Karakatsanis & Anor v Racing Victoria Limited [2013] VSCA 305

Karakatsanis & Anor v Racing Victoria Limited [2013] VSCA 305 - VSCA 2013 case summary — Zoe

[24]

At the times which are relevant to this appeal, the horse 'Howmuchdoyouloveme' was trained by the first plaintiff. It was normally stabled and trained at Rosehill. On 13 October 2012, the horse and its gear were transported to Melbourne. The horse was initially stabled at Caulfield Racecourse, where it raced on 20 October. It was then moved to Flemington Racecourse, where it was kept in the stables of Mr Steve Richards. The horse was allocated box 11 at those stables.
On 3 November 2012, which was Derby Day, the horse was due to run in race 8 at the Flemington Racecourse. The race was scheduled to commence at 4.30 pm, and the horse was due on the racecourse at 1.30 pm.
On 3 November 2012, the two plaintiffs and Mr Chris Wood arrived at the Richards stables shortly after 6.00 am, in order that the plaintiffs could attend to the horse. Mr Wood was a close friend of the two plaintiffs. The plaintiffs mixed a saline powder in the feed room, and placed it in a chaff bag, which contained a stomach tubing apparatus. A feed mix was also prepared in a white bucket. The plaintiffs and Mr Wood then departed from the stables between 7.30 am and 8.00 am.
Later in the morning, Mr Kane Ashby and Mr Dion Villella, who were stewards and members of the compliance assurance team of Racing Victoria Limited, received information that the horse was to be stomach-tubed. As a result of that information, Mr Ashby and Mr Villella took up concealed positions near box 11.
At 12.37 pm, Mr Pat Cannon, a licensed trainer, who was assisting the first plaintiff, arrived at the stables. He parked the float outside the double gate of the stables. At approximately 1.02 pm, the two plaintiffs and Mr Wood arrived at the stables. The first plaintiff unlocked the feed door room and also unlocked the front gates which were secured by chains and a padlock. The plaintiffs, Mr Wood and Mr Cannon then entered the stables. Mr Cannon placed a head collar on the horse.
After a short time, the first plaintiff left the box. He placed the chain around the front gate, and he was observed to be manipulating the padlock which had previously been secured to the chain. At about the same time, he gave a hand signal to the persons who had remained in or near the box.
At that point, Mr Ashby contacted Mr Villella on his telephone, and told him to enter the stables. When Mr Villella entered the stables, he searched the two plaintiffs and Mr Wood. At the first plaintiff's request, Pat Cannon brought the horse out of box 11 to the wash bay area. Mr Ashby then entered the stables and inspected box 11. On doing so, he observed a chaff bag and a white feeder bucket which was empty. The chaff bag contained two naso-gastric tubes, a funnel, a small bucket and a sachet containing some powder. He asked the plaintiffs to explain why those articles were in a bag in box 11. The second plaintiff's response was, 'I've just picked up the wrong bag'. He said that he meant to carry a bag, which he believed contained a biscuit of hay, as well as a bucket containing hay feed and put them in box 11. Mr Villella asked the second plaintiff to show him the bag containing the hay, and the two men went to the feed room. There, the second plaintiff picked up a bag which was empty. He then took some hay from a pallet and put it in the bag.

[28]

The Member then proceeded to make findings in respect of five issues of fact raised by the evidence of the witnesses.
The first, and most important, issue arose from the evidence of the second plaintiff, in which he adhered to the explanation that he gave to Mr Ashby for the presence of the bag containing the naso-gastric tubes in the horse's box. In particular, the second plaintiff stated that he had mistakenly picked up that bag in the feed room, wrongly believing that it contained a biscuit of hay. The Tribunal Member rejected that evidence in unequivocal terms. He noted that the bag containing the tubes, and the bag which the second plaintiff claimed that he had intended to pick up, were visually distinctive. The Member regarded the second plaintiff as an 'unimpressive and unreliable witness' and he adopted the defendant's submission that the second plaintiff 'was prepared to make up evidence on the run in an endeavour to support his case'. He thus rejected the explanation given by the second plaintiff, and stated that he was satisfied 'to the requisite standard' that the second plaintiff had deliberately put the bag, containing the naso-gastric tubes, in box 11, knowing that it contained stomach tubing equipment.
The second factual issue concerned evidence by Mr Ashby that, shortly after the first plaintiff left the stable, he heard the first plaintiff state, 'I will call you if there's any trouble'. The first plaintiff and Mr Cannon both disputed that evidence, and claimed that the first plaintiff had said to the second plaintiff, 'Call me if there's any trouble.' The Tribunal Member did not accept that evidence, and he was satisfied, to the 'requisite Briginshaw standard,' that the evidence of Mr Ashby was correct as to what the first plaintiff had stated to the second plaintiff.
The third factual issue concerned the hand signal given by the first plaintiff when he was at the gate. It was common ground that at that point the first plaintiff did give such a signal. In his evidence, Mr Ashby described how the first plaintiff put his hand through the triangle section of the gate, and he demonstrated the signal which he saw the first plaintiff give. Mr Ashby interpreted the signal as a warning to those inside the gates, while the first plaintiff stated that he was signalling to the second plaintiff to bring the horse up. The Tribunal Member did not make any express finding in relation to that difference in the witnesses' evidence.
The fourth issue of fact arose from the evidence of Mr Villella, that he had observed the first plaintiff at the gate with the chain and a padlock in his hand, and that Mr Villella believed that he was attempting to lock the gate. The first plaintiff, in his evidence, endeavoured to explain his actions, by stating that he was attempting to play with the padlock because it was stiff. That evidence was contradicted by Mr Villella, who stated that on the following Monday he had tested the padlock, and found that it only required a little force to lock. The Member regarded the explanation given by the first plaintiff, for his actions, as 'feeble'. He said that there was no logical reason for the first plaintiff to be holding the chains and playing with the padlock, if he was not intending or attempting to lock the gate. The Member preferred the evidence of Mr Villella, and was satisfied 'to the required standard' that the first plaintiff was in the process of locking the gate.
The fifth issue of fact, determined by the Tribunal Member, arose from the fact that there was no twitch in the horse's box. In his evidence, the second plaintiff stated that he always used a twitch to drench the horse. It was therefore put that, in the absence of such a twitch, it was unlikely that he would have intended to stomach-tube the horse. The Tribunal Member rejected that evidence of the second plaintiff. In doing so, he relied on inconsistencies in the evidence given by the second plaintiff with evidence which he had given to the steward's inquiry, and to the racing tribunal, on the need to use a twitch when stomach-tubing the horse.
Having decided those issues of fact, the Tribunal Member noted that he had considered all the evidence, including the veterinary evidence given by Dr van Veenendaal and Dr Faehrmann. He stated, 'In the circumstances it is unnecessary for me to refer to that evidence although I have not disregarded the relevant parts of that evidence'.
The Tribunal Member then stated:

[93]

It must be acknowledged, at the outset, that the two matters, relied on by the plaintiffs, are of some force. In particular, I accept that the absence of any substance, to feed to the horse through the stomach-tube, was a weighty factor in favour of the plaintiffs, which militated against the drawing of the inference that the plaintiffs intended to stomach-tube the horse before the race.
Nevertheless, I do not accept the submission by the plaintiffs that it was not open to the Tribunal Member, in any circumstance, to reasonably draw an inference as to an intention to stomach-tube the horse, in the absence of the finding of a substance to introduce to the horse through the stomach-tube. In particular, I do not accept the submission by Mr Nash that a conclusion, as to the existence of such an intention, would not be logical in the absence of the existence of a substance to introduce to the horse through the tube. Ultimately, the question as to whether, notwithstanding the absence of the substance, an inference as to intention is nevertheless established on the balance of probabilities, must depend upon the combined force and weight of the factors relied on by the Tribunal in favour of drawing such an inference. In particular, the question is whether the combined force of those facts is such that, notwithstanding the two points relied on by the plaintiffs, it was open to the Tribunal, by rational inference, to conclude that the plaintiffs did intend to stomach-tube the horse.
The first, and most important, fact, found by the Tribunal Member, was that the second plaintiff intentionally took the stomach-tube to the horse's box, 30 minutes before the horse was due on course. The second plaintiff endeavoured to explain the presence of the stomach-tube in the bag on the basis that he mistakenly picked up the wrong bag. That explanation was rejected by the Tribunal Member. It is important to bear in mind that the second plaintiff did not seek to proffer any other 'innocent' explanation for the presence of the naso-gastric tubes in the bag in the horse's box, shortly before the horse was due on course. For example, neither plaintiff suggested - as was put in submissions before me - that the naso-gastric tubes might have been brought to the box in order to enable the horse to be stomach-tubed with a saline drench after the race, so as to prevent the horse becoming dehydrated. The absence of any such 'innocent' explanation given by the second plaintiff, and accepted by the Tribunal, had the effect that the Tribunal Member was entitled, and indeed obliged, to act on the basis of an established fact that the second plaintiff had deliberately brought a stomach tube to the box containing the horse, shortly before the horse was due to depart for the racecourse, without any appropriate explanation being given for the presence of the stomach-tube in the horse's box.

[94]

Pausing there, and standing alone, that fact, of itself, was a powerful circumstance in favour of drawing an inference that the naso-gastric tube had been brought to the horse's stall for the purpose of stomach-tubing the horse. Logically, the purpose of a naso-gastric tube is to stomach-tube a horse. There was no other reason why the stomach-tube would be brought to the horse's stall. No other explanation was given by the plaintiffs for its presence there. The conveying of a stomach-tube to the box of a horse, prima facie, is a sound starting point for the drawing of an inference in favour of an intention by the second plaintiff to stomach-tube the horse.
That fact, of course, was not the sole support for the finding by the Tribunal Member. In addition, the Member found that the first plaintiff said to the second plaintiff, when he was stationed at the gate, that 'I'll call you if there's any trouble'. At about the same time the first plaintiff was proceeding to lock the gate with a padlock. There was no logical reason for the first plaintiff to lock the gate at that point. On the contrary, as the horse was shortly due on the course, it would be illogical to lock the gate, unless there was some other important reason to do so. Further, at about that time, the first plaintiff was observed to give a hand signal to the second plaintiff.
The case, in respect of the intention of the two plaintiffs, was essentially a circumstantial case. The task of the Tribunal Member was to consider the combined weight and force of those facts working together, and not in isolation from each other.[41] Taken together, those four facts were a strong basis upon which the Tribunal Member was entitled to infer that the first and second plaintiffs were acting in combination to stomach-tube the horse before the race. The case made on behalf of the defendant, before the Tribunal, was that the two plaintiffs were acting in combination. There was at least a prima facie basis for such a conclusion. Thus, it was not in issue before the Tribunal, or on appeal, that the actions and conduct of each of the plaintiffs, in pursuance of that joint combination, might be used as evidence to prove the participation by the other plaintiff in the joint enterprise.[42] In those circumstances, there was a strong basis upon which the Tribunal Member might reasonably conclude, as a matter of inference, that it was the intention of each of the two plaintiffs that the second plaintiff stomach-tube the horse.
As I have already stated, I acknowledge that the absence of a substance to introduce through the naso-gastric tube, was a weighty factor militating against the drawing of such a conclusion. I also acknowledge that the evidence of the two veterinary surgeons, as to the risks associated with stomach-tubing a horse, was relevant as bearing on the probabilities as to the existence of the joint agreement and intention of the plaintiffs to stomach-tube the horse. However, ultimately, those two facts do not logically preclude the drawing of an inference, on the balance of probabilities, as to the existence of an intention by the plaintiffs to stomach-tube the horse, taking into account the principles stated by the High Court in Briginshaw v Briginshaw. For those reasons, I do not accept that it was not open to the Tribunal Member to rationally infer, on the balance of probabilities, that the two plaintiffs intended to stomach-tube the horse before the race. Thus, I reject the submission made on behalf of the plaintiffs that the Tribunal Member erred in concluding, by way of inference, that the plaintiffs had an intention to stomach-tube the horse. It follows that ground 4 of the Notice of Appeal should fail.

At a glance

Court

Decision date

Before

Source

Judgment (157 paragraphs)

Karakatsanis & Anor v Racing Victoria Limited [2013] VSCA 305 (29 October 2013)

Parties

Legislation Cited (2)

Cases Cited (14)