSW), s 69(3)(b)
Thoroughbred Racing Act 1996 (NSW)
Australian Harness Racing Rules rr 15, 187, 231, 255, 256, 259, 267, 299, 309
Local Rules of Harness Racing for the State of New South Wales rr 1, 1A, 181A, 181D
Cases Cited: Ahern v Aon Risk Services Australia Ltd [2021] NSWCA 166
Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Boele v Rinbac Pty Ltd (2014) 88 NSWLR 381; [2014] NSWCA 451
Brealey v Board of Management of Royal Perth Hospital (1999) 21 WAR 79; [1999] WASCA 158
Calvin v Carr [1980] AC 574
Clements v Racing Victoria Ltd [2010] VCAT 1144
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; 24 ALR 307
Commissioner of Taxation v Racing Queensland Board [2019] FCAFC 224; 374 ALR 241
Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Sydney Trains [2025] FCAFC 39; 338 IR 301
Day v Harness Racing New South Wales (2014) 88 NSWLR 594; [2014] NSWCA 423
Day v Sanders (2015) 90 NSWLR 764; [2015] NSWCA 324
Goadsby v Harness Racing New South Wales [2025] NSWSC 977
Golden v V’landys [2016] NSWCA 300; 339 ALR 610
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Laurie v Carroll (1958) 98 CLR 310
M v Joya [2025] NSWSC 1569
McCarthy v Harness Racing New South Wales [2024] NSWSC 865
Mercato Sports (UK) Ltd v The Everton Football Club [2018] EWHC 1567 (Ch)
National Commercial Bank v Wimborne (1979) 11 NSWLR 156
NSW Thoroughbred Racing Board v Waterhouse (2003) 56 NSWLR 691; [2003] NSWCA 55
Pedrana v Racing New South Wales [2014] NSWSC 462
Racing New South Wales v Fletcher [2020] NSWCA 9
Ross v Harness Racing New South Wales [2020] NSWSC 1397
Simiana v Harness Racing New South Wales [2019] NSWSC 11
Trainor v Harness Racing New South Wales [2023] NSWSC 1278
Walker v Newmont Australia Ltd [2010] FCA 298
Texts Cited: Mark Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020, Federation Press)
Perry Herzfeld and Thomas Prince, Interpretation (3rd ed, 2024, Lawbook Co)
Category: Principal judgment
Parties: Harness Racing New South Wales (Plaintiff)
Ben Sarina (First Defendant)
Racing Appeals Tribunal (Second Defendant)
Representation: Counsel:
D A McLure SC with S Jeliba (Plaintiff)
N Wood SC with E Vuu (First Defendant)
Solicitors:
Cadre Moss (Plaintiff)
Hammond Nguyen Turnbull (First Defendant)
Crown Solicitors Office (Second Defendant, submitting)
File Number(s): 2025/00361297
Publication restriction: None.
Prior to 2011, Mr Sarina had been a licensed harness driver pursuant to the Harness Racing Act.
In December 2011, HRNSW charged Mr Sarina with an offence contrary to r 187(2) of the Australian Harness Racing Rules (together with the Local Rules of Harness Racing for the State of New South Wales referred to as the “Rules”). The charge alleged that Mr Sarina had given false evidence to stewards who were investigating corruption and improper practices in harness racing. In December 2012, a Special Panel of Inquiry found the charge was made out, and ruled that Mr Sarina be “warned off” permanently under r 256(2)(d) of the Rules. An appeal to the Racing Appeals Tribunal was dismissed.
On 27 February 2020, the incident which gave rise to the current proceedings occurred. Mr Sarina approached a Mr Michael Hurley. Mr Hurley had some years previously been a steward with HRNSW. Mr Sarina assaulted Mr Hurley. Mr Hurley sustained serious injuries as a result.
Mr Sarina was charged with an offence of recklessly inflicting grievous bodily harm, contrary to s 35(2) of the Crimes Act 1900 (NSW). Mr Sarina pleaded not guilty. He was convicted by Miller LCJ in the Local Court and sentenced to 12 months’ imprisonment, to be served by way of an Intensive Correction Order.
In a letter dated 23 June 2021, HRNSW stewards notified Mr Sarina that he had been charged with an offence contrary to r 231(1)(e) of the Rules, which provided that a person shall not “assault… anyone employed, engaged or participating in the harness racing industry or otherwise having a connection with it”. The particulars of the charge were:
“That [the Appellant] … did assault Mr Michael Hurley, a person having a connection with the harness racing industry as a former Harness Racing Steward.”
In March 2024, Mr Sarina pleaded not guilty to that charge. It was Mr Sarina’s case from the beginning that HRNSW stewards lacked jurisdiction to bring this charge against him.
On 29 November 2024, the HRNSW stewards convicted Mr Sarina of that charge. On 9 January 2025, the HRNSW stewards, acting under r 267, imposed a disqualification of 7 years, commencing from the date of that decision.
On 17 March 2025, an appeal to the Appeal Panel of HRNSW was dismissed. It was Mr Sarina’s case before the Appeal Panel that HRNSW stewards lacked jurisdiction to bring the charge under r 231(1)(e) of the Rules or impose the disqualification under r 267 against him. On 19 March 2025, Mr Sarina appealed that decision to the Racing Appeals Tribunal.
On 8 July 2025, a hearing was held before the Tribunal, constituted by the Hon. G J Bellew AM SC.
The parties accepted that at the time of the assault Mr Sarina had been permanently “warned off” premises to which the Rules applied and Mr Hurley had long ago retired as a steward.
Before the Tribunal, Mr Sarina did not contest the finding of guilt made by Miller LCJ in the Local Court nor deny the assault. His plea of not guilty to the charge contrary to r 231(1)(e) of the Rules was based upon a denial of HRNSW stewards’ jurisdiction. The Tribunal summarised the facts as follows:
“11. The Magistrate found that when Mr Hurley was delivering marketing material, he noticed the Appellant approaching him. When the Appellant was approximately 2 metres away, he said to Mr Hurley:
Do you remember me?
- Mr Hurley then described being punched by the Appellant, feeling blood in his mouth, and thinking that his jaw had been broken. At that point, the Appellant said to him words to the effect:
That’s for being a cunt when you were a Harness Racing Steward.
- The Magistrate noted that there was evidence that Mr Hurley had been a Steward with the Respondent up to 2006.
- Mr Hurley called triple 0 in the course of which he said:
I apparently must have known him back when I was a racing steward. He’s just walking out and I was just doing a letterbox drop and he said ‘Do you remember me’? and I said ‘Ah yeah, maybe’. And then he just king hit me and I think he’s broken my jaw.
- Mr Hurley did, in fact, suffer a broken jaw which required fixation.
- In finding the offence proved, the Magistrate concluded that the Appellant was not an impressive witness. He rejected his account of events and, in particular, rejected his assertion that he had acted in self-defence. Inferentially, he also rejected the Appellant’s denial that he had made the statement attributed to him in [12] above.
- I do not have the Magistrate’s remarks on penalty. However, all that needs to be said is that the Magistrate sentenced the Appellant to 12 months’ imprisonment, to be served by an Intensive Correction Order in the community. That will give some indication of what the Magistrate viewed as the high level of objective seriousness of the Appellant’s offending.”
The Tribunal was satisfied that Mr Sarina said the words attributed to him at [12] of the Local Court judgment quoted above. Miller LCJ in the Local Court had:
reached that conclusion having the benefit of the evidence before him;
concluded that Mr Sarina “generally was not an impressive witness”; and
rejected Mr Sarina’s assertion of self-defence, which was “inextricably linked” to his denial of the words used.
“1. The offence cannot be established because at the time of the assault, Mr Hurley did not have a connection with the harness racing industry and thus an essential element of the offence cannot be made out (the connection argument).
- Alternatively, even if the requisite connection is established, the Appellant, as a person who was warned off, was not bound by the Rules, and the Respondent had no jurisdiction to charge or penalise him (the jurisdiction argument).”
The Tribunal noted that Mr Hurley was not “employed, engaged, or a participant, in the industry at the time of the assault”. Any connection with the industry stemmed from his previous position as a steward, which connection had “long since ceased” by that time.
The Tribunal noted that neither the Harness Racing Act nor the Rules defined the terms “connect” or “connection” and instead referred to the Oxford Dictionary definitions of “connected” and “associated”.
The Tribunal rejected Mr Sarina’s submission that absent a contract between Mr Hurley and the first defendant, the relevant connection could not be made out. The Tribunal considered that “there is nothing in the terms of r 231(1)(e) which imposes a requirement that such contractual relationship must exist before a connection with the harness industry can be established”.
The Tribunal referred to the fact that appointment as Members of HRNSW is Ministerial, not contractual, and yet “it could not seriously be suggested that” a HRNSW Member has no connection with HRNSW or the industry more broadly.
The Tribunal was satisfied that the requisite connection was made out. However, the Tribunal considered there was a further question in issue, being whether the connection “must have existed at the time of the offence, or whether a past connection is sufficient”. This arose from the fact that the charge against Mr Sarina pursuant to r 231(1)(e) referenced “having” a connection with the harness racing industry, as opposed to “having had” such a connection.
In considering this question, the Tribunal noted, referring to Day v Harness Racing New South Wales (2014) 88 NSWLR 594; [2014] NSWCA 423 at [77]-[79]:
the Rules were not drafted by Parliamentary Counsel, and as such were less keenly scrutinised than legislation when passed;
the Rules are to be construed purposively;
a construction which gives a rule no operation at all is inconsistent with its purpose; and
it is legitimate to correct obvious drafting errors.
In relation to the terms of r 231(1)(e), the Tribunal concluded that:
“[T]he obvious purpose of r 231(1)(e) is to protect (amongst others) those who have a connection with the industry”.
There was “nothing in the terms of the rule which would support” the construction proposed by Mr Sarina, which would “certainly restrict the operation of the rule to the protection of those whose connection with the industry was current as opposed to past”. The Tribunal considered that “such a construction would run contrary to” the fact that an object of the Harness Racing Act is to protect the interests of the industry, and that an assault, the “obvious catalyst” for which was Mr Hurley’s role as a former steward, is “generally antithetical to the protection of the interests of the industry”.
Mr Sarina’s submission that “to establish a connection between a person and the harness racing industry, it was necessary that the person be someone whose conduct affects the integrity of racing meetings, and thus the public interest”, should not be accepted. In the decision of Pedrana v Racing New South Wales [2014] NSWSC 462 relied on by Mr Sarina, Rothman J was not attempting to be exhaustive, so as to exclude persons in the position of Mr Hurley. His Honour stated at [43]:
“It seems to me properly construed the term ‘another person associated with racing’ includes, at least, a person connected, directly or indirectly, with racing, whose conduct affects the integrity of racing meetings and thereby public interest as it relates to horse racing.”
(Emphasis added.)
The Tribunal followed the decisions in NSW Thoroughbred Racing Board v Waterhouse (2003) 56 NSWLR 691; [2003] NSWCA 55 and Golden v V’landys [2016] NSWCA 300; 339 ALR 610 and concluded that a person “becomes bound by the Rules only when that person becomes a participant, or becomes otherwise engaged in, the harness racing industry”, and that because Mr Sarina was warned off at the time of the assault, he was permanently prohibited from participation or engagement in the industry, and consequently not bound by the Rules.
The Tribunal set out the following passage in Golden v V’landys:
“The parties accepted as correct a statement in this Court about an earlier version of the relevant rules of racing in Thoroughbred Racing Board v Waterhouse (2003) 56 NSWLR 691; [2003] NSWCA 55 at [35]:
The Rules of Racing are rules to which participants in racing become contractually bound … (my emphasis).”
“60. In my view, that passage of his Honour’s judgment supports the conclusion that a person becomes bound by Rules upon becoming a participant in the harness racing industry. In other words, whilst the existence of a contract is not a pre-requisite, or condition precedent, to a connection with the industry, a person becomes bound by the Rules as a consequence of participation.”
(Emphasis in original.)
The Tribunal considered that further support for that proposition could be found in Commissioner of Taxation v Racing Queensland Board [2019] FCAFC 224; 374 ALR 241 at [93]-[100] in which a majority of the Full Federal Court observed that, “generally… persons engaging in sporting pursuits under the general control of established sporting bodies are taken to be bound by the rules of the sport in which they engage”.
The Tribunal concluded on the question of jurisdiction in this case:
“62. Viewed in the context of the present case, the corollary of that proposition is that if, like the Appellant, a person does not engage in the sport of harness racing or matters related thereto (which are under the general control of the Respondent), that person will not be taken to be bound by the Rules. In the present case, r 259 had the effect of prohibiting the Appellant from engaging in any of the activities set out in r 259(1)(a) – (k). Rule 259 thus prohibited the Appellant from any involvement in the harness racing industry at all. That has been the position since he was warned off. It follows that at the time of being charged and penalised, the Appellant was not, in any sense, a participant, or otherwise engaged, in the harness racing industry. He was a disqualified person having regard to the definitions of ‘disqualification’ and ‘person’ in the Rules. The penalty of a warning off which was imposed on the Appellant pursuant to r 256(2)(d), became operative upon its imposition, pursuant to r 256(4). It follows that, as the Appellant was not a participant, or engaged in, the harness racing industry, he was not, bearing in mind the authorities cited above, bound by the Rules.”
(Emphasis in original.)
The Tribunal was not persuaded that r 299 supported HRNSW’s position. In the sense contemplated by rr 299(a) and 299(b), at the material time, Mr Sarina was not licensed, nor carrying on, or purporting to carry on, any activity related to the harness racing industry. In the sense contemplated by r 299(c), nor was Mr Sarina a person “who in some other way [was] affected by the rules”. The Tribunal held that it would defy common sense to suggest that Mr Sarina was a person affected by rules implemented to govern an industry in which he was prohibited from participating. Rule 299 therefore had no work to do. Nor was resort to r 267 available, for the same reasons.
The Tribunal did not accept HRNSW’s submission that the Rules “should be construed as reflecting an agreement on the part of former participants that they would continue to be bound by them even after they have been prohibited from participating or engaging in the harness racing industry”, as:
the Tribunal did not find any provision in the Rules that supported the proposition; and
that submission runs contrary to s 10 of the Harness Racing Act, under which the fact of a participant’s registration enlivens the exercise of HRNSW’s supervisory power. Mr Sarina was not registered at the time of the assault. HRNSW did not at that time, and did not currently, have “any supervisory jurisdiction over [Mr Sarina] at all”.
The Tribunal made the following orders:
“1. The appeal is upheld.
- The decision of the Appeal Panel of Harness Racing New South Wales of 17 March 2025 is quashed.
- The charge against the Appellant alleging an offence contrary to r 231(1)(e) of the Australian Harness Racing Rules is dismissed.
- The appeal deposit is to be refunded.”
HRNSW sought judicial review of the decision of the Tribunal that upheld the appeal of Mr Sarina. Its original summons was filed on 18 September 2025.
After the exchange of written submissions HRNSW advanced an amended summons. At the hearing in this Court, leave was granted to rely on the amended summons. The amendments to the orders sought are underlined in the below:
“1. Order pursuant to s 69(3)(a) of the Supreme Court Act 1970 (NSW) (the Act) in the nature of certiorari, quashing the decision of the Racing Appeals Tribunal (Tribunal) delivered on 29 August 2025.
- Order pursuant to s 69(3)(b) of the Act that the defendant’s appeal against conviction to the Tribunal be dismissed.
- Order that the defendant’s appeal against penalty be remitted to the Tribunal.
- Further and in the alternative, an order that the matter be remitted to the Tribunal for redetermination according to law.
- Costs.
- Such other order as this Honourable Court deems fit.”
“Ground 1 - Error of law on the face of the record
1 The Tribunal erred in law in that:
a. the Tribunal found at [58] – [66] that HRNSW does not have, and did not have at the relevant time, any “supervisory jurisdiction” over Sarina;
b. further or in the alternative, the Tribunal in effect found that HRNSW did not have the power to deal with Sarina for a breach of AHRR 231 and/or prohibit Sarina from attending or taking part in any harness racing activity;
c. the Tribunal made the above findings on the basis that at all material times, Sarina had already been prohibited from attending or taking part in any harness racing activity upon Sarina being warned off permanently in 2012, and, therefore, he was not bound by the AHRR;
d. the above findings constitute legal error because:
i. the power conferred on HRNSW by s 10 of the Harness Racing Act 2009 (NSW) (HR Act), further or alternatively, the power conferred on the Appeal Panel by s 34D of the HR Act to deal with Sarina for a breach of AHRR 231 and/or prohibit Sarina from attending or taking part in any harness racing activity does not depend on him being a registered person and/or bound by the AHRR; alternatively,
ii. Sarina was bound by the AHRR, by reason of inter alia:
- his previous registration as a harness driver;
- the penalty imposed on him by HRNSW in 2012 to warn him off permanently under the AHRR, and the prohibitions/restrictions relating to warned off persons under the AHRR;
- rule 299 of the AHRR;
- his initiation of the appeal to the Appeal Panel.”
A question arose at the outset of the hearing in this Court about the content of the evidence. Counsel for HRNSW tendered without objection only the parts of the affidavit evidence it had filed that exhibited the orders and reasons of the Racing Appeals Tribunal, the Notice of Appeal to the Appeal Panel, and the orders of the Appeal Panel: Affidavit of Claudette Cecilia Chua sworn 15 September 2025 and the annexed Exhibit CC-1.
The reason offered for the selective tender was to seek to avoid the question which divided the Court of Appeal in Ahern v Aon Risk Services Australia Ltd [2021] NSWCA 166. In Ahern, a multi-tiered decision-making process occurred prior to the application for judicial review. Meagher JA’s view was that the orders of a Review Panel (equivalent for present purposes to the Harness Racing Appeal Panel in this case) were part of “the record” (see [26], [32]). White JA took a broader approach, namely, that the reasons and the orders of the Review Panel formed part of the record (see [98], [120]-[121]). Brereton JA determined that it was unnecessary to decide the issue (see [158]). Senior Counsel for Mr Sarina sought to tender the balance of the Chua affidavit and its exhibits, not as part of “the record”, but as “helpful contextual evidence”. Counsel for the respondent summarised their position in a brief exchange:
“HIS HONOUR: So I will take it into account when considering its relevance, and just to be clear, you are not tendering it as part of the record?
WOOD: Correct.
HIS HONOUR: But as an aid to construction of what was [pressed] by your opponent?
WOOD: In particular, whether there was error made on the record or not but also as to the question of discretion, and raised as relevant in our position by the very form of the summons that is pressed by the plaintiff, seeking to agitate upon this Court that the making of conclusions about consent but were not argued.”
2A Objects of Act
The objects of this Act are as follows—
(a) to provide for the efficient and effective regulation of the harness racing industry,
(b) to protect the interests of the harness racing industry and its stakeholders,
(c) to facilitate the development and operation of a sustainable and viable harness racing industry,
(d) to ensure the integrity of harness racing and associated wagering in the public interest,
(e) to provide for the functions and the powers of regulatory bodies,
(f) to ensure harness racing industry stakeholder engagement and participation in the strategic development of the harness racing industry as a whole,
(g) to protect and promote the welfare of harness racing horses.
racing official means the following—
(a) a member of HRNSW,
(b) the chief executive officer of HRNSW,
(c) a steward appointed by HRNSW,
(d) a member of staff of HRNSW,
(e) a member of the HRICG.
HRNSW as an entity is established by s 4 of the Act and is constituted as a body corporate with that name. HRNSW does not represent the Crown and is not subject to direction or control by the government: s 5.
HRNSW has been described as an independent statutory authority with regulatory functions and powers: Trainor v Harness Racing New South Wales [2023] NSWSC 1278 at [23] (Nixon J); see also Day v Sanders (2015) 90 NSWLR 764; [2015] NSWCA 324 at [70] (Basten JA, Leeming and Simpson JJA agreeing); Goadsby v Harness Racing New South Wales [2025] NSWSC 977 at [1] (Harrison AsJ); Ross v Harness Racing New South Wales [2020] NSWSC 1397 at [5] (Fagan J).
By s 9 of the Harness Racing Act, the functions of HRNSW are:
9 Functions of HRNSW
(1) HRNSW has the functions conferred or imposed on it by or under this or any other Act or law.
(2) Without limiting subsection (1), the functions of HRNSW include the following—
(a) to control, supervise and regulate harness racing in the State,
(b) to register harness racing clubs, harness racing horses, owners, trainers and drivers of harness racing horses, bookmakers for harness racing and other persons associated with harness racing,
(c) to initiate, develop and implement policies considered conducive to the promotion, strategic development and welfare of the harness racing industry in the State,
(d) to distribute money received as a result of commercial arrangements required by the Totalizator Act 1997,
(e) to allocate to harness racing clubs the dates on which they may conduct harness racing meetings,
(f) to initiate, develop and implement policies relating to the welfare of harness racing horses.
(3) HRNSW may affiliate with such organisations, whether in or out of New South Wales, as HRNSW considers appropriate.
(4) The functions of HRNSW are not limited by the rules and are to be exercised independently of Harness Racing Australia or any successor.
10 Powers of HRNSW
(1) HRNSW has power to do all things that may be necessary or convenient to be done for or in connection with the exercise of its functions.
(2) Without limiting subsection (1), HRNSW has power to do the following—
(a) investigate and report on proposals for the construction of new racecourses, and inspect new racecourses or alterations or renovations to existing racecourses,
(b) supervise the activities of harness racing clubs, persons registered by HRNSW and all other persons engaged in or associated with harness racing,
(c) inquire into and deal with any matter relating to harness racing and to refer any such matter to stewards or others for investigation and report and, without limiting the generality of this power, to inquire at any time into the running of any harness racing horse on any course or courses, whether or not a report concerning the matter has been made or decision arrived at by any stewards,
(d) direct and supervise the dissolution of a harness racing club that ceases to be registered by HRNSW,
(e) appoint an administrator to conduct the affairs of a harness racing club,
(f) disqualify a harness racing horse from participating in a race,
(g) exclude from participating in a race a harness racing horse not registered under the rules,
(h) prohibit a person from attending or taking part in a harness racing meeting,
(i) impose a penalty on a person registered by it or on an owner of a harness racing horse for a contravention of the rules,
(j) consult, join, affiliate and maintain liaison with other associations or bodies, whether in the State or elsewhere, concerned with harness racing,
(k) enter into contracts,
(l) acquire, hold, take or lease and dispose of real and personal property whether in its own right or as trustee,
(m) borrow money,
(n) order an audit of the books and accounts of a harness racing club by an auditor who is a registered company auditor nominated by HRNSW,
(o) scrutinise the constitutions of harness racing clubs to ensure they conform to any applicable Act and the rules and that they clearly and concisely express the needs and desires of the clubs concerned and of harness racing generally,
(p) publish material, including periodical publications, to inform the public about matters relating to harness racing, whether in the State or elsewhere,
(q) undertake research and investigation into all aspects of the breeding of harness racing horses and of harness racing generally,
(r) take such steps and do such acts and things as are incidental or conducive to the exercise of its powers and the performance of its functions.
(3) Nothing in this Act confers on HRNSW power to conduct harness racing meetings on its own behalf.
21 Disciplinary and work health and safety action may be taken by HRNSW
(1) HRNSW may, in accordance with the rules, do any of the following—
(a) cancel the registration under this Act of—
(i) any harness racing club, or
(ii) any harness racing horse, or
(iii) any owner, trainer or driver of harness racing horses, or bookmaker or other person associated with harness racing,
(b) disqualify, either permanently or temporarily, any owner, trainer or driver of harness racing horses, or bookmaker or other person associated with harness racing,
(c) prohibit any person from participating in or associating with harness racing in any specified capacity,
(d) prohibit any horse from competing in any harness race,
(e) prohibit any person from attending or taking part in a harness racing meeting,
(f) impose fines, not exceeding 200 penalty units, on any harness racing club or on any owner, trainer or driver of harness racing horses, or bookmaker or other person associated with harness racing for breaches of the rules,
(g) suspend, for such term as HRNSW thinks fit, any right or privilege conferred by this Act or the rules on any owner, trainer or driver of harness racing horses, or bookmaker or other person associated with harness racing,
(h) prohibit any person registered under the rules from taking part in any harness racing meeting held by any harness racing club that is not registered under the rules.
(2) Any fine imposed under subsection (1)(f) is to be paid to and be the property of HRNSW.
(3) HRNSW may only take action under this section for disciplinary purposes or for the purposes of work health and safety.
“[70] … disciplinary purposes within the meaning of s 21(3), in a context which includes cancellation of registration of clubs, horses, owners, trainers and drivers, temporary or permanent disqualifications, fines and other prohibitions as well as suspensions, picks up the protective disciplinary purposes familiar in the regulation of professional associations. For example, the power of this court to discipline a barrister is ‘entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved’: New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183–184.”
22 Rules in relation to harness racing
(1) HRNSW may make rules, not inconsistent with this Act or the regulations, for or with respect to the control and regulation of harness racing.
(2) Without limiting the generality of subsection (1), HRNSW may make rules for or with respect to the following—
(a) any matter that by this Act is required or permitted to be prescribed by the rules,
(b) any of the matters referred to in Division 1,
(c) the effect of a disqualification of, or other penalty imposed on, a person or harness racing horse under section 21(1),
(d) the allocation to harness racing clubs of dates on which they may conduct harness racing meetings and harness races,
(e) the holding and conduct of harness racing meetings and of races at any such meeting,
(f) the keeping of horses that are in the care or custody of persons registered under the rules,
(g) the breeding of harness racing horses,
(h) the naming and identification of harness racing horses,
(i) the appointment of stewards by HRNSW and the functions of those stewards (including functions that do not relate to harness racing meetings),
(j) conferring on stewards appointed by HRNSW the same functions as are exercisable by HRNSW under Division 1,
(k) the extent to which and the circumstances in which stewards appointed by HRNSW may exercise their functions to the exclusion of stewards of harness racing clubs,
(l) the fees and charges referred to in section 38.
23 Rules generally
(1) A provision of a rule made under this Division may—
(a) apply generally or be limited in its application by reference to specified exceptions or factors, or
(b) apply differently according to different factors of a specified kind, or
(c) authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body,
or may do any combination of those things.
(2) A rule made under this Division may apply, adopt or incorporate any publication as in force at a particular time or as in force from time to time.
(3) A rule made under this Division may not be made for or with respect to any of the matters for or with respect to which regulations may be made by virtue of this Act (section 48(1)(b) excepted).
(4) HRNSW may amend or repeal a rule made under this Division.
There are two sets of rules that together govern harness racing in New South Wales: the “Australian Harness Racing Rules” and the “Local Rules of Harness Racing for the State of New South Wales”. They are together, for the purposes of this appeal, “The Rules of Harness Racing New South Wales”.
The Local Rules were adopted on 1 September 2012 and the Australian Rules came into force on 1 September 1999: Day v Sanders at [22]-[23]. Both the Australian Rules and the Local Rules have been amended from time to time.
The Local Rules were made, not by the Governor pursuant to the general rule-making power in s 48, but by HRNSW, pursuant to s 10 of the Harness Racing Act: Day v Sanders at [72]. As recently noted by Harrison AsJ, no regulations seem to have been made: Goadsby v Harness Racing New South Wales at [7]; see also, Day v Harness Racing (NSW) at [10].
The Australian Rules were incorporated by HRNSW by the power granted to it under s 23(2) of the Harness Racing Act. The Australian Rules are more comprehensive than the Local Rules and “provide for a wide variety of aspects of harness racing”: Simiana v Harness Racing New South Wales [2019] NSWSC 11 at [11] (Lonergan J).
As noted above, the Australian Rules and the Local Rules are to be read together. Rules 1 and 1A of the Local Rules provide:
Application
NSWLR 1 The Australian Harness Racing Rules and the Local Rules of Harness Racing New South Wales (including the Rules of Betting) shall be read, interpreted and construed together and as so combined shall be and be known as “The Rules of Harness Racing New South Wales” and such rules apply to the administration, supervision and control of Harness racing throughout New South Wales. Insofar as there is any inconsistency between the Australian Harness Racing Rules and these Local Rules, these Local Rules shall prevail.
NSWLR 1A Any person who takes part in any matter coming within the Rules of Harness Racing New South Wales shall be held thereby to consent to be bound by them.
Local Rule 1A provides a clear indication that an act of participation is required to demonstrate consent by a person to be bound by the Rules of Harness Racing New South Wales.
The Dictionary to the Australian Rules states that HRNSW is the relevant “Controlling Body”: see also Day v Sanders at [79].
The Australian Rules provide the following definitions:
“Disqualification” means a penalty that imposes the restrictions contained in Part 16.
…
“Jurisdiction” means that country or State or Territory of Australia in which a Controlling Body or recognised harness racing authority has by law the power to control and regulate harness racing.
…
“Person” includes an individual, a syndicate, a corporation, a body corporate and an unincorporated association.
…
“Warned Off” or “Warning Off” means a decision or penalty prohibiting a person from entering any racecourse or place under the control of a club or the Controlling Body and a person “warned off” shall be subject to the same prohibitions as a disqualified person mentioned in rule 259 sub-rule (1).
Assault and interference
231.
(1) A person shall not:-
(a) threaten
(b) harass
(c) intimidate
(d) abuse
(e) assault
(f) otherwise interfere improperly with
(g) bully
anyone employed, engaged or participating in the harness racing industry or otherwise having a connection with it.
(2) A person shall not misconduct himself in any way.
Creation of offences
255.
(1) A person who fails to comply with any provision of a rule contained in Part 14 [General Offences] is guilty of an offence.
(2) A person who infringes an offence provision in these rules or the [Australian Trotting Stud Book Regulations] is guilty of an offence.
Powers
15.
(1) Stewards are empowered -
(a) to direct and control at any time the activities of persons licensed under these rules and anyone else appointed, employed or engaged in any aspect of the harness racing industry, concerning the application of these rules;
(b) to entertain and determine all matters under question or in dispute at or arising out of a meeting or race, or concerning the meaning of application of these rules, or concerning any aspect of the harness racing industry;
..
(e) to suspend or disqualify any person from participating in or being employed or engaged in or about the harness racing industry;
…
(l) to provide reports and recommendations about or arising out of any inquiry, investigation or determination or upon any subject connected with the harness racing industry to the Controlling Body;
….
(n) to impose any other penalties provided for in these rules;
…
(ae) to do anything else reasonably necessary to the performance of their duties…
256.
(1) One or more of the penalties set out in sub rule (2) may be imposed on a person, club or body guilty of an offence under these rules.
(2)
(a) A fine within the limits fixed by legislation or by the Controlling Body,
(b) conditional or unconditional suspension for a period;
(c) disqualification, either for a period or permanently;
(d) warning off, either for a period or permanently;
(e) exclusion from a racecourse, either for a period or permanently;
(f) a bar, either for a period or permanently, from training or driving a horse on a racecourse, track or training ground;
(g) conditional or unconditional suspension of registration for a period or cancellation of registration;
(h) conditional or unconditional suspension of a licence for a period or cancellation of a licence;
(i) a severe reprimand;
(j) a reprimand or caution.
(3) Should a rule of its own terms impose a penalty in respect of an offence created by that rule then, subject to any contrary intention expressed or otherwise apparent in that rule, that penalty is the only one which can be imposed in respect of that offence.
(4) Penalties, whether under this or any other rule, attach from the time they are imposed, except that the Controlling Body or the Stewards may postpone such attachment.
(5)
(a) Penalties other than a period of disqualification or a warning off under this or any other rule may be suspended for a period not exceeding two years upon such terms and conditions as the Controlling Body or Stewards see fit;
(b) If the offender does not breach any term or condition imposed during the period of suspension, the penalty shall be waived;
(c) If the offender breaches any term or condition imposed during the period of suspension then, unless the Controlling Body or Stewards otherwise order, the suspended penalty thereupon comes into force and penalties may also be imposed in respect of any offence constituted by the breach.
(6) Although an offence is found proven a conviction need not necessarily be entered or a penalty imposed.
(7) Before an offence is found proven, the following conditions shall be satisfied:-
(a) the offender shall be afforded reasonable opportunity to cross examine witnesses, make submissions, present evidence to the Controlling Body or the Stewards as the case may be;
(b) those submissions or evidence shall be taken into account;
(c) evidence relied upon in establishing the offence shall be identified;
(d) in a matter before the Stewards, those Stewards who finally determine that an offence has been committed shall be present during the whole of the proceedings.
Restrictions
259**.** (1) A disqualified person or a person whose name appears in the current list of disqualifications published or adopted by a recognised harness racing authority or a person warned off cannot do any of the following -
(a) associate or communicate with persons connected with the harness racing industry for purposes relating to that industry;
(b) be a member or employee of the Controlling Body;
(c) be an office holder, official, member or employee of a club;
(d) enter a racecourse or any place under the control of a club or Controlling Body;
(e) race, lease, train, drive or nominate a horse;
(f) conduct breeding activities;
(g) enter any premises used for the purposes of the harness racing industry;
(h) participate in any manner in the harness racing industry.
(i) permit or authorise any person to conduct any activity associated with the harness racing industry at his/her registered training establishment;
(j) place, or have placed on their behalf, or have any other interest in, a bet on any Australian harness racing race.
(k) associate with licensed persons connected with the thoroughbred or greyhound racing industry including but not limited to entering any premises owned or occupied by such licensed persons.
(2) A licence or other authority held by a disqualified person to do any of the things mentioned in sub rule (1) automatically lapses upon disqualification.
(3) The prohibitions mentioned in sub rule (1) come into effect immediately upon disqualification, subject to any contrary directions which might be given by the Stewards.
(4) If during a period of disqualification the Stewards form the opinion that the circumstances relating to the disqualified person have materially changed, they may remove one or more of the prohibitions set out in sub rule (1) either permanently or for a time.
(5) The power conferred by sub rule (4) does not empower the Stewards to remove the prohibition on an activity which can only lawfully be carried on under licence.
(6) Notwithstanding the foregoing provisions of this rule the Controlling Body may make determinations waiving, varying or qualifying the prohibitions set out in the rule.
(7) A disqualified person who fails to comply with this Rule is guilty of an offence and is liable to a penalty.
(Emphasis added.)
Disqualification by conviction
267.
(1) Subject to sub-rule (2) the Stewards may for such period and on such conditions as they think fit, disqualify a person who is found guilty of a crime or offence in any State or Territory of Australia or in any country which is punishable by a term of imprisonment.
(2) Where a person is found guilty of a crime or offence in any State or Territory of Australia or in any country and sentenced to a period of imprisonment the Stewards shall disqualify that person for a period that is at least equivalent to the actual sentence imposed.
(3) Sub-rule (2) shall apply where either part or whole of the period of imprisonment is suspended.
Scope of rules and related matters
299. All persons
(a) licensed under these rules;
(b) carrying on or purporting to carry on activities related to the harness racing industry; or
(c) who in some other way are affected by the rules,
are deemed to have knowledge of and be bound by them and of all things done under them.
Rule 303 permits HRNSW to create, use and issue any instrument, form, or document which it considers necessary or convenient to give effect to the Rules, and that it may maintain registers and records, determine procedures, and impose requirements which it considers necessary or convenient for the administration of the Rules.
Rule 309 of the Australian Rules provides as follows:
Regard to be had to purpose
309. In the interpretation of a rule a construction that would promote the purpose or object underlying it, whether expressly stated or not or which would facilitate or extend its application, is to be preferred to a construction that would not promote that purpose or object or which would impede or restrict its application.
Appeals relating to harness racing in NSW are governed by the Racing Appeals Tribunal Act 1983 (NSW) and associated regulations, the Harness Racing Act, and the Local Rules.
Appeals are addressed in Part 5A of the Harness Racing Act. Section 34A sets out initial definitions and s 34B provides for the right to appeal:
34A Definitions
In this Part—
convenor, of the Appeal Panel for an appeal, means the principal member or other member appointed as convenor under section 34G.
principal member means the principal member appointed under section 34F.
racing authority means—
(a) HRNSW, or
(b) a racing official, or
(c) a harness racing club.
34B Right of appeal
(1) A person aggrieved by any of the following decisions of a racing authority may appeal against the decision to the Appeal Panel—
(a) a decision to disqualify or warn off a person,
(b) a decision to disqualify a harness racing horse,
(c) a decision to revoke or suspend the registration of a person,
(d) a decision to fine a person a sum of $200 or more,
(e) a decision specified in the rules for the purposes of this section.
(2) HRNSW has a right of appeal to the Appeal Panel against the following decisions of a racing authority—
(a) a decision referred to in subsection (1)(a)–(d),
(b) a decision to dismiss a charge against a person for contravention of the rules.
34C Procedure on an appeal
(1) An appeal to the Appeal Panel is to be conducted as a new hearing.
(2) Fresh evidence, or evidence in addition to or in substitution for the evidence on which the decision appealed against was made, may be given on the appeal.
(3) The Appeal Panel may, subject to this Act and the rules, decide its own procedure.
(4) On an appeal, the Appeal Panel—
(a) is not required to act formally, and
(b) may inform itself on a matter in a way it considers to be just and is not bound by the rules of evidence, and
(c) must make its decision on the merits and justice of the case and is not required to follow legal precedent.
(5) The Appeal Panel is to sit as in open court when hearing the appeal but may sit in private if the Appeal Panel considers it necessary to do so in the public interest or to protect the safety of a person.
(6) In the exercise of the Appeal Panel’s functions on an appeal—
(a) the convenor of the Appeal Panel has the powers, authorities, protections and immunities conferred by the Royal Commissions Act 1923 on a Commissioner appointed under that Act, Part 2, Division 1, and
(b) the Royal Commissions Act 1923, except section 13 and Part 2, Division 2, applies, with any necessary modifications, to a witness summoned by, or appearing before, the Appeal Panel.
34D Decisions on appeal
(1) The Appeal Panel may do any of the following in relation to an appeal—
(a) dismiss the appeal,
(b) confirm the decision appealed against,
(c) vary the decision by substituting a decision that could have been made by the racing authority,
(d) refer a matter relating to the decision to the racing authority for rehearing in accordance with directions given by the Appeal Panel,
(e) make another order in relation to the disposal of the appeal as the Appeal Panel thinks appropriate.
(2) A decision of the Appeal Panel must be given effect.
New South Wales Harness Racing Appeal Panel
NSWLR 181A Pursuant to section 34B of the Act, the Appeal Panel has been introduced to hear appeals from certain decisions of a racing authority. No appeal may be commenced under section 15B of the Racing Appeals Tribunal Act 1983 if such appeal is able to first be commenced under section 34B of the Act.
NSWLR 181D (1) Pursuant to section 34C(1) of the Act, an appeal to the New South Wales Harness Racing Appeal Panel is to be conducted as a new hearing and otherwise in accordance with section 34C of the Act.
(2) All appeals are in the nature of re-hearings, the evidence to be considered being the evidence adduced at the hearing in respect of the decision appealed against, subject to the discretion of the Appeal Panel to admit or receive further evidence as provided for by section 34C(2) of the Act.
(3) The general procedure at all appeals is governed by section 34C of the Act, which may be supplemented from time to time by these Local Rules.
(4) Before the Appeal Panel, an appellant may, by leave of the Appeal Panel, be represented by a member of the legal profession.
(5) The Appeal Panel may have such persons to assist it as, in its discretion, it may deem necessary.
(6) Any fresh or new evidence intended to be relied upon by any party to an appeal should be served on the Appeals Co-ordinator at least 5 clear days prior to the date set down for the hearing of the appeal.
(7) The Appeal Panel is to commence the hearing of an appeal as soon as practicable, and in any event, within 28 days of the lodging of any appeal. The Appeal Panel may extend the time to commence the hearing of an appeal if it determines that special or exceptional circumstances exist to justify that extension. The fact that the appellant’s preferred legal counsel (if granted leave to appear) is not available on the date set down for the hearing of the appeal will not ordinarily constitute special or exceptional circumstances.
15B Appeals to Tribunal relating to harness racing
(1) A person who is aggrieved by any of the following decisions may, in accordance with the regulations, appeal against the decision to the Tribunal—
(a) a decision of the Appeal Panel on an appeal under the Harness Racing Act 2009,
(b) a decision for which an appeal is properly made to the Appeal Panel under the Harness Racing Act 2009 if the Appeal Panel—
(i) neglects or refuses to hear the appeal or
(ii) fails to make a decision on the appeal,
(c) a decision of HRNSW.
(2) HRNSW may, in accordance with the regulations, appeal to the Tribunal against a decision referred to in subsection (1)(a) or (b).
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”
“[16] Attempts to abandon the distinction between jurisdictional error and other errors of law, together with attempts to broaden the concept of ‘the record’ were rejected by the High Court in Craig v State of South Australia [1995] HCA 58; 184 CLR 163. … In the course of discussing the scope of the ‘record’ in respect of an inferior court, the ‘expansive approach’ adopted by this Court, particularly in Commissioner for Motor Transport v Kirkpatrick (1988) 13 NSWLR 368 at 389–390 per Priestley JA was rejected. After noting the absence of authority directly in point in the High Court, the Court in Craig, at 181, stated:
‘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. (Footnotes omitted)’
[17] Following that decision, s 69 of the Supreme Court Act was amended to provide that the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination: s 69(4). Given the procedural history outlined above, 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….
[19] These considerations require the applicant to identify with a degree of precision which grounds are said to involve jurisdictional error and which errors of law on the face of the record. As explained by Tate JA in Easwaralingam v Director of Public Prosecutions (Vic) [2010] VSCA 353; 208 A Crim R 122 at [25], a case apparently not involving an allegation of jurisdictional error:
‘[25] … [A]n application for certiorari is not the same as a general appeal for error of law, most importantly, because it falls to be determined on the basis of different material. An application for certiorari does not invite a scouring of all the evidence before the inferior court to determine whether the proper inferences were drawn from it or whether an item of evidence was overlooked.’”
It will be recalled that the HRNSW stewards found Mr Sarina guilty of a breach of r 231(1)(e) (set out at [54]) and disqualified him for 7 years by reason of his criminal conviction under r 267 (set out at [59]).
The plaintiff’s principal submission in this Court was that r 231 of the Rules was binding on all persons, regardless of whether that person has any connection with harness racing. “A person” within the meaning of r 231 (1) meant, it was submitted, any person in the world. Rule 231(1), so the argument went, required only that the identity of the putative victim be “anyone employed, engaged or participating in the harness racing industry or otherwise having a connection with it”.
The only limit identified by HRNSW on the exercise of the power by the stewards under r 231 is that it be a “legitimate” exercise of power and not an abuse of the power, for example by an unreasonable exercise of the power or an exercise of the power in breach of the rules of procedural fairness. The following exchange between this Court and Senior Counsel for HRNSW that took place during oral submissions made that clear:
“HIS HONOUR: If I am construing what ‘a person’ means within the meaning of section 231 sub 1, wouldn’t the first place I look is 231 subsection 2? What are the limitations on that person, ‘shall not misconduct himself in any way’?
MCLURE: This is a separate offence and probably borne of the same idea that fits in those catchall type prejudicial conduct offences …
HIS HONOUR: But doesn’t it tell me something about [1]. You say ‘a person’ means everyone in the world. If that is right, subsection 2, ‘a person’ would mean everyone in the world, wouldn’t it?
MCLURE: That’s right. So theoretically, the Harness Racing New South Wales stewards could determine that a person with no connection whatsoever to the industry had misconducted themselves. All sorts of questions would arise about whether or not that is a legitimate exercise of power such as, for example, whether or not there had been abuse of the power …”
It was expressly submitted that r 231 “has been drawn in an ambulatory way on the assumption that it will be exercised lawfully”. It was submitted that “[a]ny offence like this would require some exercise of discretion on the part of the stewards about whether or not to proceed and if the discretion miscarried because it was exercised in a way that was legally unreasonable or in denial of procedural fairness, that is the constraint.”
It was put that “in theory” the provision applies to anyone in the world, but that:
“MCLURE: … it would have to be subject to the lawful exercise of the power. So when one comes back to what is the nature or the ambit of the power conferred on the stewards, that is rule 15 which is itself informed by the conferrals of power in the Act. So rule 15 confers a power, relevantly 15(1)(b), ‘to entertain and determine all matters...concerning any aspect of the harness racing industry’”.
The plaintiff submitted that the Tribunal erred in its decision that HRNSW’s stewards did not have jurisdiction to impose restrictions or punitive conditions on Mr Sarina under the relevant framework. The plaintiff’s principal submission was that the HRNSW stewards’ authority to decide matters did not hinge on engagement with or participation in the harness racing industry. It was argued that these constraints were and are unnecessary and did not condition the exercise of the stewards powers in the Harness Racing Act which provided for statutory consequences.
It will be recalled that on the question of jurisdiction the Tribunal concluded that “a person becomes bound by [the] Rules upon becoming a participant in the harness racing industry. In other words, whilst the existence of a contract is not a pre-requisite, or condition precedent, to a connection with the industry, a person becomes bound by the Rules as a consequence of participation.” It was submitted that this conclusion constituted an error of law on the face of the record.
A central element of the plaintiff’s submissions was that there need not be a contract with HRNSW for the relevant statutory powers to be enlivened. The plaintiff argued:
“… It has been repeatedly recognised in the authorities that while a participant in the racing industry becomes contractually bound by the rules, the rules nevertheless have a statutory effect.”
(Footnote omitted.)
“If the authority of the stewards was limited to registered persons, this would have absurd consequences that could not be reconciled with the text or object of the [Harness Racing] Act. It would mean that there was no power to prohibit an unregistered person from attending a harness racing meeting, even if the stewards were satisfied that the person had, for example: (a) assaulted a participant in the harness racing industry; (b) been involved in illegal betting; or (c) corruptly bribed racing officials.”
(Footnotes omitted.)
I do not accept the plaintiff’s submissions. Some things may be quickly swept away. Contrary to the way the ground was originally formulated by the plaintiff, no question arose here as to the scope of HRNSW’s powers under s 10 of the Harness Racing Act. What occurred here is that the stewards found Mr Sarina guilty of an offence under r 231(1) and subsequently disqualified him under r 267.
The Appeal Panel’s powers were limited to those of the “racing authority” from whose decision the appeal was brought (here, the stewards):see the definition of HRNSW stewards as a “racing authority” in ss 3(1) (set out at [38]) and the rights of appeal from decision of a “racing authority” set out in ss 34A-34D of the Harness Racing Act (set out at [65]-[67]). Whatever the scope of HRNSW’s powers under s 10, the stewards do not have those same powers. The powers of the stewards and the Appeal Panel are the same. Section 34D(1)(c) of the Harness Racing Act authorises the Appeal Panel to make a decision which could have been made by the racing authority — that is, in this case, the HRNSW stewards.
Accepting that HRNSW “made” the relevant Australian Rules as “rules” under s 22 of the Harness Racing Act, as the relevant Australian Rules, those Rules are nonetheless picked up and applied by Local Rule 1 (subject to any inconsistency with the Local Rules). The clear terms of Local Rule 1A provide that that the Australian Rules only have “application” to a person who “takes part in any matter coming within the Rules of Harness Racing New South Wales [and] shall be held thereby to consent to be bound by them”.
Local Rule 1A makes clear that the “Rules of Harness Racing New South Wales” operate only where there is “consent to be bound by them”, which consent is manifested by participation by a person in any matter coming within the Rules of Harness Racing New South Wales.
The Tribunal did not conclude that registration, for example as a trainer or a driver, was the sole basis upon which a person becomes a participant in the harness racing industry. Contrary to HRNSW’s submission, the Tribunal did not conclude that HRNSW’s power (and the power ultimately granted to the stewards) was confined by the terms of s 10(2)(b) of the Harness Racing Act to “supervis[ing] the activities of…persons registered by HRNSW”. So much is clear from the much broader terms of the test that the Tribunal, correctly, adopted. In referring to s 10(2)(b), in context, the Tribunal was responding to a submission made by HRNSW based upon the suggested breadth of s 10 of the Harness Racing Act. As I have said, there was, in truth, no question before the Tribunal about any purported exercise of power by the HRNSW stewards under s 10.
In Golden v V*’*landys, with the agreement of McColl and Leeming JJA, I said:
“[60] The parties accepted as correct a statement in this Court about an earlier version of the relevant rules of racing in NSW Thoroughbred Racing Board v Waterhouse (2003) 56 NSWLR 691; [2003] NSWCA 55 at [35]:
The Rules of Racing are rules to which participants in racing become contractually bound; but they are also given statutory consequences, for example by s.14 of the [Thoroughbred Racing - then called the Thoroughbred Racing Board] Act.
[61] A conclusion to the same effect about the Rules of Racing in the form they took at the time of these events was reached by Robertson J in McHugh v Australian Jockey Club (No 13) (2012) 299 ALR 363; [2012] FCA 1441.”
“[96] In Re Queensland Principal Club (unreported, Supreme Court of Queensland, 29 January 1999), Williams J considered a matter arising out of the same race which was the subject of the decisions concerning Mr Hogno. His Honour relied upon the decision in R v Wadley when he expressly identified the relationship between parties in the racing industry as arising in contract and the parties binding themselves to the rules of racing by engaging in activities within the scope of the rules.
[97] This view also dominates in other states. In New South Wales Thoroughbred Racing Board v Waterhouse (2003) 56 NSWLR 691, Hodgson JA (with Handley and Santow JJA concurring in this respect) observed (at 698):
‘35 It is to be noted that the Board is not an instrument of government (see the Board Act s 4-s 6). The Rules of Racing are rules to which participants in racing become contractually bound; but they are also given statutory consequences, for example by s 14 of the Board Act.’
[98] That view was recently confirmed by the NSW Court of Appeal in Golden v V'landys (2016) 339 ALR 610 at [60]. It was also confirmed by Robertson J in McHugh v Australian Jockey Club (No 13) (2012) 299 ALR 363, although his Honour correctly emphasised that the nature and scope of the rights and liabilities of parties inter se will depend upon a construction of the relevant rules.”
The conclusions in these cases were part of the ratio of those decisions governing Thoroughbred Racing and were not distinguishable from the present case which involved the similar framework governing Standardbred Racing. The Tribunal correctly took the view it was bound by those decisions. There was no error of law made by the Tribunal in adopting a legal test binding upon it.
The suggestion that the only relevant restriction upon the exercise of disciplinary powers by HRNSW stewards against any person in the world is that r 231 “has been drawn in an ambulatory way on the assumption that it will be exercised lawfully” cannot be accepted. Shortly put, there is no statutory authority for the application of r 231 to every person in the world, regardless of any participation in the Harness Racing industry in NSW, subject only to an ill-defined assumption that the power will be exercised “lawfully”. No satisfactory suggestion was made by HRNSW as to how the lawfulness of its stewards’ conduct would be measured, save by references to procedural fairness and legal unreasonableness. How the legal unreasonableness of the conduct of HRNSW stewards was to be measured or tested if the stewards’ powers were at large was not satisfactorily explained.
A case relied on heavily by the plaintiff, Racing New South Wales v Fletcher [2020] NSWCA 9, does not assist them in the present case. There, I concluded (with the agreement of Bell P):
“[43] Although in the absence of a contrary argument being advanced by the respondent it is undesirable finally to decide the issue here, I tentatively incline to the view that the power to investigate a matter relating to racing is given a statutory character by s 13(1) of the Thoroughbred Racing Act. On this construction, the power to require the production of, and to examine, mobile phones in relation to an investigation of a matter relating to racing is a power whose force derives from statute. This is not to deny the proposition that the Rules of Racing of Racing NSW depend for the most part on agreement for their force, but recognises that s 13(1) of the Thoroughbred Racing Act gives the provisions of the Rules of Racing of Racing NSW which confer investigative powers efficacy independent of any agreement.” (Emphasis added.)
First, my remarks were obiter, as all parties accepted in Fletcher that Mr Fletcher was otherwise bound by the Rules of Racing of Racing NSW.
Secondly, the scheme was relevantly distinguishable. My tentative remarks were limited to the provisions of the Thoroughbred Racing Act 1996 (NSW) which confer investigative powers. I did not deny the proposition that the Rules of Racing of Racing NSW depend, for the most part, on agreement for their force. My suggestion was that “[s] 14(2)(d) of the Thoroughbred Racing Act specifically empowers Racing NSW to ‘inquire into and deal with any matter relating to racing and to refer any such matter to stewards or others for investigation and repor**t’” (see Fletcher at [42]), and that this was conferred as a statutory power by ss 13(1)(a) and (e) of the Thoroughbred Racing Act. Accordingly, the relevant investigative power may perhaps in that case apply by virtue of the statute, independently of any agreement. HRNSW could not point to any equivalent statutory provision here.
Thirdly, as I have explained, in the present case HRNSW did not purport to exercise powers under s 10 (or any other provision) of the Harness Racing Act. Rather, the stewards acted under the Rules. I agree with the first defendant that a critical missing element in the plaintiff’s case on this issue was the lack of a specific statutory provision such as that enacted by Victoria following the decision in Clements v Racing Victoria L**td [2010] VCAT 1144. In that case the tribunal had found that the powers of the stewards were contractual and “the mere assertion of jurisdiction does not confer it”. A specific statutory provision was later enacted to provide statutory powers to the stewards.
No error of law was revealed by the Tribunal’s conclusion that Mr Sarina was not bound by r 231(1)(e) or r 267. The Rules did not have statutory force. No error of law was shown in the Tribunal’s conclusion that Mr Sarina had no involvement in the harness racing industry at all and that this had been the position for many years since he was warned off.
No error was shown in the conclusion that the correct test for determining whether Mr Sarina was bound by rr 231 or 267 was whether Mr Sarina was, in any sense, a participant, or otherwise engaged, in the harness racing industry.
The Tribunal was not shown to have fallen into error of law on the face of the record in concluding that Mr Sarina was not a participant, or engaged in, the harness racing industry, and was not, bearing in mind authorities binding upon the Tribunal which were correctly cited, bound by the Rules.
As earlier explained, on 22 April 2026, the plaintiff was granted leave to file and rely on an amended summons dated 15 April 2026 which advanced a new contention, namely that by appealing to the Appeal Panel against the decisions of the stewards, Mr Sarina had bound himself under s 34B of the Harness Racing Act to rr 231 and 267. It was submitted that the decision of the High Court in Meyers v Casey (1913) 17 CLR 90 supported this reasoning.
It was submitted that proceedings before the Appeal Panel are proceedings de novo per s 34C of the Harness Racing Act. By initiating proceedings, it was said that the plaintiff thereby invoked the Appeal Panel’s jurisdiction to do anything set out in s 34D of the Harness Racing Act. It was submitted that by the act of initiating proceedings, the plaintiff was accepting he was bound by the Rules.
The plaintiff submitted that the proceedings before the Appeal Panel were not confined to a challenge to the jurisdiction of the stewards but challenged the underlying facts of the assault and the severity of the penalty. The plaintiff was thus seeking relief from the Appeal Panel wider than setting aside service or similar and was thereby taken to have waived objection to the jurisdiction: Laurie v Carroll (1958) 98 CLR 310 at 335–336 per Dixon CJ, Williams and Webb JJ; National Commercial Bank v Wimborne (1979) 11 NSWLR 156 at 176–177, 182 per Holland J; Brealey v Board of Management of Royal Perth Hospital (1999) 21 WAR 79; [1999] WASCA 158 at [38] per Ipp J, Malcolm CJ and Anderson J agreeing; Walker v Newmont Australia Ltd [2010] FCA 298 at [27] per Gordon J. It was submitted that a plaintiff who invokes the jurisdiction of a court is taken to be amenable to the same court deciding any cross claim: Mark Leeming, Authority to Decide*:* T**he L**aw of J**urisdiction in Australia (2nd ed, 2020, Federation Press) at 186 and the authorities cited at fn 82–85.
Finally, it was submitted, against the proposition that there could have been no error of law on the face of the record by failing to accept an argument not made to the Tribunal, that this was not a novel argument. It was submitted that this new point was “simply an additional strand to HRNSW’s existing arguments” on jurisdiction.
I reject the plaintiff’s new jurisdiction argument.
Dealing first with Meyers, the decision is clearly distinguishable. In Meyers the stipendiary stewards purported to disqualify Mr Meyers for 12 months for “suspicious practices” in connection with the running of a horse in a race. The stewards also disqualified the horse. While the stewards had power under the contract (by the Rules of Racing of the Victoria Racing Club, r 19(d)) to disqualify the horse, they did not have power to disqualify Mr Meyers. By r 33, decisions of the stewards were final subject to appeal. A person aggrieved by a decision of the stewards could appeal to the committee of the Victoria Racing Club. Critically, the committee did have power to disqualify Mr Meyers for “suspicious practices” in connection with the running of a horse in a race.
Mr Meyers appealed to the committee from the stewards’ decisions. But, in that appeal, he did not argue that the stewards lacked jurisdiction to disqualify him. The committee confirmed his disqualification. It was only in the Victorian Supreme Court that Mr Meyers sought to raise a jurisdictional objection. That was dismissed by Hodges J. An appeal was brought to the High Court.
The issue presented to the High Court in Meyers was thus the scope of the powers of the committee, under the contract to which the plaintiff was already bound. The committee had contractual power to disqualify him, but only because its powers under the contract were relevantly wider than the stewards’ powers under the contract.
Barton ACJ made clear (at 98) that the powers of the committee were wide enough to enable them to decide whether the stewards as their subordinate tribunal had jurisdiction. They were not, however, invited to do so. Isaacs J (with whom Rich J agreed) also held (at 120) that Mr Meyers could have disputed the stewards’ decision on the ground of their want of jurisdiction. His Honour pointed out that had he done so, however, the committee could have proceeded straight away on their own motion to consider under their own separate power whether to disqualify Mr Meyers for “suspicious practices” in connection with the running of a horse in a race. As I have explained, unlike the situation in Meyers, where the committee’s powers were wider than the stewards’ powers, the Appeal Panel and the Tribunal in the present case had no relevant wider powers than the HRNSW stewards.
Another important point of distinction with Meyers is that the Appeal Panel’s jurisdiction in the present case is statutory, under Part 5A of the H**arness R**acing Act. Mr Sarina, being a person aggrieved by the stewards’ decision, had a statutory right to invoke that jurisdiction by appealing against the stewards’ decision. Mr Sarina did not, by invoking that statutory right and challenging the jurisdiction of the stewards to punish him for breach of rr 231 or 267, thereby manifest his consent to be bound by rr 231 or 267. That is especially so where his case before the Appeal Panel was that the stewards’ decision should be set aside because he was not bound by rr 231 or 267.
The High Court did not, in Meyers, establish any principle that by appealing to the Appeal Panel against the decisions of the stewards, Mr Sarina had bound himself under s 34B of the Harness Racing Act to rr 231 and 267. As Meyers makes clear, Mr Meyers could have asked the committee to set aside the stewards’ decision based on absence of power, but he did not. As Isaacs J pointed out, in that case the committee had broader powers than the stewards, which they could have deployed. No such broader powers existed here.
Unlike the plaintiff in Meyers, the first defendant in this case submitted to the Appeal Panel (and the Tribunal) that he was not bound by rr 231 or 267. The scheme for statutory appellate review by the Appeal Panel (and then to the Tribunal) would be undermined by requiring a person in the defendant’s position to go straight to this Court. That conclusion is fortified by the Brian Lawlor principle (see Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; 24 ALR 307), applied to Part 5A of the Harness Racing Act. In Goadsby v Harness Racing New South Wales at [76], this Court criticised the plaintiff for seeking judicial review by the Court, rather than first taking advantage of the statutory scheme.
The analogy with the private international law waiver cases sought to be drawn by HRNSW is inapposite. It is clear that the first defendant, in the Appeal Panel and the Tribunal, argued clearly and unequivocally that he was not bound by rr 231 or 267. A legally ineffective or void (administrative) decision is susceptible to a statutory administrative appeal: Calvin v Carr [1980] AC 574; Brian Lawlor. The first defendant was clearly raising a jurisdictional objection in his statutory administrative appeal here. It is not correct on the facts of this case that the first defendant waived his objection to jurisdiction and thereby submitted to the jurisdiction of the Appeal Panel to be bound by rr 231 or 267. Whilst it is true that the first defendant did not accept he had spoken the words attributed to him by Mr Hurley and objected to any sentence being imposed, it is plain to demonstration that the first defendant submitted, from the beginning, that he was not bound by rr 231 or 267.
These reasons are sufficient to reject the plaintiff’s new argument. There is, however, an additional problem. The plaintiff’s new contention, based on s 34B of the Harness Racing Act, was not put to the Tribunal.
I would not conclude that the Tribunal made an error of law on the face of the record by failing to accept an argument not made to it. Even if I were persuaded that it was legally available, in the exercise of discretion, I would refuse to quash the decision on the basis of the new contention.
In Boele v Rinbac Pty Ltd (2014) 88 NSWLR 381; [2014] NSWCA 451, Basten JA and Sackville AJA explained the relevant principles. Basten JA said:
“[14] As will be seen below, it is tolerably clear that the Tribunal did not take this two stage process. That would involve an error of law which might be analysed as an implicit decision that no such two stage procedure was required. Arguably the decision of the Tribunal might have been set aside on that basis, but that was not a ground of appeal to the District Court. Accordingly, it is not a matter which it is open to the applicant to rely upon in this Court. That is because the District Court did not fail to exercise its jurisdiction by failing to consider a point not raised before it. (At least, that is conventional reasoning: whether it is consistent with the approach of the High Court in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 is not a matter which was debated in this application.)”
“[100] Since preparing these reasons I have read the judgment of Basten JA in draft. I do not disagree with the principles stated in his Honour's judgment. My disagreement relates only to whether the matters relied on by Mr Boele in this Court as constituting errors of law by the District Court were raised with sufficient clarity before the District Court. I appreciate that it follows from Kirk that there may be cases in which an inferior court or tribunal commits a jurisdictional error even if the point was not raised by one of the parties. But as a general rule, in my opinion, if a party seeks to invoke the supervisory jurisdiction of the Supreme Court on the ground of error of law, particularly when it is alleged that an inferior court has committed a jurisdictional error in hearing an appeal from a tribunal, it is important for that party to show that the relevant arguments were put to the inferior court with reasonable clarity. Otherwise the supervisory jurisdiction of the Court risks becoming not only a second avenue of appeal on questions of law, but an opportunity to raise new issues at the third stage of the proceedings. That cannot be conducive to the orderly and efficient conduct of litigation.”
“[63] … Consistent with the limited role of this Court provided under s 69 of the Supreme Court Act, it will be seldom that a party will be allowed to argue that an inferior court committed a jurisdictional error or error of law when that point was not raised before it: Boele v Rinbac Pty Ltd (2014) 88 NSWLR 381; [2014] NSWCA 451 at [14] (Basten JA), [100] (Sackville AJA); Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Sydney Trains [2025] FCAFC 39; (2025) 338 IR 301 at [38] (Perram, Rangiah and Shariff JJ); see also, Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 (Latham CJ, Williams and Fullagar JJ); [1950] HCA 35; Bird v DP (a pseudonym) [2024] HCA 41; (2024) 98 ALJR 1349 at [39] (Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ) and the authorities there cited. In any event, for the reasons that follow it is not necessary to reach a conclusion on this issue.”
“Whether there can be a jurisdictional error where the CEPU’s construction of s 425(1)(a) was not raised before the Full Bench
[38] The general answer to this question appears to be no: Boele v Rinbac Pty Ltd [2014] NSWCA 451; 88 NSWLR 381 at 386 [14] per Basten JA and 404 [100] per Sackville AJA. On the other hand, there are jurisdictional limitations which are so central that the failure of a party to raise the limitation before a decision-maker will not prevent a jurisdictional error from arising: Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at 575 [76] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. Without expressing a concluded view, we would have thought it unlikely that s 425(1)(a) constituted a jurisdictional limitation of the kind in Kirk.
Discretionary refusal of relief
[39] Even if the CEPU had demonstrated the existence of a jurisdictional error, we would have refused it relief in the exercise of the Court’s discretion. The NSW Court of Appeal has observed that certiorari may be denied where the party seeking it failed to raise the matter before the initial decision maker: see, e.g., Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 at [176] per McColl JA and [189] per Macfarlan JA. Here the CEPU not only failed to raise the construction it now advances in this Court with the Full Bench, but in fact advanced a submission to the Full Bench which is the opposite of that construction. It is difficult to see that this is behaviour which should be rewarded.”
The plaintiff submitted that if, contrary to its principal submissions, the authority over the first defendant did depend on establishing participation in the harness racing industry, such participation had been established. The matters relied upon by the plaintiff were:
Mr Sarina had, many years before, been permanently warned off by application of r 259(1)(a) for misconduct. Non-compliance with r 259(1)(a) would result in the commission of another offence under r 259(7). It followed, so the argument went, that Mr Sarina continued to be a person “affected” (or, potentially affected) by the Rules because of these ongoing restrictions and risks of further sanctions.
As Mr Sarina had once been bound by the Rules, an express term of being bound by the Rules was an acceptance that HRNSW could exercise its power at any time in the future permanently to restrict him from future participation in harness racing.
Jurisdiction existed by reason of the assault that underlay the putative exercise of the stewards’ power presently at issue. Mr Sarina assaulted a former steward, and when doing so, said, “That’s for being a cunt when you were a Harness Racing Steward”. The Tribunal made a finding that these words were said, and that the man Mr Sarina assaulted did have “the requisite connection to the harness racing industry to establish the assault offence under [Australian Harness Racing Rules r] 231”. It followed that the first defendant had a continuing connection to the harness racing industry.
I do not accept these submissions.
Local Rule 1A provides that the Rules only have “application” to a person who “takes part in any matter coming within the Rules of Harness Racing New South Wales [and] shall be held thereby to consent to be bound by them”. Local Rule 1A reflects the principle that the Rules of Harness Racing New South Wales apply to persons who consent to be bound by them.
The relevant question is whether Mr Sarina, at the time of the assault, was shown by relevant participation in any matter coming within the Rules of Harness Racing New South Wales to have consented to be bound by rr 231(1)(e) and 267. The answer to that question was a question of fact and depended on whether Mr Sarina had agreed with HRNSW to be bound by those Rules in the sense discussed by the Full Court in Commissioner of Taxation v Racing Queensland Board by reference to Mercato Sports (UK) Ltd v The Everton Football Club [2018] EWHC 1567 (Ch).
Analysis of whether Mr Sarina, at the time of the assault, “consent[ed] to be bound by” rr 231(1)(e) and 267, involved “a fact sensitive analysis undertaken by reference to the general principles of contract formation”: Mercato Sports, per Eyre J at [41] quoted with approval in Commissioner of Taxation v Racing Queensland Board. The Tribunal concluded in this case, on the facts, that Mr Sarina had not consented to be bound by rr 231(1)(e) and 267.
The Tribunal’s conclusion was clear. The relevant law in Golden v V’landys and Commissioner of Taxation v Racing Queensland Board was set out. No error was demonstrated in the application of that law in the finding that a person who does not engage in the sport of harness racing or matters related thereto (which are under the general control of HRNSW) will not be taken to be bound by the Rules. In the present case, r 259 had the effect of prohibiting the appellant from engaging in any of the activities set out in r 259(1)(a)–(k). Rule 259 thus prohibited Mr Sarina from any involvement in the harness racing industry at all. As the Tribunal found, “[t]hat has been the position since he was warned off. It follows that at the time of being charged and penalised, the [first defendant] was not, in any sense, a participant, or otherwise engaged, in the harness racing industry.” This was a conclusion of fact. No error of law on the face of the record was shown.
The three further bases upon which the plaintiff relied do not demonstrate any error of law on the face of the record:
The submission that non-compliance with the permanent warning off under r 259(1)(a) would result in the commission of another offence under r 259(7) and render the first defendant “potentially affected” by the Rules addresses the wrong test. The Tribunal set out the legal test explained in Golden v V’landys and Commissioner of Taxation v Racing Queensland Board. It was not submitted that those tests were incorrect. The Tribunal found that r 259 prohibited the first defendant from any involvement in the harness racing industry at all. That conclusion (of fact) was not shown to be wrong. To reason that the first defendant was “potentially affected” by the Rules in the way identified by the plaintiff does not establish that the first defendant was in any sense a participant, or otherwise engaged, in the harness racing industry. The Tribunal’s conclusion on this issue was, in any event, a conclusion of fact.
I do not accept that if a person has at one time become bound by the Rules, this involves an acceptance by that person that HRNSW could exercise its power at any time in the future permanently to restrict him or her from future participation in harness racing. Shortly put this is a different, and inconsistent, test to that described in Golden v V’landys and Commissioner of Taxation v Racing Queensland Board. If it were the test, it would not be relevant to ask if a person was a participant, or otherwise engaged, in the harness racing industry. One need only ask whether one had ever, at any time in the past, been a participant in the industry. The terms of r 299 give rise to no different conclusion. Mr Sarina was not licensed under these rules, carrying on or purporting to carry on activities related to the harness racing industry or in some other way (present tense) affected by the rules. That Mr Sarina had been affected by the rules in the past was an insufficient basis for the stewards to exercise jurisdiction under rr 231 or 267 in the present over him.
The submission that jurisdiction existed by reason of the assault that underlay the putative exercise of the stewards’ power presently at issue confuses the connection, if any, that Mr Hurley continued to have with HRNSW and the relevant question of whether the first defendant was in any sense a participant, or otherwise engaged, in the harness racing industry. Assuming, for the sake of the present argument, that the Tribunal was correct to conclude that Mr Hurley had “the requisite connection to the harness racing industry to establish the assault offence under [Australian Harness Racing Rules r] 231”, it does not follow that the first defendant was in any sense a participant, or otherwise engaged, in the harness racing industry.
The Tribunal made no error of law in finding that the defendant was not bound by rr 231(1)(e) or 267, or at least he could not be disqualified for breach of r 231(1)(e) or under r 267. If, contrary to my conclusion, there was an error, it was an error of fact. I reject the plaintiff’s submission that error of law on the face of the record was shown in relation to the Tribunal’s conclusion about jurisdiction.
Given that I have concluded that no error of law on the face of the record was shown in the decision of the Tribunal about jurisdiction, it is not strictly necessary to examine the connection argument.
Having said that, there is much to commend the first defendant’s argument that the plain meaning of the language in r 231(1)(e) connotes only a current connection to the harness racing industry. This flows from the use of the present participle — “having a connection”. Given that the Rules bear every indication of having been drafted by persons familiar with statutory drafting techniques, I see no basis to read the language otherwise than in accordance with its ordinary meaning: Day v Sanders at [23] and McCarthy v Harness Racing New South Wales at [30].
The plaintiff submitted that there must be a connection, but that a purposive approach suggested that this connection should not be limited to a person being presently “employed, engaged or participating in the harness racing industry”. Textual support was suggested to be found in the second half of r 231; namely, that being “anyone employed, engaged or participating in the harness racing industry or otherwise having a connection with it”.
Whilst I accept that the correct purposive approach provides some support for the conclusion reached by the Tribunal, I am slightly concerned about the difficulties that approach faces given the clear language used. The construction accepted by the Tribunal is arguably inconsistent with the principal component in the definition of the class protected, which plainly speaks only to current connections (“employed, engaged or participating in”). If the final component (“or otherwise having a connection with”) encompassed past connections it would also be internally inconsistent with the language of, “having”, present tense, connections with the harness racing industry. The definition should be read as a whole, and the meaning of words or phrases of a document should be determined with reference to the meaning of associated surrounding words: Perry Herzfeld and Thomas Prince, Interpretation (3rd ed, 2024, Lawbook Co) at [6.20], [24.20] and [24.30]ff and the cases there cited.
The language of r 231(1)(e) read as a whole and in context suggests that “otherwise having a connection with” the harness racing industry is limited to current connections with the harness racing industry. Of course, there may be degrees of current connection with the harness racing industry and a person may, on the facts, have a current connection to the harness racing industry although that connection may not be close or immediate. It may be, I simply do not know, that by reason of his current activities, and despite the fact he had long ago ceased to be a steward, Mr Hurley could be described as a person with a current connection to the harness racing industry.
Given my conclusion about jurisdiction, however, it is unnecessary to reach any final conclusion about this question of construction here.
It eventually became common ground that if I decided to quash the decision of the Tribunal I should remit the matter for redetermination (alternative prayer 3 of the plaintiff’s submissions), because it would not be for this Court to make the order sought by the plaintiff under s 69(3)(b) of the Supreme Court Act 1970 (NSW) (prayer 1 and 2 of the plaintiff’s submissions). This joint submission was correct but, given my conclusions, does not arise.
For the foregoing reasons I make the following orders:
Summons dismissed.
Plaintiff to pay the first defendant’s costs.
**********
Harness Racing New South Wales
Sarina
[2025] FCAFC 39
[2010] HCA 1
(2012) 83 NSWLR 302
(1990) 170 CLR 1
(2014) 88 NSWLR 381
(1999) 21 WAR 79
(2014) 88 NSWLR 594
(2015) 90 NSWLR 764
(2010) 239 CLR 531
(1958) 98 CLR 310
(1979) 11 NSWLR 156
(2003) 56 NSWLR 691
(1968) 117 CLR 177
(1988) 13 NSWLR 368
(2012) 299 ALR 363
(2016) 339 ALR 610
(1913) 17 CLR 90
(2025) 338 IR 301
(1950) 81 CLR 418
(2024) 98 ALJR 1349