EVIDENCE LAW - Application of Briginshaw to Victorian Civil and Administrative Tribunal - Victorian Civil and Administrative Tribunal Act 1998 ss 97, 98 - Evidence Act 2008 s 140 - Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 - Greyhound Racing Authority v Bragg [2003] NSWCA 388.

1 The applicants seek leave to appeal a decision of Kaye J dismissing an appeal on questions of law from a decision of the Victorian Civil and Administrative Tribunal ('the Tribunal') constituted by his Honour Senior Sessional Member John Nixon.[1]

2 The right of appeal from the Tribunal to a single judge is itself conditioned by a requirement for leave.[2]

3 In turn leave to appeal from the decision of a single judge on appeal from the Tribunal is required by s 17A(3A) of the Supreme Court Act 1986.

4 The decision forming the subject matter of the appeal before Kaye J was itself one by which the Tribunal affirmed decisions made by the Racing Appeals and Disciplinary Board. The facts in issue between the parties are thus now being sought to be litigated for the fourth time. Nevertheless they are at their heart relatively simple.

5 Rule 175 of the Australian Rules of Racing provides:

The Committee of any Club or the stewards may penalise:

...

(k) any person who has committed any breach of the Rules, or whose conduct or negligence has led or could have led to a breach of the Rules.

(l) any person who attempts to commit, or conspires with any other person to commit, or any person who connives at or is a party to another committing any breach of the Rules.[3]

No horse engaged to be run in a race, official trial or jump out shall without the permission of the Stewards be stomach-tubed within 24 hours of the appointed starting time for such race, official trial or jump out. For the purposes of this Rule 'stomach-tubed' means any application to a horse of a naso-gastric tube.

7 As a result of events on 3 November 2012 (Victoria Derby Day) the applicants were charged with a series of offences relating to the intended stomach-tubing of a horse known as 'Howmuchdoyouloveme'.

8 Two charges were laid against the first applicant:

(a) a charge alleging a breach of Rule 175(k). The particulars alleged that on or before 3 November 2012 the first applicant arranged for the second applicant to stomach-tube the horse before race 8, and that his conduct in doing so could have led to contravention of Rule 64G(1).

(b) a charge under Rule 175(l). The particulars alleged that in arranging and or/authorising the second applicant to stomach-tube the horse before race 8, the first applicant had conspired with the second applicant to commit a breach of Rule 64G(1).

9 Three charges were laid against the second applicant. They were:

(a) a charge under Rule 175(k). The particulars alleged that the second applicant had arranged with the first applicant and/or agreed to stomach-tube the horse before race 8, and that before race 8, he had placed a bag containing two naso-gastric tubes, a funnel, a bucket and powder in the horse's box for the purposes of stomach-tubing the horse before race 8. It was alleged that the conduct could have led to a breach of Rule 64G(1).

(b) a charge under Rule 175(l). The particulars alleged that on or before 3 November 2012 the first applicant had arranged with and/or authorised the second applicant to stomach-tube the horse before race 8, and that in return the second applicant had thereby conspired with the first applicant to breach Rule 64G(1).

(c) a second charge under Rule 175(l). The particulars of this charge were that before race 8 on 3 November 2012 the second applicant had placed a bag containing two naso-gastric tubes, a funnel, a bucket and powder in the horse's box for the purpose of stomach-tubing the horse before race 8, and that he had thereby attempted to commit a breach of Rule 64G(1).

10 At the relevant time the first applicant was a licensed racehorse trainer within the meaning of the Rules and was licensed as a visiting trainer with Racing Victoria Limited. The second applicant was registered with Racing Victoria Limited as a visiting stablehand and was employed as a stablehand for the first applicant.

11 The Racing Appeals and Disciplinary Board upheld each of the charges against the applicants. It disqualified the first applicant from training for a period of nine months effective from midnight on 31 May 2013. It disqualified the second applicant from acting as a registered stablehand for a period of two years. On review the Tribunal affirmed the decisions of the Racing Appeals and Disciplinary Board and confirmed the penalties imposed by it.

12 Kaye J summarised the background facts as follows:[4]

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.

13 The review proceedings before the Tribunal were a hearing de novo of the charges against the applicants. Mr Ashby and Mr Villella each gave evidence on behalf of the respondent together with an analytical chemist, Mr Battie. The two applicants, Mr Wood, Mr Cannon and two veterinary practitioners, Drs Veenendaal and Faehrmann, gave evidence on behalf of the applicants. His Honour the appeal judge summarised the Tribunal's reasons for decision as follows:[5]

1. The Tribunal Member commenced his reasons for decision by noting that the defendant bore the onus of satisfying the Tribunal that the charges had been proved. The Member stated that the applicable standard of proof was that described by the High Court in Briginshaw v Briginshaw.[6] He observed that the allegations were serious, and that the applicants faced a sanction which could affect their livelihoods. Thus he stated:

Applying the Briginshaw standard I must be comfortably satisfied that each charge has been proved to the requisite standard.

1. The Member then proceeded to make findings in respect of five issues of fact raised by the evidence of the witnesses.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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'.
8. The Tribunal Member then stated:

This is a circumstantial case and the outcome depends on whether certain facts have been proved to the Briginshaw standard and whether those facts, if proved to the requisite standard, go to found the inference for which the respondent contends, namely that there was an intention on the part of the applicants to stomach-tube the horse on the race day before the horse competed in a race on that day.

1. The Tribunal Member then referred to the principles which apply to the drawing of inferences in civil cases, as stated by the Court of Appeal in Transport Industries Insurance Co Ltd v Longmuir[7] and Chapman v Cole,[8] namely, that the inference to be drawn against a defendant must be the more probable inference.
2. Having referred to those principles, the Tribunal Member concluded his reasons as follows:

I have already referred to the six issues raised by Dr Pannam which he submitted go to found the inference for which the respondent contended, namely, that the applicants intended to tube the horse prior to the race on race day. The respondent was required to prove the facts alleged in those various issues to the Briginshaw standard. Having decided which of those issues has been proved to the required standard I then look at the combination of facts proved to determine whether I should draw the inference for which the respondent contended. I am comfortably satisfied to draw the inference that Con and Tony intended to tube the horse prior to the race on race day. There was time and opportunity to do so. Tony had placed the bag (exhibit 9) in box 11 while Con was endeavouring to lock the front gate. Ashby and Villella then arrived on the scene. I am satisfied that the respondent has proved the charges against each applicant.

14 It can be seen that this conclusion emphasises three critical intermediate conclusions of fact:

(a) that there was time and opportunity for the applicants to stomach-tube the horse;

(b) that the second applicant placed the bag containing the naso-gastric tubes in box 11; and

15 The Tribunal had previously rejected the explanation given by the second applicant that he made a mistake in taking the bag to the box.[9] It had also made subsidiary findings of fact that the first applicant's actions were accompanied by the statement, 'I'll call you if there's any trouble';[10] that the second applicant gave a hand signal to those within the stables as he was approached by the Stewards;[11] that the second applicant's evidence concerning the twitch was contrived and that he sought to alter it in an attempt to show there was not enough time for the horse to be stomach-tubed[12] and that the bag which the second applicant placed in the stable had been brought from Sydney and used for the duration of the Melbourne trip to contain the stomach-tubing equipment.[13]

16 The amended grounds of appeal argued before Kaye J and in respect of which he granted leave were as follows:[14]

(1) The Tribunal erred in drawing inferences from the facts found without applying the Briginshaw standard of proof to the drawing of such inferences where the nature of the proceedings attracted the Briginshaw standard of proof;

(2) The Tribunal misdirected itself as to the law regarding the drawing of inferences where the nature of the proceedings attracted the Briginshaw standard of proof;

(3) The Tribunal failed to direct itself in relation to the requirement that to constitute an attempt an act must be 'sufficiently proximate;'

(4) The conclusion drawn by the Tribunal is erroneous in that it could not be drawn in the absence of a finding that the plaintiffs or either of them were in possession of or had access to a substance with the intent of administering such substance to the horse in breach of the Australian Rules of Racing;

(5) There are no findings of fact from which the Tribunal could conclude:

(a) that the first plaintiff arranged with the second plaintiff and/or agreed to administer a substance to the horse Howmuchdoyouloveme in breach of the Australian Rules of Racing;

(b) that the second plaintiff arranged with the first plaintiff and/or agreed to administer a substance to the horse Howmuchdoyouloveme in breach of the Australian Rules of Racing;

(c) that the second plaintiff attempted to administer a substance to the horse Howmuchdoyouloveme in breach of the Australian Rules of Racing;

(6) The Tribunal failed to provide adequate reasons in as much as:

(a) the reasons provided do not adequately explain the reason for the Tribunal disregarding the evidence of Dr van Veenendaal and Dr Peter Faehrmann.

(b) the reasons provided do not contain findings of fact from which the ultimate conclusion reached by the Tribunal can be drawn;

(c) the reasons provided do not sufficiently reveal the logical steps by which the Tribunal proceeded from its findings of fact to its conclusions.

17 It was contended before Kaye J that the relevant questions of law raised by the appeal were embodied in the errors identified in these grounds.

18 The current application is sought to be brought on the basis of a different formulation of the relevant questions of law:[15]

(a) In what circumstances can a Tribunal infer from the actions of a person that the person intended to perform an act which, at the relevant time, that person knew to be impossible?

(b) In what circumstances can a Tribunal infer from the actions of a person that the person was attempting to perform an act which the person, at the relevant time, knew to be impossible of performance?

(c) In what circumstances can a Tribunal properly draw an inference, on the Briginshaw standard, which is not consistent with uncontradicted expert evidence?

(d) Are the reasons of a Tribunal adequate where the Tribunal:

(i) states that it has taken into account the evidence of expert witnesses called before it;

(ii) draws an inference which appears to be contra-indicated by that evidence; but

(iii) gives no explanation as to how it took that evidence into account or how it drew the inference in the face of the expert evidence?

19 In my view this formulation of the relevant questions of law is too broad both in the generality of the terms in which it is expressed and because it cannot be seriously arguable that the appeal judge erred in failing to resolve questions that were not put to him and in respect of which no leave to appeal was granted pursuant to s 148 of the VCAT Act.

20 Likewise the proposed grounds of appeal to this Court go beyond those argued before Kaye J and the scope of leave to appeal granted by him:

1. Having regard to the whole of the evidence, including the evidence of the veterinarians, and having regard to the absence of evidence of any substance to be administered to the horse, the learned Trial Judge, ought to have found that it was not open to the Tribunal reasonably to infer to the Briginshaw standard that the Appellants:

(a) intended to stomach tube the horse before the race;

(b) conspired to stomach tube the horse before the race;

(c) attempted to stomach tube the horse before the race.

1. Both the Tribunal and the learned Trial Judge erred in failing to draw a distinction between the absence of a reason and the absence of an explanation given by the Appellants for taking the stomach tube to the horse's stall.
2. In holding that it was open to the Tribunal to draw the inference that the Appellants:

(a) intended to stomach tube the horse before the race;

(b) conspired to stomach tube the horse before the race;

(c) attempted to stomach tube the horse before the race;

the learned Trial Judge erred in that he gave insufficient weight to:

(i) the absence of any substance to administer to the horse;

(ii) the failure of the Tribunal to give any consideration to the absence of any substance to be administered to the horse;

(iii) the uncontradicted and unchallenged expert evidence that to stomach tube the horse before the race would be reckless, dangerous and pointless;

(iv) the impossibility on the facts found (and of which the Appellants were aware) of using the stomach tube to administer any substance to the horse prior to the race;

(v) the fact that there was no practical purpose in using the stomach tube on the horse prior to the race otherwise than to administer some substance to the horse;

(vi) the uncontradicted and unchallenged evidence that it would possibly be necessary to stomach tube the horse with saline solution after the race;

(vii) the uncontradicted and unchallenged evidence that for this purpose a substance was prepared and placed in the bag found in the horse's box;

(viii) the uncontradicted and unchallenged evidence that the Appellants intended to stomach tube the horse after the race by using the stomach tube and powder in the bag found in the horse's box.

1. The learned Trial Judge erred in concluding (despite the matters set out in paragraph 3(vi), (vii) and (viii)) that the Tribunal, in finding that there was no innocent explanation for bringing the stomach tube to the horse's stall, 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" [Reasons paragraph 69].
2. The learned Trial Judge erred in finding that the statement by the Tribunal [in paragraph 26 of its reasons] "I have read and considered all the evidence in this review, including the veterinary evidence given by Dr. John van Veenendaal and Dr. Peter Faehrmann as well as the scientific evidence given by Dr. Batty. In the circumstances, it is unnecessary for me to refer to that evidence although I have not disregarded the relevant parts of that evidence" indicated with sufficient clarity and precision:

(a) that the Tribunal had taken into account the whole of the evidence of the veterinarians, Dr. John van Veenendaal and Dr. Peter Faehrmann;

(b) whether and how the Tribunal had taken into account that evidence of the veterinarians, Dr. John van Veenendaal and Dr. Peter Faehrmann:

(i) that to stomach tube the horse before the race would be reckless, dangerous and pointless;

(ii) that there was no practical purpose in using the stomach tube on the horse prior to the race otherwise than to administer some substance to the horse;

(c) the use which the Tribunal made of that evidence in reaching its conclusion.

1. The learned Trial Judge erred in failing to hold that the reasons provided by the Tribunal were inadequate, particularly as those reasons did not:

(a) adequately explain the way in which the Tribunal used the evidence of Dr. John van Veenendaal and Dr. Peter Faehrmann;

(b) deal with the significance of the absence of any evidence of a substance which was to be administered to the horse;

(c) sufficiently reveal the logical steps by which the Tribunal proceeded from its findings of fact to its conclusions.

1. The learned Trial Judge erred in holding it was open to the Tribunal:

(a) to infer from the failure of the Second Appellant, to give an explanation for the presence of the stomach tubing equipment in the horse's stall, that the stomach tubing equipment had been brought into the horse's stall for the purpose of stomach tubing the horse before the race; and thereby

(b) to reverse the onus of proof.

21 It will be seen that proposed ground 3 (to which in part proposed ground 4 relates) is expressed by reference to the weight of the evidence and in particular alleges that Kaye J 'gave insufficient weight to' various matters. This is not a proper form of ground on an appeal on questions of law.[16] The basic problem facing the applicants is that they have lost at each stage of the proceeding upon the facts. The primary question raised before Kaye J was whether it was open to the Tribunal to conclude as it did on the evidence. If it was so open then the Tribunal did not commit an error of law in reaching the conclusion that it did, albeit that it may (or may not) have erred on the facts. The appeal was not concerned with the weight of the evidence insofar as that bore upon the assessment of the relative weight of competing considerations. It was concerned with the question of whether the Tribunal's conclusion was properly open to it.

22 In Transport Accident Commission v Hoffman[17] Young CJ and McGarvie J stated of an appeal 'on a question of law' against a decision of the predecessor to VCAT:

How then is it to be construed? It is not to be construed as limited to an appeal from a decision of the Tribunal on a question of law. Nor is it to be construed as granting an appeal from any decision which involves a question of law. The via media we think is to construe the section as granting a right of appeal from any decision of a Tribunal on a question of law which is involved in the Tribunal's decision. See per Deane J in Director-General of Social Services v Chaney.[18] This construction would exclude an appeal upon such questions as whether a particular decision was against the evidence and the weight of evidence: see Collins v Minister for Immigration and Ethnic Affairs.[19] It would, however, allow an appeal upon the question whether there was any evidence upon which the Tribunal could have reached the decision which it did reach. In Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (NSW) (No.2)[20] the Full Court of the Federal Court held that in order to succeed, an appellant would have to show that there was no basis on which the Tribunal could reach the conclusion which it came to: see especially per Fisher J. [21]

23 The relevant principle with respect to inferences was articulated by Mildren J in Tracy Sports Village and Social Club v Walker:[22]

If there are no primary facts upon which a secondary fact could be inferred, and the secondary fact is crucial to the ultimate finding as to whether or not the case fell within the words of the statute, there is an error of law. If there are primary facts upon which a secondary fact might be inferred, there is no error of law. It is not sufficient that this Court would have drawn a different inference from those facts. The question is, whether there were facts upon which the inference might be drawn.[23]

24 The question of what was open to the Tribunal is thus to be decided on the basis of the evidence and inferences most favourable to the respondent.[24]

25 In my view the matters agitated by the applicants raise only two proper grounds of appeal, which can be summarily stated:

(a) The appeal judge erred in concluding that it was open to the Tribunal to draw the inference that the applicants:

(i) intended to stomach-tube the horse before the race;

(ii) conspired to stomach-tube the horse before the race;

(iii) attempted to stomach-tube the horse before the race.

(b) The appeal judge erred in concluding that the reasons provided by the Tribunal were adequate to explain the way it had taken into account the evidence of the two veterinarians.

26 These are the propositions inherent in grounds 3, 4, 5 and 6 argued before Kaye J.

27 They are also embodied in the proposed grounds of appeal to this Court 1 and 5. Moreover, as will be apparent below, the matters asserted in proposed grounds 2, 3, 4, 6 and 7 are in effect argumentative particulars of these fundamental grounds.

28 In assessing whether the Tribunal's conclusions were open to it this Court must bear in mind that it is plainly the intention of the Legislature that the Tribunal not this Court be the tribunal which determines the facts. In addition the Tribunal had the advantage of a view of the stables to assist it to understand the evidence and of seeing the witnesses give their evidence and be cross-examined before it. These matters must also encourage caution when assessing the question whether the Tribunal reached conclusions open to it.[25]

29 The first two grounds agitated before Kaye J alleged that the Tribunal erred in the manner in which it applied 'the Briginshaw standard of proof' to the drawing of inferences. Kaye J concluded that on a proper reading of the Tribunal's reasons this was not the fact and its conclusions were expressed by reference to the relevant standard. This conclusion is not challenged in the present application but, for the sake of completeness and because it informs consideration of the matters which are the subject of the application for leave to appeal, it is desirable to say something about the relevant concept.

30 In Briginshaw v Briginshaw[26] Dixon J stated:

Except upon criminal issues to be proved by the Prosecution, it is enough for the affirmative of an allegation to be made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[27]

31 At common law Briginshaw did not create a different standard of proof for serious allegations in civil cases:

The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found.' Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a find that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.[28]

32 These considerations are now reflected in s 140 of the Evidence Act 2008:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account -

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

(c) the gravity of the matters alleged.[29]

33 It should be noted however that although the Evidence Act applies to all proceedings in a Victorian court[30] the Dictionary to the Evidence Act relevantly defines 'Victorian court' to include persons or bodies required to apply the laws of evidence. The VCAT Act makes plain that the Tribunal is not bound by the rules of evidence:

The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.

(1) The Tribunal -

(a) is bound by the rules of natural justice;

(b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;

(c) may inform itself on any matter as it sees fit;

(d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

(2) Without limiting subsection (1)(b), the Tribunal may admit into evidence the contents of any document despite the non-compliance with any time limit or other requirement specified in the rules in relation to that document or service of it.

(3) Subject to this Act, the regulations and the rules, the Tribunal may regulate its own procedure.

(4) Subsection (1)(a) does not apply to the extent that this Act or an enabling enactment authorises, whether expressly or by implication, a departure from the rules of natural justice.[31]

34 It follows that s 140 did not apply to the proceedings before the Tribunal.

35 Further insofar as the applicants' case proceeds on the basis that the Tribunal was 'bound' by the principles stated in Briginshaw in the same way as a court would be this may be doubted.

36 Provided that the Tribunal acted fairly and on the basis of relevant evidence (ie evidence rationally affecting the assessment of the probabilities of the facts in issue), it could not be readily concluded that it acted contrary to the law.

37 This said, it was entirely proper for the Tribunal to take the approach that it did and require that it be 'comfortably satisfied' of the facts in issue. As the High Court made clear in Neat Holdings,[32] the relevant principle should be understood as reflecting 'a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct'. The approach that the Tribunal took was a rational and proper one in all the circumstances of the case. Further, it accorded with the approach accepted as proper before other tribunals in disciplinary proceedings not governed by the rules of evidence.[33]

38 In Greyhound Racing Authority v Bragg[34] Santow JA expressed in the following way the applicability of the Briginshaw concepts to the functions of a tribunal concerned with questions of the type in issue in this case:[35]

The notion of 'inexact proof, and indefinite testimony or indirect references [scil. inferences]' needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body.

39 This formulation captures the relevant sense in which the application of the principles stated by Dixon J in Briginshaw must be qualified in cases such as the present.

40 In the present case as I have said the Tribunal expressly directed itself to the need to be 'comfortably satisfied' of its conclusions concerning the matters in issue. The primary question before Kaye J was whether it was open to the Tribunal to be so satisfied. I shall approach the matters in issue on the same basis, although for like reasons to those explained by Phillips JA in S v Crimes Compensation Tribunal[36] it must always be borne in mind that ultimately on an appeal on questions of law the correct test is simply whether the Tribunal's findings were 'open':

The word 'reasonably' is used in this context, I suggest, just to emphasise that, when judging what was open and what was not open below, we are speaking of rational tribunals acting according to law, not irrational ones acting arbitrarily. The danger of using the word 'reasonably' lies in its being taken to suggest that a finding of fact may be overturned, on an appeal which is limited to a question of law, simply because that finding is regarded as 'unreasonable'. That is not the law as I understand it, at least in Australia. A finding of fact will be overturned on an appeal on a question of law only if that finding was not open.[37]

Was it open to the Tribunal to conclude adversely to the applicants in the absence of evidence of the presence of a prohibited substance intended to be administered to the horse?

41 Kaye J accepted that although the Tribunal found that there was time and opportunity for the applicants to stomach-tube the horse before the race in which it was entered, no finding was made that there was a suitable substance available which might be fed to the horse by way of the tube.[38] The respondent did not contend before the Tribunal that the Tribunal should conclude that it was intended to stomach-tube the horse with the sachet of saline drench powder contained in the chaff bag at the time the stomach-tubing apparatus was found. The evidence showed that sodium bicarbonate which potentially could have been used as a drench was located in a bag in the feed room of the stables adjacent to but outside the gate which the first applicant sought to lock. It is submitted that in the absence of evidence of the presence of a suitable substance in or near the relevant stall the Tribunal could not have been satisfied that there was an intention on the part of the applicants to stomach-tube the horse.

42 It must be noted first that proof of the offences in issue did not require proof of an intention to use a particular substance. As the respondent submits and the Tribunal accepted, Rule 64G creates an 'instrument only' offence. It was sufficient to prove conduct which 'could have led' to the horse being stomach-tubed or a conspiracy or attempt to stomach-tube.

43 The terms of Rule 64G are directed simply to the use of a prohibited procedure during the timeframe of 24 hours prior to the starting time of a race in which the horse is entered. There is an obvious policy reason for a rule in these simple terms. The sole purpose of use of a naso-gastric tube is to introduce some substance into a horse's stomach. It may well be that proof of the procedure or attempted procedure within the relevant 24 hour period is significantly easier than proof of the use or intended use of a prohibited substance. Moreover, theoretically at least, adoption of the procedure might affect the capacity to prove prior administration of a prohibited substance.

44 The respondent points to the fact that other rules relate to the administration of prohibited substances.[39] Even in the absence of these rules however there is no reason why the plain meaning of Rule 64G should not be given its effect.

45 Kaye J reasoned on the facts as follows:[40]

1. 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.
2. 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.
3. 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.

1. 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.
2. 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.
3. 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.
4. 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.

46 There is no error in these reasons. On the one hand, proof of the presence of a suitable substance ready for administration to the horse would have strengthened the prosecution case. Likewise proof of collateral circumstances showing the applicants' intent to make the horse run faster or slower would support the respondent's case. On the other hand, the absence of such proof did not prevent an inference being drawn that it was intended to stomach-tube the horse prior to the race when the whole of the circumstantial evidence was added together. It cannot be that proof of a circumstance not required by the offence must be necessary to proof of the offence itself.

47 In written submission counsel for the applicants put the matter this way:

There is no allegation, and no evidence, that the applicants brought to the horse's box any substance capable of being used for stomach tubing the horse other than the post-race drench, or that they intended to bring any other substance to the box. There is, therefore, no evidence of any capacity to stomach tube the horse with any substance, and consequently no evidence to justify an inference that the applicants intended to stomach tube the horse with any substance before the race.

48 I do not accept that the absence of proof of the presence of a suitable substance necessarily prevented the drawing of the relevant inference of intention. That inference remained open on the basis of the facts of which the Tribunal was positively satisfied.

49 Moreover as counsel for the respondent submitted Kaye J's approach to this issue proceeded on a factual assumption which was generous to the applicants. His Honour found that in the absence of any finding by the Tribunal that there was a substance available which might be fed to the horse through the naso-gastric tube, he was prepared to assume for the purposes of the appeal that at the relevant time there was in fact no substance available to the applicants to administer to the horse.[43] With respect, this overstated the position. As was implicit in his Honour's reasons, the absence of proof of the presence of a suitable substance did not establish the negative fact of such absence. The searches carried out at the time were cursory after the bag with the equipment was found. The Tribunal proceeded in its decision-making by reference to the matters of which it was positively satisfied. There was no

error in this. Either those matters provided a sufficient basis for the inferences drawn or they did not. In my view they did.

Was it open to the Tribunal to conclude adversely to the applicants in the face of veterinary evidence that stomach-tubing before the race would be reckless, dangerous and futile?

50 Likewise, the veterinary opinions that stomach-tubing with bicarbonate prior to the race would be risky did not displace the case against the applicants. The evidence was that administration of bicarbonate would be risky because it was not possible to satisfactorily predict what effect this would have on TCO2 when tested before or after the race. There would also be incidental risks of nose damage and even drowning.

51 Putting aside the evidence as to risk, the veterinary evidence as to context did not materially assist the applicants. It included evidence that:

• TCO2 is a measure of the total carbon dioxide released from plasma taken from a sample of blood and is a good indicator of whether or not the horse has been supplemented with a buffering agent;

• bicarbonate is an important indicator of likely TCO2 levels in competing racehorses. Bicarbonate, which is the predominate acid buffering compound in normal blood, contributes to TCO2. While there is no direct mathematical relationship between bicarbonate level and TCO2 there is a strong correlation between the two;

• it would take between five to 20 minutes to stomach-tube the horse with bicarbonate;[44]

• a practice or 'fashion' which had caused concern over the previous two years was the attempting to top-up bicarbonate levels in horses before races;

• some trainers had a view as to how bicarbonate could be administered to keep it under an acceptable level;

• there was anecdotal evidence of some trainers dosing horses with alkalinising or buffering agents close to racing;

• The effect on performance positive or negative of a given dose of bicarbonate cannot be predicted with accuracy;

• anecdotally, the amount of bicarbonate dose given close to a performance varied between 50 and 100 grams. Also anecdotally, a dose of bicarbonate of less than 50 grams was unlikely to be of any benefit.

52 The applicants were not veterinary practitioners and the notion that trainers acting as the applicants are alleged to have acted would necessarily act in accordance with veterinary opinion, seems to me to be entirely speculative. Put another way, human experience readily demonstrates that those engaged in training athletes and animals engaged in competitive races may act contrary to medical and veterinarian opinion from time to time.

53 In my view Kaye J was correct to conclude as follows:[45]

1. I do not accept the proposition that the conclusion by the Tribunal Member, as to the intention of the two plaintiffs to stomach-tube the horse, was contrary to the evidence of the two veterinary surgeons. The evidence of those two witnesses was relevant, and, as I have already indicated, it bore on an assessment of the probabilities as to whether the plaintiffs intended to stomach-tube the horse. However, that evidence was not, of itself, such as to logically preclude a conclusion by the Tribunal Member as to the existence of an intention by the plaintiffs to stomach-tube the horse.

54 Looked at in the broad, the evidence of the veterinary practitioners was of contextual but not direct or determinative significance.

Was it open to the Tribunal to conclude adversely to the applicants in the face of the applicants' evidence that it was intended to stomach-tube the horse after the race?

55 Next, it is submitted that because it was reasonably possible that the applicants intended to stomach-tube the horse after the race, the inferences drawn by the Tribunal were not open. Kaye J rightly rejected this submission also. The explanation offered for the presence of the naso-gastric tube in the horse's stall was a subsequent invention entirely inconsistent both with the explanation given at the time by the second applicant and the elaborate charade performed by him demonstrating that he had intended to get a bag containing a biscuit of hay. The Tribunal was not bound to regard the scenario postulated as probable. It may have been reasonable to stomach-tube the horse for the purposes of rehydration after the race but this possibility did not explain away the circumstances as the Tribunal found them.

Was it open to regard the actions of the second applicant as amounting to an attempt to breach Rule 64G(1)?

56 It was submitted before Kaye J that the actions of placing a bag containing two naso-gastric tubes, a funnel, a bucket and powder in the horse's box for the purpose of stomach-tubing could not be regarded as amounting to an attempt. In order to constitute an attempt the actions in issue must be more than preparatory in nature and be immediately and not merely remotely connected with the intended commission of the offence.[46]

1. The actions of the second plaintiff, which were alleged to have been an attempt to commit the offence of stomach-tubing the horse, were constituted by his taking the two naso-gastric tubes, and other equipment, in a bag to the horse's box, a short time before the horse was due on course, with the intention of stomach-tubing him with that equipment. At that time the second plaintiff was acting in combination with the first plaintiff, who was proceeding to lock the gate to the stables. The critical question is whether, in that context, the actions of the second plaintiff could reasonably be characterised as being more than merely preparatory to the commission of the offence of stomach-tubing the horse, and to be immediately and not remotely connected with the commission of that offence.

1. Ultimately, the question whether the actions of the second plaintiff went beyond mere preparation, and were sufficiently proximate to the commission of the completed offence, does involve an exercise of judgment by the Tribunal of fact. It follows that in forming that judgment, the Tribunal would only have made an error of law, if the conclusion reached by it was one not reasonably open on the evidence.
2. Bearing in mind those principles, I am not persuaded that the finding by the Tribunal Member, that the second plaintiff was guilty of attempting to stomach-tube the horse, was a finding which was not open to the Tribunal Member in the circumstances. Certainly, reasonable minds might respectively differ as to whether the actions of the second plaintiff were sufficient to be properly characterised as being so proximate to the commission of the offence as to constitute an attempt to commit it. However, it is not for this Court to substitute its own view for the conclusion reached by the Tribunal. On the Tribunal's findings of fact, the second plaintiff had brought the naso-gastric tubes to the horse's box, shortly before it was due on course, with the specific intention of stomach-tubing it. The first plaintiff was in the process of locking the stable gate, when the stewards intervened. Given those findings of fact, I am not persuaded that the Tribunal Member erred in law in reaching the conclusion that the second plaintiff's actions were sufficient to constitute an attempt to commit the offence of stomach-tubing the horse.

58 There was no error in this reasoning. Once the Tribunal made the finding which it did as to the second applicant's intention shortly before the horse was due on course then the actions undertaken were sufficiently proximate to the commission of the completed offence to amount to attempt.

Did the Tribunal give adequate reasons with respect to the veterinary evidence called on behalf of the applicants?

59 It was submitted to Kaye J that the Tribunal failed to give adequate reasons for 'dismissing' the evidence of the veterinary experts Drs Veenendaal and Faehrmann. There is nothing in this point, as his Honour found. Whilst the

evidence was contextually relevant it did not bear directly on the actions of the applicants. The Tribunal stated that it had read and considered the evidence of the two veterinary practitioners and had not 'disregarded the relevant parts of that evidence.' Kaye J was correct to conclude that he could not be satisfied that the Tribunal had failed to have regard to this aspect of the evidence. No further treatment of the evidence was logically necessary because the Tribunal's conclusions rested upon positive findings as to circumstances which sustained its conclusion independently of the veterinary evidence.

60 In my view leave to appeal should be refused. The decision of Kaye J is not attended by any material doubt.

61 I agree with Osborn JA that the application for leave to appeal should be dismissed for the reasons stated by his Honour.

[1] Prior to the hearing of the leave application the Court advised the parties that it would treat the hearing of the leave application as the hearing of the appeal and hear both together insofar as necessary.

[2] Section 148(1), Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act').

[4] Karakatsanis & Anor v Racing Victoria Limited [2013] VSC 434 ('Reasons'), [3]-[10].

[5] Reasons [16]-[26] (citations in original).

[6] [1938] HCA 34; (1938) 60 CLR 336 ('Briginshaw').

[7] [1997] 1 VR 127.

[8] [2006] VSCA 70; (2006) 15 VR 150.

[15] Second affidavit of Chris Stakis sworn 18 September 2013, [25].

[16] ISPT Pty Ltd v Melbourne City Council [2008] VSCA 180; (2008) 20 VR 447, 464-465[65]-[69].

[17] [1989] VicRp 18; [1989] VR 197.

[19] [1981] FCA 147; (1981) 4 ALD 198.

[20] [1980] FCA 96; (1980) 3 ALD 38.

[21] [1989] VicRp 18; [1989] VR 197, 199.

[22] [1992] NTSC 91; (1992) 111 FLR 32, 37-8.

[23] Emphasis in original. A passage approved by Phillips JA in S v Crimes Compensation Tribunal (1998) 1 VR 83, 91 and by Warren CJ (with whom Chernov JA and Bell AJA agreed) in Myers v Medical Practitioners Board [2007] VSCA 163; (2007) 18 VR 48, 60.

[24] ISPT Pty Ltd v Melbourne City Council [2008] VSCA 180; (2008) 20 VR 447, 464-5 [66]-[69].

[25] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 125-8 [23]-[29] (Gleeson CJ, Gummow and Kirby JJ).

[26] [1938] HCA 34; (1938) 60 CLR 336, 361.

[28] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 171 (Mason CJ, Brennan, Deane and Gaudron JJ).

[29] Evidence Act 2008 s 140.

[30] Evidence Act 2008 s 4.

[32] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170.

[33] See, eg, Australian Football League v Carlton Football Club Limited (1998) 2 VR 546 (Hayne JA, 569); Myers v Medical Practitioners Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 (Warren CJ, 63 [58]); Forster v Legal Services Board [2013] VSCA 73 (Kyrou AJA [179]).

[34] [2003] NSWCA 388.

[36] (1998) 1 VR 83.

[40] Reasons [67]-[69], [71]-[74] (citations in original).

[41] Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, 128; Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, 535 (Gibbs CJ, Mason J); Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 580-581 (Dawson J).

[42] Tripodi v The Queen [1961] HCA 22; (1961) 104 CLR 1, 7; Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87, 94-95.

[44] The second applicant conceded in cross-examination that the horse could have been stomach-tubed within 10 minutes.

[46] Haughton v Smith [1975] AC 476, 492 (Lord Hailsham); Director of Public Prosecutions v Stonehouse [1978] AC 55, 68 (Lord Diplock); R v Mai (1992) 26 NSWLR 371, 381-2 (Hunt CJ at CL); Park v The Queen [2010] NSWCCA 151; (2010) 202 A Crim R 133, 143 [46] (McClellan CJ at CL).