Lefoe v Thoroughbred Racing Northern Territory & Anor [2026] NTSC 13

Racing Act 1958 (Vic), s 58Q

Racing Appeals Tribunal Act 1983 (NSW), s 16

Racing and Betting Act 1983 (NT), s 145Z, s 145Z(1)

Racing and Wagering Act 2024 (NT), s 3, s 3(b), s 3(e), s 48, s 48(2)(e), s 48(2)(f), s 49(1), s 49(2)(a), s 51(1), s 53(1), s 53(2), s 86(1), s 86(3)(a), s 91, s 91(b), s 103(1), s 103(3)(b), s 103(1)(c), s 103(2), s 103(5), s 104(1), s 109(1), s 110, s 110(2), s 111, s 113(1), s 311(1), s 311(3), Part 3

Alcan (NT) Alumina v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27; Carr v Western Australia [2007] HCA 47, 232 CLR 138; Chief Executive Officer Department of Health v KMD [2024] NTCA 8; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors (2000) 203 CLR 194; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355; R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; Thompson v Goold & Co. [1910] UKHL 685; [1910] AC 409 at 420; Turner v NTA [2021] NTSC 55; Wilson v Anderson [2002] HCA 29; 213 CLR 401, referred to

Second Defendant: Solicitor for the Northern Territory

Lefoe v Thoroughbred Racing Northern Territory & Anor [2026] NTSC 13

[1] The plaintiff has commenced two proceedings in this Court seeking judicial review of decisions of the Racing Appeals Tribunal (the Tribunal). In proceedings 2024-03952-SC the plaintiff seeks an order pursuant to Order 56 of the Supreme Court Rules 1987 (NT) (SCR) in the nature of certiorari quashing a decision of the Tribunal made on 24 October 2024 finding that the plaintiff was guilty of the charge brought against him by the first defendant alleging a breach of the Australian Rules of Racing (ARR) and the consequential penalty imposed of a three month disqualification. The plaintiff also seeks orders that the matter be remitted to the Tribunal to be determined according to law and that the first defendant pay his costs of the proceeding.

[2] In proceeding 2024-00651-SC the plaintiff similarly seeks an order in the nature of certiorari regarding a decision of the Tribunal made on 8 January 2025 finding him guilty of a breach of the ARR and remitting the matter to the Tribunal to be determined according to law. The plaintiff also seeks an order that the first defendant pay his costs of the proceedings.

[3] The issues raised in each proceeding overlap significantly. For this reason, both proceedings were heard together.

[4] The common Grounds relied upon by the plaintiff in both proceedings are:

1. The Tribunal fell into jurisdictional error when it determined that the nature of appeals before the second defendant was unchanged by repeal of the Racing and Betting Act 1983 (NT) (RBA) upon the introduction of the Racing and Wagering Act 2024 (NT) (RWA).
2. The Tribunal fell into jurisdictional error by adopting the mandated procedure prescribed by s 145Z(1) of the RBA as to the limitations on evidence prima facie admissible on appeal which was applicable prior to 1 July 2024 as being applicable to appeals conducted after that date pursuant to the jurisdiction conferred upon the Tribunal by the RWA.

1. The Tribunal erred when it failed to correctly apply the law of statutory construction when it determined that the legislature in passing the RWA did not intend that appeals to the Tribunal were not intended to be heard by way of a new hearing and fresh evidence.

1. The Tribunal erred by failing to find that appeals heard after 1 July 2024 pursuant to the provisions of the RWA were to be heard de novo.

[5] In addition, in proceeding 2024-03952-SC the plaintiff relied upon a further ground:

1. The Tribunal, in breach of s 110(2) of the RWA, denied the plaintiff procedural fairness by admitting into evidence all of the evidence upon which the first defendant sought to rely in circumstances where the first defendant had not made any application that the evidence be tendered absolutely, or at all, and the effect of the Tribunal's decision was to deny the plaintiff the opportunity to cross-examine witnesses.

[6] The significant issue raised in these proceedings is the nature of an appeal to the Tribunal from a decision reached by a Stewards' inquiry. In particular, whether such an appeal is a rehearing or a hearing de novo.

[7] The first defendant is the race control body for thoroughbred racing in the Northern Territory. The powers of a race control body are set out in s 48 of the RWA. These powers include:

a) Supervising the activities of persons engaged in or associated with the racing for which the race control body is responsible: s 48(2)(e) RWA; and

b) imposing penalties and sanctions under the racing rules applicable to the racing for which the race control body is responsible: s 48(2)(f) RWA.

[8] The first defendant is required to establish or adopt the rules of thoroughbred racing: s 51(1) RWA. It has done so by adopting the Australian Rules of Racing (ARR) and making local rules known as the Northern Territory Local Rules of Racing (NTRR). The first defendant and the plaintiff are both required to comply with the ARR: s 53(1) and (2) RWA. The first defendant may delegate any of its powers and functions under the RWA to a member or official of the first defendant: s 49 (1) RWA. The first defendant cannot review or change a decision made by its delegate: s 49(2)(a) RWA.

[9] Under the ARR, the first defendant is the Principal Racing Authority (PRA) with control and supervision of thoroughbred racing in the Northern Territory: AR2 (within the ARR). The first defendant has the power to employ Stewards. The powers of Stewards are conferred by delegation of power from the first defendant: AR19. The functions of Stewards are those provided by the ARR and include conducting inquiries into allegations of breaches of the ARR and imposing penalties if breaches are established. It is unnecessary to consider these matters in any greater detail in these proceedings.

[10] The second defendant is the body constituted by the RWA to hear appeals under Part 3 of the RWA. Its functions are to hear appeals, to make determinations of fact in relation to those appeals and to carry out such other functions as are conferred on it by statute: s 91 RWA.

[11] The plaintiff is a licensed horse trainer. In 2024 he was the subject of two separate allegations that he had breached provision of the ARR. In each case, a Stewards' inquiry conducted on behalf of the first defendant found that the allegation was established and imposed penalties. In each case, the plaintiff appealed to the Tribunal against the finding that the breach was established and the penalty imposed. The Tribunal upheld the finding of the Stewards' inquiry but varied the penalties imposed. The Tribunal's decision regarding the first breach was made on 24 October 2024 (First Determination) and that regarding the second breach was made on 8 January 2025 (Second Determination) (in combination, the Determinations).

[12] In the present proceedings, the plaintiff seeks to have the Determinations quashed. Common to each proceeding is the submission that the Tribunal erred in law in construing the provisions of the RWA and consequently did not conduct the hearing of the plaintiff's appeals as required by the RWA. The plaintiff contends that the provisions of the RWA require such appeals to be conducted as a hearing de novo while the defendants contend that the appeal is by way of rehearing.

[13] A right of appeal from a decision by a Steward is provided by s 86(1) of the RWA. Ordinarily that appeal will be to the race control body (in this case, the first defendant) but where, as here, the penalty imposed is a disqualification or suspension for a period greater than three months the appeal lies to the Tribunal: s 86(3)(a) RWA.

[14] On receipt of a notice of appeal, the Secretary of the Tribunal must, inter alia, obtain a transcript or record of the evidence taken at the hearing in respect of the decision appealed against and serve a copy of it on the appellant: s 103(1)(c) RWA. Not later than seven days after receiving the transcript or record of evidence, the appellant must lodge with the Secretary written notice of the grounds of appeal, and, except by leave of the Tribunal, the appeal must be limited to those grounds: s 103(2) RWA. On receiving the written notice of grounds of appeal, the Secretary must forward a copy to the Chair of the Tribunal together with the transcript or record of the evidence: s 103(3)(b) RWA.

[15] The Chair of the Tribunal may determine the procedures for the hearing of appeals by the Tribunal: s 104(1) RWA. The parties to an appeal are entitled to appear and to be represented by a legal practitioner during appeal proceedings: s 109(1) RWA.

[16] Section 110 of the RWA is headed "Evidence" and provides:

(1) The Tribunal, including a panel of the Tribunal, is not bound by the rules of evidence and may inform itself of any matter in such manner as it thinks fit.

(2) Evidence is to be given orally at a hearing, unless the Tribunal or panel of the Tribunal otherwise directs.

[17] The Tribunal has the power, on the application of a party to proceedings or its own initiative, to issue a summons requiring a person to appear before the Tribunal to give evidence or produce evidentiary material: s 111 RWA.

[18] The orders that the Tribunal may make on the hearing of a proceeding are found in s 113(1) of the RWA:

(1) On the hearing of an appeal, the Tribunal or a panel of the Tribunal may, by order, do one or more of the following:

(a) adjourn the appeal;

(b) uphold, reverse or vary a decision appealed against;

(c) set aside, vary, suspend, decrease or increase a fine, penalty or other sanction imposed;

(d) refer the matter for rehearing to the steward, race club or race control body whose decision is the subject of the appeal;

(e) order that the whole or part of the appeal fee lodged under section 87(1) be refunded;

(f) make such order as to the costs of an appeal as it thinks fit;

(g) make such other order as it thinks fit.

[19] Prior to the commencement of the RWA, the legislation which governed, inter alia, thoroughbred racing in the Northern territory was the RBA. The RBA provided for appeals to a Racing Appeals Tribunal constituted under that enactment. Of relevance to the present proceedings is the former s 145Z, also headed "Evidence", which provided:

(1) Subject to this Part, on the hearing of an appeal the Tribunal shall not consider any other evidence, other than that adduced at the hearing in respect of the decision appealed against, unless satisfied that the evidence is relevant and that there is good reason why it was not adduced at that hearing.

(2) On the hearing of an appeal the Tribunal is not bound by the rules of evidence and may inform itself of any matter in in such manner as it thinks fit.

(3) Except with the leave of the Tribunal, evidence of the hearing of an appeal shall be given orally.

[20] The transitional provisions of the RWA provided that the Racing Appeals Tribunal established under the RBA continued as the Racing Appeals Tribunal established under the RWA: s 311(1) RWA. Any rules of procedure of the Racing Appeals Tribunal under the RBA continued in force as if made by the Racing Appeals Tribunal under the RWA: s 311(3) RWA.

[21] The First Determination is found in a written Determination dated 24 October 2024 published by the Chair of the Tribunal. After setting out particulars of the breach of the ARR alleged before the Stewards and the penalty imposed by the Stewards on finding the plaintiff guilty, the Determination records that the plaintiff specified his grounds of appeal to the Tribunal, as required by s 103(2) of the RWA, as:

• That the plaintiff was not guilty of the alleged breach.
• That the penalty was excessive.

[22] Prior to the hearing in the Tribunal, the lawyers appearing for the first defendant (as in the present proceedings, Thoroughbred Racing Northern Territory) submitted that the proposed grounds of appeal were "unsatisfactory" because they did not identify any errors arising from the Stewards' inquiry. The plaintiff sought leave to amend his grounds of appeal but proposed to do so in such a way that still amounted to an assertion that the Stewards should not, as a question of fact, have found him guilty of the breach.

[23] The Tribunal determined that the proposed amended grounds of appeal, as they related to the finding of guilt, did not amount to "proper appeal grounds" and offered the plaintiff an adjournment of the hearing to enable his lawyer to consider a further proposed amendment. The plaintiff declined that offer, with his lawyer stating that "if the Tribunal was of the view that the appeal grounds should point to an error of fact or law, he would not make further submissions in respect of the finding of guilt and did not propose to call [the plaintiff] to give evidence."

[24] In the First Determination, the Tribunal noted that the lawyer appearing for the plaintiff submitted that the appeal to the Tribunal should be conducted as a de novo appeal, with the relevant witnesses being called to give evidence to allow the Tribunal to make its own determination as to whether the breach had been proven. The lawyer representing the first defendant opposed that submission. The relevant portion of the First Determination on this issue is:

1. There is no evidence the legislator intended the Tribunal to hear appeals by way of a new hearing and fresh evidence (rather to allow the Tribunal to deal with evidence in a manner it sees fit).

[25] The First Determination then states that the parties were provided in advance of the appeal hearing with the evidence and materials to be considered at the hearing of the appeal.

[26] The Second Determination is found in a written Determination dated 8 January 2025. The plaintiff's appeal to the Tribunal on this occasion concerned only the penalty imposed on him by the Stewards for a breach of the prohibition imposed by the ARR on placing bets on Australian thoroughbred racing during a period of disqualification. The lawyer representing the plaintiff before the Tribunal again submitted that the appeal ought to be conducted as a hearing de novo. This submission was rejected by the Tribunal. In doing so, the Tribunal stated:

1. Having regard to the following factors:
   1. the absence of any specific provision in the Act concerning the nature of appeals to the Tribunal;
   2. the fact that there was a hearing before the Stewards and written reasons for the decision by the Stewards;
   3. section 113(1)(b) and (c) of the Act are expressed in terms that empower the Tribunal to vary (as well as uphold or reverse, set aside, etc) both the decision and the fine, penalty or other action appealed against;
   4. section 113(1)(d) of the Act enables the Tribunal to refer the matter for rehearing to the body whose decision is the subject of this appeal;
   5. the requirement in section 103(1)(c) of the Act for the Secretary of the Tribunal to obtain a transcript or record of the evidence taken at the Stewards hearing and serve it on the Appellant;
   6. the requirement in section 103(2) for the Appellant to lodge written grounds of appeal within 7 days of receipt of the transcript or record of evidence;
   7. the terms of section 110 of the Act, which provides that the Tribunal is not bound by the rules of evidence and may inform itself of any matter in such manner as it sees fit;

1. the Tribunal is not restricted to receiving oral evidence at a hearing, whether or not there is agreement between the parties; and
2. the Parliament did not intend that hearings before the Tribunal be hearings de novo, therefore the appeal and appeal process required that an error of fact or law in the decision being appealed against must be established in order for an Appeal to succeed.

The parties' submissions in the present proceedings

[27] The plaintiff submitted that the issue before the Tribunal in both proceedings was the proper interpretation of s 110 of the RWA. This, he submitted, mandated a consideration of the interrelationship between s 110(1) and s 110(2). The plaintiff submitted that the approach taken by the Tribunal "entirely ignored Parliament's mandatory statutory direction in s 110(2)" that evidence is to be given orally at a hearing unless the Tribunal otherwise directs.

[28] The plaintiff further submitted that by stating in the First Determination that there was "no evidence the legislator intended the Tribunal to hear appeals by way of a new hearing and fresh evidence" the Tribunal had "constructively read s 145Z(1)" of the RBA into the RWA. The plaintiff made the unremarkable submission that the RBA had been repealed and that s 145Z(1) of that enactment was irrelevant to the determination of an appeal under the RWA.

[29] The plaintiff submitted that the proper construction of s 110 of the RWA was that s 110(1) expresses a general rule which is subject to the specific rule s 110(2) as to the form of evidence to be adduced before the Tribunal. The plaintiff submitted that as the nature of appeals before the Tribunal is adversarial, it must follow that if the presumptive procedure for the adducing of evidence is that it is to be given orally, and procedural fairness requires that the appellant in such proceedings be given the opportunity to cross-examine the witnesses.

[30] The second defendant acknowledged that if the plaintiff is successful in either of his applications, and the relevant decision quashed, the plaintiff's appeal from the relevant Stewards' inquiry will be remitted to it for further hearing. The second defendant accordingly accepted that it should conduct itself in the present proceedings so as to avoid partiality, or the appearance of partiality, with regard to the merits of the allegations which were heard and determined by the respective Stewards' inquiries_: R v Australian Broadcasting Tribunal; ex parte Hardiman_.[1] The second defendant sought to assist the Court by advancing submissions on the proper construction of the appeal provisions of the RWA.

[31] The second defendant submitted that multiple, discrete considerations collectively compel the conclusion that appeals to the Tribunal are by way of rehearing and not de novo.

[32] The second defendant submitted in the decision of Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission & Ors,[2] the general taxonomy of appeals was expressed by Gleeson CJ, Gaudron and Hayne JJ at [12] to [14] (footnotes omitted):

It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense.... In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance.

If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.

Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance.

[33] The second defendant referred to eight textual considerations regarding the RWA pointing to the conclusion that appeals under that Act are by way of rehearing, rather than de novo.

[34] First, the statutory scheme regarding appeals under the RWA requires an appellant to formulate grounds of appeal. These grounds are to be specified by way of notice only after the appellate has received, and presumably considered, the transcript or record of evidence of the primary proceeding: s 103(1) and (2) RWA. The second defendant submitted that this indicates that the RWA contemplates an appellant reviewing the record of the proceedings at first instance and then articulating errors in grounds of appeal.

[35] Second, by operation of s 103(2), the appeal will be limited to the grounds of appeal lodged by the appellant unless leave is granted by the Tribunal to raise or rely upon different grounds. The second defendant submitted that limiting an appeal in this way is inconsistent with the notion of a hearing de novo, in which the review body considers the whole of the matter afresh.

[36] Third, s 103(2) requires the Secretary to the Tribunal to forward a copy of an appellant's grounds of appeal together with the transcript or record of the evidence taken at the hearing at first instance to the Chair of the Tribunal. The second defendant submitted that the apparent purpose of this procedure is to allow the members of the Tribunal to review the evidence which will formally be received at the hearing of the appeal. The second defendant further submitted that there would be no need for the transcript or record of the evidence to be forwarded to the Tribunal if the proceedings before the Tribunal were to be conducted as a hearing de novo.

[37] Fourth, and related to the previous consideration, the second defendant submitted that providing the Tribunal with copies of the transcript or other record of the evidence of the proceedings at first instance would run the risk of the proceedings before the Tribunal miscarrying through the reception of irrelevant and prejudicial material so as to give rise to an apprehension of bias if the proceedings before the Tribunal were required to be conducted as a hearing de novo.

[38] Fifth, the Tribunal may determine the appeal by referring the matter for rehearing to the original decision-maker: s 113(1)(d). The second defendant submitted that if the proceedings before the Tribunal was in the nature of a hearing de novo, there would be no need for the matter to be referred back to the original decision-maker for rehearing.

[39] Sixth, s 113(1)(b) provides that on the hearing of an appeal the Tribunal may uphold, reverse or vary the decision appealed against. The second defendant submitted that such language is indicative of an appeal by way of rehearing, without being conclusive: Chief Executive Officer Department of Health v KMD.[3] While the High Court overturned the substantive decision in that case, the majority specifically endorsed this aspect of the Court of Appeal's reasoning.

[40] Seventh, s 103(5) requires the Tribunal to commence hearing an appeal not later than 28 days after notice of the grounds of appeal is lodged. The second defendant submitted that the imposition of a tight deadline to commence hearing an appeal suggests that ordinarily the availability of witnesses will not impact on the hearing of an appeal.

[41] Eighth, s 91 provides that the Tribunal's functions include the hearing of appeals and making determinations of fact in relation to those appeals. The second defendant submitted that if appeals to the Tribunal were contemplated to the hearings de novo, these provisions would be otiose as it is an essential aspect of de novo hearings that the relevant decision-maker makes findings of fact.

[42] The second defendant accepted that it may be argued that the conferral of power on the Tribunal by s 111 of the RWA to issue a summons to require a person to attend to give evidence or produce evidentiary material in any hearing was an indicator that proceedings before the Tribunal were intended to be a hearing de novo. Similarly, the direction in s 110(2) requiring evidence to be given orally at a hearing of the Tribunal, unless the Tribunal otherwise directs, could be an indicator that hearings before the Tribunal are intended to be hearings de novo. The second defendant submitted that these are also consistent with a legislative intention that appeals to the Tribunal be by way of rehearing.

[43] The absence from the RWA of any provision in the precise form of s 145Z(1) of the RBA, the second defendant submitted, is not persuasive evidence that the legislature intended that appeals to the Tribunal under the RWA are to be by way of hearing de novo. The second defendant submitted that the drafters of the RWA may simply have considered such a provision to be unnecessary.

[44] The second defendant referred to extrinsic material, including the relevant Minister's second reading speech on the Bill which became the RWA and speeches of other Ministers in the parliamentary debate, as evidencing an intention that it was not intended in the RWA to change the nature of an appeal to the Tribunal from that which existed under the RBA. I found this material to be of little assistance and will not refer to it further. It was accepted by the second defendant that the explanatory statement to the Bill is also unhelpful in this regard.

[45] The second defendant also referred to the statutory history of the RBA and submitted that it was clear that the appeal to the Racing Appeals Tribunal under that Act was by way of rehearing. This was made clear by multiple provisions in the RBA. As such, the second defendant submitted to the extent that the plaintiff's current submission was confined to a comparison between s 145Z of the RBA and s 110 of the RWA, this ignored the statutory context of s 145Z.

[46] The first defendant adopted the submissions made by the second defendant but also made some additional submissions.

[47] The first defendant submitted that it would be strange for the legislature to have included in the functions of the Tribunal an obligation to determine facts if the legislative intention was that appeals were to be conducted as hearings de novo. It is inherent in the nature of an appeal de novo that the appeal body hears the case again and is obliged to make determinations of fact by the nature of the appeal. In such a case, it would be unnecessary for the RWA to include that function in s 91.

[48] The first defendant submitted, assuming appeals to it are to be heard by way of rehearing and given that the Tribunal has the discretion to receive fresh evidence and is subject to the implied application of common law principles of natural justice as a matter of presumed legislative intent (Saeed v Minister for Immigration and Citizenship;[4] Turner v NTA)[5], the provisions formerly contained in s 145Z(1) of the RBA were simply considered unnecessary.

[49] The first defendant submitted that the plaintiff had not sought leave to adduce fresh or further evidence in either proceeding before the Tribunal, contenting himself simply with making the submission that the appeal was by way of hearing de novo. In that case, the first defendant submitted, the Tribunal was right to proceed as it did.

[50] The plaintiff submitted that the second defendant's submissions regarding the interpretation of s 91 and s 110 of the RWA required words to be "read in" to the provisions. He submitted that this is not permitted where the words of the provisions were unambiguous and did not result in an absurd or irrational result: K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd;[6] Thompson v Goold & Co.[7]

[51] The plaintiff submitted that both the first and second defendants' submissions relied, either explicitly or implicitly, on the following matters as supporting a submission that the failure of the legislature to "reenact s 145Z" of the RBA in the RWA is of no consequence:

a) that a de novo hearing would render the evidence adduced before the Stewards prima facie inadmissible; and/or

b) the power conferred by s 113(1)(d) of the RWA on the second defendant to refer the matter back to the original decision-maker to rehear the matter is repugnant to the contention that an appeal is properly to be conducted as a de novo hearing; and/or

c) that the second defendant is not bound by the rules of evidence.

[52] The plaintiff submitted that in Victoria and New South Wales, appeals from decisions of the Stewards are conducted de novo, and in each jurisdiction the respective appeal tribunals have conferred upon them the power of remittal in essentially the same terms as found in s 113(1)(d) of the RWA. Further, the plaintiff submitted, the respective tribunals in those jurisdictions are not bound by the rules of evidence, similar to proceedings in the Tribunal in this Territory. The plaintiff submitted that in each of those jurisdictions, the entire evidence of the Stewards' inquiry giving rise to the decision the subject of the appeal is tendered into evidence at the commencement of the appeal. The plaintiff submitted that it would be open to the Tribunal by virtue of s 110 of the RWA to simply receive the evidence given at the Stewards' inquiry as evidence in the appeal.

[53] The plaintiff further submitted that pursuant to the provisions of s 91(b) of the RWA the Tribunal has an obligation to make determinations of fact in relation to all appeals which it hears. The plaintiff submitted that this provision would be "rendered otiose" if the submissions of the defendants regarding the nature of an appeal to the Tribunal were correct.

[54] Regarding the eight textual considerations advanced by the second defendant in support of its submission that the provisions of the RWA prescribe that appeals to the Tribunal are to be by way of rehearing, the plaintiff responded:

a) While accepting that "the principle of noscitur a sociis" (Literally, "a man is known by his companions", but used in the law to convey that the meaning of a word may be ascertained by referring to the meaning of the words associated with it: W. F. H. King, Classical and Foreign Quotations, London 1887) has been referred to in some cases, the notion of "textual" considerations is foreign to the law of statutory interpretation.

b) The first textual consideration advanced by the second defendant is "administrative/procedural" in nature.

c) The second is of the same nature. The plaintiff further submitted that the second defendant's submission ignores the fact that appeal grounds may be amended by leave of the Tribunal: s 103(2) RWA.

d) The third textual consideration advanced by the second defendant is also administrative/ procedural in nature. The legislative intent behind the provisions suggested by the second defendant are without foundation and should be rejected. The plaintiff submitted that the administrative/procedural purpose of providing the transcript of the Steward's proceeding to the Chair of the Tribunal is to enable it and the parties to prepare for and subsequently conduct the appeal as efficiently as possible.

e) The plaintiff submitted that the fourth textual consideration advanced by the second defendant is irrelevant. Similar issues may also arise where the trier of fact also decides the admissibility of evidence. Common law rules relating to recusal for actual or apprehended bias apply to the Tribunal.

f) The plaintiff submitted that the fourth textual consideration is intractably neutral.

g) The plaintiff submitted that the fifth textual consideration is also intractably neutral.

h) The seventh textual consideration advanced by the second defendant, the plaintiff submitted, is irrelevant to determining the nature of an appeal to the Tribunal.

1. The eighth textual consideration, the plaintiff submitted, is "insensible" (semble, non-sensical). The plaintiff submitted that the words of s. 91 (b) of the RWA are clear and ambiguous. The section does not include the words "once area is established, to make new or additional findings of fact" nor is any proper basis for reading in any or all those words.

[55] The purpose of statutory interpretation is to give meaning to the text of legislation. In interpreting a provision of an Act, a construction that promotes the purpose or object underlying the Act is to be preferred to a construction that does not promote that purpose or object: Interpretation Act 1978 (NT) s 62A. The purposes of the RWA are found in s 3 and, relevantly for present purposes, include establishing a fair and efficient system of governance over the racing industry and providing a fair and efficient mechanism for the resolution of complaints arising from racing or wagering: s 3(b) and (e).

[56] The text of a provision is always the starting point in any process of statutory interpretation: see Alcan (NT) Alumina v Commissioner of Territory Revenue.[8] In Project Blue Sky Inc v Australian Broadcasting Authority,[9] the majority of the High Court (McHugh, Gummow, Kirby and Hayne JJ) said, at [78]:

[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.

[57] As Gleeson CJ observed in Wilson v Anderson,[10] in statutory interpretation the concepts of meaning and intention are related, but distinct. His Honour went on to say, at [8]:

Parliament manifests its intention by the use of language, and it is by determining the meaning of that language, in accordance with principles of construction established by the common law and statute, that courts give effect to the legislative will. This is a familiar judicial exercise.

This is not to say that the exercise is formal and literalistic. On the contrary, common law and statutory principles of construction frequently demand consideration of background, purpose and object, surrounding circumstances, and other matters which may throw light on the meaning of unclear language.

[59] In interpreting a provision of an Act, it is important to consider the Act as a whole: Project Blue Sky at [69]. This reflects the modern approach to statutory interpretation which has moved from a focus on the text of a provision to consideration of the text in its context.

[60] Regard may be had to extrinsic material in interpreting a provision of an Act: s 62B Interpretation Act. The use of such material is restricted to the following purposes:

• to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act (s 62B(1)(a)); or
• to determine the meaning of the provision when the meaning is ambiguous or obscure, or the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable (s 62B(1)(b)).

[61] The legislative prescription that an interpretation of a provision which promotes the purpose or object of an Act over one which does not may be of little assistance where the provision under consideration seeks to strike a balance between competing interests: Carr v Western Australia.[11] In such a case, the inquiry must be: how has the legislature balanced those interests?

[62] In the present case, the provisions of the RWA governing appeals from Stewards' decisions to the Tribunal seek to strike a balance between the interests of the individual the subject of an allegation of wrongdoing and the broader interests of the racing industry and the public generally. The issue before the Court is how has the legislature struck that balance regarding appeals to the Tribunal: are they by way of rehearing or de novo hearing?

[63] No assistance in answering that question is derived by reference to the purposes set out in s 3 of the RWA, except to the limited extent that they refer to objects of "fairness" and "efficiency". These are objects expressed at a high level of generality that may pull in different directions regarding the intended nature of an appeal to the Tribunal. Similarly, no assistance is gained by reference to the explanatory memorandum for the Bill which became the RWA or the explanatory speech by the relevant Minister who introduced the Bill into the Legislative Assembly. The answer to the question of the nature of an appeal to the Tribunal must be found in the text of the RWA taking into account the context of the relevant provisions.

[64] An appeal by hearing de novo requires the appellate body to completely rehear the case which is the subject of the appeal. On the hearing of such an appeal, the parties are not restricted to leading the evidence which was before the body from which the appeal lies. The same evidence may be led, or completely different evidence may be led, or a combination of the two. The important feature of such an appeal is, however, that the evidence is adduced in the appeal.

[65] An appeal by way of rehearing, on the other hand, is conducted on the evidence adduced in the proceeding from which the appeal lies. In Fox v Percy,[12] a majority of the High Court (Gleeson CJ, Gummow and Kirby JJ) said, at [22], that in such an appeal the Court "proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits." (Emphasis added). Commonly, in such an appeal the appellate body is permitted to receive fresh or further evidence at its discretion. Where the appellate body does receive fresh or further evidence it is adduced in the hearing of the appeal before the appellate body.

[66] It is therefore clear that in both a de novo appeal and an appeal by way of rehearing, evidence either must (de novo) or may (rehearing) be received by the appellate body. It is against this background that the significance of the terms of s 110 of the RWA to determining the nature of appeals to the Tribunal must be assessed.

[67] The heading to s 110 is the single word "Evidence". I am permitted to take the heading to provisions into account for the purpose of interpretation of the provision: s 62B(2)(a) Interpretation Act. In my opinion, the legislative purpose of s 110 is to provide for how evidence is to be adduced in the proceedings before the Tribunal. This does not assist in determining whether an appeal to the Tribunal is a hearing de novo or a rehearing. The provision could apply in either case. Similar reasoning limits the usefulness in determining the nature of appeals to the Tribunal of the statement in s 91(b) of the RWA that a function of the Tribunal is to make determinations of fact in relation to appeals.

[68] I agree with the defendants that there are aspects of the statutory scheme applicable to appeals in the RWA which point clearly and irresistibly towards the finding that appeals to the Tribunal are by way of rehearing and are not de novo. Those aspects of the RWA are:

a) The obligation cast on appellants to formulate and plead grounds of appeal. This would be superfluous if the appeal was de novo. It would be absurd to think that the legislature contemplated that a single ground of appeal essentially asserting that the Stewards made the wrong decision at first instance would be required in a de novo appeal. By the act of commencing the appeal, an appellant is asserting that the Stewards made the wrong decision.

b) Similarly, the prescription that an appellant is limited to conducting the appeal on the grounds pleaded unless leave is granted by the Tribunal is inconsistent with a process in which the Tribunal considers the whole matter afresh.

c) The requirement for the Secretary to the Tribunal to provide the Chair of the Tribunal with an appellant's grounds of appeal and the transcript or record of the evidence taken at the first instance hearing also supports the defendants' position. If the appeal is de novo, and different evidence may be adduced on the appeal than was adduced at first instance, and the grounds of appeal may consist of nothing more than an assertion that the Stewards made the wrong decision, the requirement to provide this material would have little practical purpose.

d) The power vested in the Tribunal on the hearing of an appeal to refer the matter back to the original decision-maker for rehearing strongly supports the defendants' position. If the appeal to the Tribunal is de novo, there would be no purpose in vesting this power in the Tribunal. The Tribunal would simply hear the matter itself, and make a decision based on the evidence led before it.

e) Similarly, the power vested in the Tribunal on the hearing of an appeal to uphold, reverse or vary the decision appealed against is indicative of a legislative intention that the appeal be by way of rehearing.

[69] The plaintiff's reference to procedures followed in racing appeals in Victoria and New South Wales are beside the point. The legislation governing such appeals in those jurisdictions differs significantly from that governing appeals to the Tribunal in this Territory. Section 58Q of the Racing Act 1958 (Vic) specifically provides that the Victorian Racing Tribunal may conduct an appeal on the basis of a case stated by the parties, may conduct a rehearing of the matter by affidavit, statutory declaration or oral evidence, and is not required to conduct a hearing as a de novo hearing.

[70] Section 16 of the Racing Appeals Tribunal Act 1983 (NSW) specifically provides that an appeal to the New South Wales Racing Appeals Tribunal is to be by way of a new hearing and fresh evidence or evidence in addition to or in substitution for the evidence given in the proceedings below may be given on the appeal. It is a curious aspect of that Act that the New South Wales Racing Appeals Tribunal is vested with power to remit a matter to the original decision-maker. By itself, this is not significant in interpreting the relevant provisions of the RWA.

[71] In my opinion, comparisons between the provisions of the RWA and the former RBA are of little assistance in determining the nature of an appeal to the Tribunal under the RWA. Indeed, the only purpose of such a comparison seems to be to cast doubt upon the otherwise clear legislative intention found in the RWA that appeals to the Tribunal are to be by way of rehearing. This is not a purpose for which a court may have regard to extrinsic material for the purpose of interpreting a provision of an Act: see s 62B(1) Interpretation Act and [60] above.

[72] A determination that an appeal to the Tribunal under the RWA is by way of rehearing does not require reading words into either s 91 or s 110 of the RWA. Many statutory provisions only apply in particular circumstances and that is the case regarding these sections. Where an Act confers a power, the power may be exercised from time to time as occasion requires: s 41 Interpretation Act.

[73] There is nothing in the record of the hearings before the Tribunal to suggest that it read into the RWA the repealed s 145Z(1) of the RBA. On the contrary, the Tribunal formed a view, correctly in my opinion, that the provisions of the RWA led to a conclusion that the appeals were by way of rehearing.

[74] The above disposes of the common grounds of appeal in the two proceedings. Once it is accepted that the nature of an appeal to the Tribunal is by way of rehearing, the remaining ground of appeal in proceeding 2024-03952-SC falls away. In the course of the hearing of the appeal to which that proceeding relates, after the Tribunal heard argument on the nature of the appeal and effectively determined that it was a rehearing on the evidence before the Stewards, counsel for the plaintiff said to the Tribunal, "Can-so as I understand it, the determination of the Tribunal - so far, the determination of the Tribunal so far one, the evidence filed - sorry the evidence provided pursuant to s 103 to the Secretary is in evidence now at this appeal, that the first thing". The Chair replied "Correct".

[75] The response by the Chair was nothing more or less than an acknowledgement that the appeal as a rehearing was based upon the record of the proceedings before the Stewards. There was no application by the plaintiff to lead fresh or further evidence at the hearing of this appeal. There was no application by the plaintiff to have the complainant or anyone else called at the appeal for further cross-examination. It follows that there was no necessity for the first defendant to "tender" the record of the proceedings before the Steward and no requirement that the plaintiff be permitted to cross-examine those persons who gave or provided evidence at the Stewards' inquiry. The nature of the appeal requires the Tribunal to examine the record of the proceedings before the Tribunal. It follows that the provisions of s 110 of the RWA do not apply to the reception by the Tribunal of the record of the Stewards' inquiry.

[76] Evidence taken at the Stewards' inquiry and which forms part of the record of that inquiry will, of necessity, be put before the Tribunal in some form. It may be convenient to mark the record of the proceedings in the Stewards' inquiry as an exhibit in the appeal before the Tribunal. This does not constitute taking afresh the evidence given before the Stewards' inquiry. It is proof of the record of the inquiry.

[77] There is no merit in any of the grounds raised by the plaintiff in either application. In each of the Determinations, the Tribunal was obliged to proceed on the basis of the record of the relevant Stewards' inquiry. It did so. There was no application to lead fresh evidence. No error on the part of the Tribunal has been demonstrated. The applications are refused.

[78] Unless either party seeks different costs orders within 14 days of the publication of these orders and reasons, I order the plaintiff to pay the defendants' costs in each proceeding on the usual basis.

[1] (1980) 144 CLR 13

[2] (2000) 203 CLR 194

[3] [2024] NTCA 8 at [78]

[4] (2010) 241 CLR 252

[5] [2021] NTSC 55 at [25]

[6] [1985] HCA 48; (1985) 157 CLR 309 at [3]

[7] [1910] UKHL 685; [1910] AC 409 at 420

[8] [2009] HCA 41; 239 CLR 27 at [47]

[9] [1998] HCA 28; 194 CLR 355 (Project Blue Sky)

[10] [2002] HCA 29; 213 CLR 401

[11] [2007] HCA 47, 232 CLR 138

[12] [2003] HCA 22; (2003) 214 CLR 118