Matson v Racing Appeals Tribunal [2001] VSC 264

Supreme Court of Victoria|2001-08-09|Before: Gillard J

ADMINISTRATIVE LAW ACT 1978 - order for review - The Racing Appeals Tribunal - alleged errors of law - what constitutes the record - evidence on review - no jurisdictional errors of law demonstrated - no errors on the face of the record.

The applicant, Steven Raymond Matson ("Mr Matson"), is a horse trainer residing in Wallan.

The first respondent, the Racing Appeals Tribunal ("the Tribunal"), is the tribunal that made the decision, which is the subject of the order for review. The decision was made on 17 May 2001 by the Tribunal, which was constituted by Mrs J. Nicholson, then a barrister, now a County Court Judge, and Messrs B. Pearce and P. Walshe, who are persons experienced in the field of harness racing. In accordance with the normal practice, the Tribunal informed the Court that it would not appear on the hearing and that it would abide the decision.

The second respondent, the Stewards of the Harness Racing Board ("the Stewards"), are persons who perform a number of important functions in harness racing in Victoria, including investigating any alleged offence contrary to the Rules of Harness Racing Victoria, holding a hearing, making findings and imposing penalties.

Mr Matson is a horse trainer who trains horses for harness racing. He has been a trainer for some years. He has been involved in harness racing for over 15 years.

On 31 May 2000, he presented a horse for racing, called "Our Equal Opportunity", at Shepparton. A test examination was performed after the race, and revealed that the horse had a total bicarbonate level of 36.9 millimoles per litre of plasma.

On 3 September 2000, Mr Matson presented a horse called "Phanton Hawk" at Kilmore, and the test examination on that occasion showed that the horse had a bicarbonate level of 37.9 millimoles per litre of plasma.

The Harness Racing Board was established by s.39 of the Racing Act 1958 ("the Racing Act"), and is a body corporate. It is empowered by s.49 to make rules. It has made rules. They are called Rules of Harness Racing Victoria.

190. (1) A horse shall be presented for a race free of prohibited substances.

(2) If a horse is presented for a race otherwise than in accordance with sub-rule (1) the trainer of the horse is guilty of an offence.

(4) An offence under sub-rule (2) or sub-rule (3) is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse."

By reason of Rule 188A(1b), "alkalinising agents" are prohibited substances.

However, a certain level of alkalinising agents is permitted in a horse. This is made clear by the provisions of Rule 188A(2), which provides -

"(2) The following substances when present below the levels set out are excepted from the provisions of sub-rule (1):

(a) total carbon dioxide (TCO2) at a level of 35.0 millimoles per litre in plasma."

The testing of the two horses presented by Mr Matson, revealed an excess of 1.9 millimoles per litre and 2.9 millimoles per litre, respectively.

On 20 September 2000, the Stewards held an inquiry into the elevated TCO2 level returned by the horse "Our Equal Opportunity".

The inquiry continued on 30 October 2000, 6 February 2001, 23 February 2001, and 13 March 2001.

On 20 September 2000, the Stewards held another inquiry, this time into the elevated TCO2 level returned by the horse "Phantom Hawk". It continued on 13 March 2001.

On 13 March 2001, the Stewards charged Mr Matson with two breaches of Rule 190 in respect of the presentation of the horses "Our Equal Opportunity" and "Phantom Hawk". Mr Matson pleaded not guilty to both charges. After hearing further evidence and submissions, the Stewards found Mr Matson guilty of both charges. After hearing submissions on penalty, he was disqualified from holding a licence for a period of four years in respect of the charge concerning "Our Equal Opportunity" and was disqualified from holding a licence in respect of the charge concerning "Phantom Hawk" for a period of five years, to be served concurrently with the four years in respect of the charge involving "Our Equal Opportunity".

Mr Matson exercised his right of appeal to the Tribunal.

Mr Matson had a right to appeal to the Tribunal pursuant to s.83K(2) of the Racing Act.

By reason of s.83L of the Act, the Tribunal must be constituted by a chairman or deputy chairman and two advisers. In this case, Mrs J. Nicholson presided at the hearing. She is a deputy chairman. Under s.83L(2), she was required to decide all questions of law and fact. She also was to make all decisions and orders. The advisers to the Tribunal, under sub-s.(4), were permitted to advise the deputy chairman on any matter other than a question of law, and could assist the deputy chairman, in any way required, in performing the functions of the Tribunal. However, they were not permitted to participate in making any decision or order. The appeal to the Tribunal was by way of re-hearing, pursuant to s.83M(2b). The Tribunal can direct that it not be by way of re-hearing, but no direction was given in the present appeal.

On the appeal, the Tribunal, under s.83K(9), was empowered to "affirm vary or quash the penalty decision or order appealed against and may make or substitute any penalty decision or order which the ... Stewards ... would have been empowered to make."

The appeal came on for hearing on 16 May 2001. By this time, there had been an amendment to Rule 188A(2a) of the Rules. The former Rules permitted a TCO2 level of 35.0 millimoles per litre in plasma. The amendment increased the level to 36.0 millimoles per litre of plasma. The Rule was in fact changed on 1 May 2001.

It has been accepted, by the controlling body and others in authority in harness racing, that there must be an allowance of plus or minus 1.4 millimoles per litre due to uncertainty in the testing procedures.

At the Tribunal, Mr Matson pleaded guilty to both charges. As I have stated, the appeal was a re-hearing. At the time when Mr Matson presented "Our Equal Opportunity", the permitted level was 35 plus or minus 1.4 millimoles per litre of plasma. He was guilty of the charge but, because of the change to the Rules, it was thought appropriate that he should be convicted of the charge with no penalty imposed. Under the new regime, the permitted level would be 36 plus 1.4, giving a total of 37.4 millimoles per litre. The horse was presented with a reading of 36.9 millimoles per litre.

However, in relation to the second charge, he was convicted, the appeal was allowed, his licence was cancelled, and he was disqualified for a period of three years. The Stewards' disqualification was reduced by two years.

The hearing took place on 16 May, and the Tribunal delivered its reasons the following day, on 17 May 2001. If one was to take into account the changed level which was permitted, by reason of amendment to Rule 188A, the difference between the permitted and the prohibited level was .5 millimoles per litre of plasma.

Mr Matson was represented by a very experienced member of the Victorian Bar, Mr Brian Bourke.

Due to the change in the plea, the hearing was relatively short. Certain documentary evidence was tendered in evidence, being the laboratory certificates concerning the test investigations; the transcripts of the Stewards' inquiries, which ran over some 580 pages; and a list of prior offences committed by Mr Matson, which covered a period from 13 March 1984 through to 15 May 2000, over four pages. The list demonstrated what could only be described as an appalling record. It will be necessary to refer to the record hereafter. A photocopy of important notices that appeared in the "Harness Racer" were also tendered into evidence, which drew attention to the inadvisability of using certain types of feeds which may elevate the TCO2 reading.

The transcript of the evidence before the Stewards was tendered as evidence of the facts, without objection. This was in accordance with the usual practice to reduce hearing time and avoid expense and inconvenience. The thrust of Mr Matson's case before the Stewards was that he had presented the horses ignorant of their bicarbonate levels, and that he had fed the horses with food additives that are advertised in the official publication of harness racing. He stated that he was not aware that the additives also raised the bicarbonate level in a horse. He was following what other trainers were doing. It is a fact that bicarbonate occurs naturally in horses, and the levels may vary according to a variety of factors, including diet, training, season and pre-race transport and excitement.

Counsel for the Stewards, in a pithy submission, brought together the matters which were clearly established at the Stewards' inquiry. He said - " ... He is not a babe in the wood when it comes to TCO2, he's feeding substances to his horses in the lead up to race day and on race day which he doesn't know what they contain, he's doing it on the recommendation of a group of people who apparently have developed a feed regime which he seems to think leads to success. By September 2000 he knows that two of those people have got positives for TCO2 and have been the subject, in both cases, of Stewards' inquiries."

Mr Matson was challenged to give evidence before the Tribunal, but he did not do so.

Mr Bourke made submissions to the Tribunal. He placed some character references before the Tribunal. Mr Bourke called a character witness.

The hearing was completed on 16 May 2001, and on the following day, Mrs Nicholson delivered her reasons.

In the course of the hearing, Mr Bourke accepted that a period of disqualification would be the appropriate penalty.

"Mr Bourke, on Mr Matson's behalf, at no stage urged the Tribunal in fact to look at anything other than, and the Tribunal recalls his words, of an outcome, other than a disqualification or suspension."

Mr Matson was dissatisfied with the decision of the Tribunal and made application to this Court under s.3 of the Act.

The application came on before a Master of the Court, who, on 6 July 2001, made an order for review, calling upon the Tribunal to show cause why the decision should not be reviewed.

Section 5(3) requires the order for review to state the grounds upon which it is sought to review the decision. Accordingly, the order stated the following grounds -

(ii) The Tribunal took into account an irrelevant consideration in the imposition of the penalty, namely that the offence related to the use of a prohibited substance;

(iii) The Tribunal erred in finding that a prohibited substance had been administered;

(iv) The Tribunal erred in finding that disqualification had to be such as to reflect personal deterrence or general deterrence;

(v) The Tribunal failed to take into account that the offending against the rule was inadvertent."

The Master also ordered a stay of the decision and by order dated 13 July 2001, I set aside the stay on an appeal by the Stewards.

Jurisdiction Under the Act

The Act was passed in 1978. It gave a right to certain persons, affected by a decision made by a tribunal, to apply for an order for review. The terms "decision", "person affected", and "tribunal" were all defined by s.2 of the Act.

An important feature of the Act was the statutory requirement found in s.8, that a tribunal must, if requested to do so by any person affected by a decision, furnish a statement of its reasons for the decision. Power was given to this Court to order the Tribunal to furnish reasons or adequate reasons.

Section 10 provided that the reasons were to be part of the record. This provision was obviously intended to either change or clarify the common law, with respect to the record, when an application was made for a prerogative writ of certiorari, on the ground that there was an error of law on the face of the record. At common law, the record was normally confined to the pleadings and the order made. There was some controversy whether the record included reasons, but it is now clear that it does. This is the accepted position in this State. See Gabriel Kuek v Victoria Legal Aid and Anor (2001) VSCA 80 at para 15, per Phillips JA.

The power of the Court, on the return of the order for review, is set out in s.7 and provides, inter alia -

"The Court may discharge the order or may exercise all or any of the jurisdiction or powers and grant all or any of the remedies which upon the material adduced and upon the grounds stated in the order might be exercised or granted in proceedings for relief or remedy in the nature of certiorari, mandamus, prohibition or quo warranto or in proceedings for a declaration of invalidity in respect of the decision or for an injunction to restrain the implementation thereof and may extend the period limited by statute for the making of the decision but shall not exercise any other jurisdiction or power or grant any other remedy."

The nature of the jurisdiction of this Court under the Act was considered by the Full Court in Monash University v Berg and Ors [1984] VicRp 30; (1984) VR 383.

There is no doubt that it was the object of the Act to overcome some of the technical aspects of the prerogative writ jurisdiction of the Court, but it is clear that the Act did not alter the jurisdiction which the Court has, at common law, to supervise the decision making process of an inferior court or administrative body. The Act does not apply to a court of law or a tribunal presided over by a Judge of the Supreme Court. The restrictive nature of the judicial review common law supervisory jurisdiction of the Court applies to an order for review under the Act.

The proceeding before the Court is pursuant to the Act.

It is not an application for judicial review pursuant to Order 56 of the Rules of Court. Nevertheless, it is the same common law supervisory jurisdiction the Court has in respect of inferior courts and tribunals, and bodies exercising public authority and duties. The jurisdiction is limited.

The Act has effected a number of changes to the law. It changed the law in four ways.

First, it set up a procedure for review designed to eliminate the complexities involved in applications for the grant of prerogative writs and similar remedies, see s.7; it liberalised the principles concerning locus standi, see s.11; thirdly, it required the body in question to give reasons for the decision which would be incorporated into the record, see ss.8 and 10; and finally, it eliminated the effects of privative provisions in any statute designed to exclude the jurisdiction of this Court, see s.12.

See Monash University v Berg [1984] VicRp 30; (1984) VR 383 at 388, and Masters v McCubbery [1995] VICSC 209; (1996) 1 VR 635 at 640 and 653.

Save for those changes, the Act did not change the common law supervisory jurisdiction of this Court to control inferior courts and tribunals in a supervisory capacity. Those controls are maintained by ensuring that the inferior body is kept within jurisdiction and that in performing the jurisdiction, it observes the law.

The most important change concerned the obligation of an inferior body, if requested to do so, to furnish a statement of its reasons for the decision. The obligation could be enforced by an order of this Court. See s.8.

At common law, the general rule was that an inferior body was not required to give reasons. See R v Gaming Board for Great Britain, ex parte Benaim and Khaida [1970] EWCA Civ 7; (1970) 2 QB 417 and Public Service Board of New South Walves v Osmond (1986) 159 CLR 656. Section 8 puts beyond doubt the obligation, where the Act applies, on a tribunal giving a statement of reasons. But more importantly, s.10 makes the reasons parts of the record. The section provides -

Any statement by a tribunal or inferior court, whether made orally or in writing, and whether or not made pursuant to a request or order under s.8, of its reasons for a decision shall be taken to form part of the decision and accordingly to be incorporated into the record."

At common law, the record comprised the initiating document, the pleadings, if any, and the record of the decision. It did not include the reasons. Nor does the record include the transcript, the exhibits or any submissions made. See R v Northumberland Compensation Appeal Tribunal, ex parte Shaw [1951] EWCA Civ 1; (1952) 1 KB 338 at 352 where Denning LJ said -

"Following these cases, I think the record must contain at least the document which initiates the proceeding; the pleadings, if any; and the adjudication; but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. If the tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash the decision."

See also Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 180-183.

Subject to the changes, the Court is exercising its common law supervisory jurisdiction, which is limited. This is made clear by the provisions of s.7 of the Act which deal with the powers of the Court and which confine the powers to remedies or relief "in the nature of certiorari, mandamus, prohibition or quo waranto or in proceedings for a declaration of invalidity in respect of the decision or for an injunction", but more importantly, the closing words of s.7 demonstrate that the jurisdiction has not been changed. The concluding words of s.7 provide -

" ... but shall not exercise any other jurisdiction or power or grant any other remedy."

The jurisdiction to review concerns a decision, operating in law to determine a question affecting the rights of any person et cetera, made by a tribunal (which is not a court of law or a tribunal presided over by a Judge of the Supreme Court) which, in arriving at the decision in question, is required to act in a judicial manner "to the extent of observing one or more of the rules of natural justice". See s.2.

There is no doubt that the Act applied to the decision made by the Tribunal in the present matter.

Mr Matson seeks an order that the decision disqualifying him for a period of three years be quashed. In seeking the order, he is seeking an order in the nature of certiorari. In seeking the relief, pursuant to the Act, he is invoking the common law jurisdiction of this Court to ensure that an inferior body acts within jurisdiction and in accordance with the law.

The jurisdiction is an ancient one and is limited. See the Northumberland Compensation case, supra, at pp.346-354.

The Tribunal is a creature of statute. Its powers and obligations are found in the Racing Act.

The appeal is by way of re-hearing and more importantly, the decision is final and there is no avenue of appeal from it. This is made clear by s.83L(10) which provides -

"The determination of the tribunal and any penalty decision or order arising therefrom shall be binding upon the appellant, the steward or Stewards and the appropriate controlling body."

The chairman or deputy chairman who presides at the hearing is a lawyer and, more often than not, a present or retired County Court Judge. The presiding person decides all questions of law and fact and makes all decisions and orders, including the fixing of a penalty. See s.83L(1) and (2).

In those circumstances, there is a fairly strong argument that this Court should not be interfering with what is an exercise of a discretion entrusted by the Legislature to the Tribunal.

Denning LJ, in the Northumberland Compensation case, supra, stated the rationale for the Court's intervention at p.346 -

"There is a formidable argument against any intervention on the part of the King's Bench at all. The statutory tribunals, like this one here, are often made the judges both of fact and law, with no appeal to the High Court. If, then, the King's Bench should interfere when a tribunal makes a mistake of law, the King's Bench may well be said to be exceeding its own jurisdiction. It would be usurping to itself an appellate jurisdiction which has not been given to it. The answer to this argument, however, is that the Court of King's Bench has an inherent jurisdiction to control all inferior tribunals, not in an appellate capacity, but in a supervisory capacity. This control extends not only to seeing that the inferior tribunals keep within their jurisdiction, but also to seeing that they observe the law. ... The King's Bench does not substitute its own views for those of the tribunal, as a Court of Appeal would do." (Emphases added).

As the Tribunal is a statutory body exercising powers, including the infliction of substantial penalties, and is presided over by a lawyer who is empowered by statute to make binding decisions of law and fact, the principles of judicial review concerning inferior courts, in my opinion, apply. The Tribunal has all the trappings of a court and, in particular, the jurisdiction to decide questions of law as well as fact.

The jurisdiction to decide questions of law supports the view that the Tribunal is analogous to a court. See Craig's case, supra, at pp.176-7 and 179-80.

A distinction is drawn between bodies, other than courts and inferior courts, when considering what constitutes jurisdictional error - see Craig's case, supra, at pp.179-80.

In R.S.L. v Liquor Licensing Commission [1999] VSCA 37; (1999) 2 VR 203, Phillips JA was of the view that rather than drawing a distinction between bodies and courts, the important question is to determine which jurisdiction is conferred upon it. Whatever the body is, its decision can only be attacked if there is jurisdictional error or error on the face of the record. To determine jurisdictional error, it is important to ascertain the nature and extent of the jurisdiction.

His Honour summarised the position when he said at p.215 -

"Accordingly, in a case like the present the essential search must be for the task which is confided to the body whose decisions are under attack; for only if that body strays beyond that task will there be a want or excess of jurisdiction."

I respectfully agree. The Tribunal has the jurisdiction to hear the appeal and decide questions of law and fact. Has it strayed beyond its jurisdiction?

But whether the decision is made by a body exercising legal authority or an inferior court, the jurisdiction is limited.

The jurisdiction is supervisory and does not entitle this Court to canvass matters that it would on an appeal. In a judicial review, the Court is exercising its common law jurisdiction. The jurisdiction is different to an appeal.

The judicial review procedure is concerned with the legality of what was done by the Court or Tribunal, and is not concerned with the merits of the decision under review. This is to be contrasted with an appeal, where the question usually is whether the decision is right or wrong, whereas the question on a judicial review is whether the decision is in accordance with the law.

Judicial review is not concerned with whether the decision was fair or correct.

The scope of the jurisdiction was recently discussed by the High Court in Craig's case, supra, at pp.175-76. In a joint judgment, the Court said -

"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal, or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of an impugned order or decision upon one or more of a number of distinct established grounds: most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, or fraud, and error of law on the face of the record. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to 'the record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record." (Emphasis added).

In Chief Constable of North Wales Police v Evans [1982] UKHL 10; (1982) 1 WLR 1155, Lord Brightman, at p.1173, said -

"Judicial review is concerned, not with the decision, but with the decision making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."

In R v District Court; ex parte White [1966] HCA 69; (1966) 116 CLR 644, Windeyer J said, at p.655 -

"We do not sit in this court to weigh the evidence and decide whether or not the applicant should be exempt from military service. That decision has been committed by Parliament to a magistrate, with an appeal to a court of review constituted by a District Court or Supreme Court Judge. The court of review has given its decision. Parliament has said that its decision is 'final and conclusive'. It is not for us to say whether it was right or wrong. Nevertheless the applicant is seeking to bring the case before us, alleging an error of law which it is claimed entitles him to an order either for certiorari or prohibition ... I am not disposed to a narrow view of the scope of either certiorari or prohibition or of the power of this court to use these writs and also mandamus to ensure that administrative tribunals exercising functions under Commonwealth law proceed according to law and keep within the law. But we must not use these writs to give an appeal on the facts." (Emphasis added).

See also the Northumberland Compensation case, supra, at p.357.

The High Court in Craig's case, supra, at p.176, identified the most important established grounds, namely, jurisdictional error, failing to observe some applicable requirement of procedural fairness, fraud and error of law on the face of the record.

This Court is not concerned to examine whether in fact the Tribunal made the right decision, or whether it misapplied some principle of law, but is concerned to ensure that it acted within jurisdiction and that in performing its decision-making process, it complied with the law.

The limited nature of the jurisdiction was stated by the High Court in Craig's case, supra, at pp.176 et seq, where the Court drew a distinction between administrative tribunals and inferior courts. After giving examples of jurisdictional error in an administrative tribunal, the Court said, at pp.179-180 -

"In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available, and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely on determining such a question will not ordinarily involve jurisdictional error." (Emphases added).

It is to be observed that the High Court was guarded in stating the principles as general propositions. However, the observations are indeed compelling in a review such as the present. The rationale for the supervisory jurisdiction is that inferior courts must, in exercising their decision-making process, act within jurisdiction and in accordance with the law and principles of procedural fairness.

This Tribunal has the authority to decide questions of law.

The attack on the Tribunal is that it made a number of errors of law. Clearly, the Tribunal was exercising the statutory jurisdiction in hearing and determining the appeal, and accordingly, the attack must be confined to an error of law in the exercise of the jurisdiction. This is indeed a difficult task. The attack may also be made in respect of an error on the face of the record.

But what constitutes the record for this purpose?

The record comprises the documents initiating the appeal, the reasons of the Tribunal and the record evidencing the outcome of the appeal. The record does not include the evidence given before the Stewards, any other exhibits adduced into evidence before the Tribunal, or the submissions of Counsel on the review, unless the reasons incorporate other documents.

The Court is restricted to the record, and the decision will only be quashed if it is affected by an error of law which is disclosed by that record.

A record may be expanded to include the transcript of the proceedings if, in fact, it is incorporated into the record by reference. See Craig's case, supra, at pp.181-2. But as the High Court pointed out, a mere passing or incidental reference to the transcript does not produce that consequence. The High Court, at p.182, stated -

"The qualification should be understood as referring only to so much of the reasons or transcript of proceedings as is referred to in the formal order in a way which brings about its incorporation as an integral part of that order and 'the record'. If, for example, the formal order incorporates undertakings given by a party 'as set out in' a particular designated document or is said to be made 'in terms of proposed orders set out in the reasons for judgment', the order in the record will incorporate only those parts of the particular document or the reasons for judgment which set out, qualify or otherwise affect the content of those undertakings or proposed orders. Conversely, a merely introductory or incidental reference will not suffice to incorporate ... reasons given for making the formal order which do not in fact constitute part of it." (Emphases added).

But as the Court went on to say, the determination of what constitutes the record "is ultimately a matter for the Court hearing the application".

Where the attack is made on grounds other than an error on the face of the record, then the Court can take into account any relevant material placed before it, subject, of course, to rules of procedure and evidence.

As the statement by the High Court set out above clearly demonstrates, where the allegation is that there has been a jurisdictional error, in a case where in fact the Court had jurisdiction and was exercising it, it is a difficult task to establish that there was jurisdictional error, even though an error is established in the course of the Court exercising the jurisdiction.

Ordinarily, an inferior court has jurisdiction to decide questions of law as well as questions of fact, and if it makes an error in the course of exercising the jurisdiction, it has made an error in matters which it has jurisdiction to determine. It is only where it makes an error with respect to that jurisdiction, that the Court can intervene.

In Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 74 ALJR 1348, Gleeson CJ, Gaudron and Hayne JJ said, at p.1356 -

"To misconceive the role of the Commission under s.170MW of the Act ... does not constitute jurisdictional error on the part of the Full Bench. There would only have been jurisdictional error on the part of the Full Bench if it had misconceived its role or if, in terms used by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council, it 'misunderstood the nature of its jurisdiction' ... or 'misconceived its duty' or 'failed to apply itself to the question which the section of the Act prescribes' ... or 'misunderstood the nature of the opinion which it was to form'. The Full Bench did none of those things." (Emphases added).

In R.S.L. v Liquor Licensing Commission, supra, Phillips JA, at pp.210-211, discussed the nature of jurisdictional error and, after noting that most inferior courts are entrusted by Parliament to decide questions of law, said -

"And so in deciding, even if it goes wrong, it does not stray outside its jurisdiction. If erroneous, its decision may well be open to appeal, but it will not be subject to prerogative relief for want or excess of jurisdiction (even if amenable to such relief if error of law is disclosed on the face of a record)." (Emphasis added).

In Craig's case, supra, at p.177, the High Court defined some examples of jurisdictional error when it said -

"An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or a disregard of the nature or limits of jurisdiction. Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. ... Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. ... Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that the particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern."

Mr Matson has the burden of persuading this Court that the Tribunal made a jurisdictional error or that there was an error on the face of the record. Not an easy task when the Tribunal is exercising the very jurisdiction given to it by statute.

The arguments of Counsel at this hearing ranged over the transcript of the hearings before the Stewards, the exhibits tendered before the Tribunal, the submissions of Counsel and also additional affidavit material, which was tendered subject to objection. But whether all the material is relevant and admissible will depend upon the nature of the attack upon the decision.

During the hearing, Counsel referred to the hearings before the Stewards, evidence tendered before the Tribunal, submissions of Counsel to the Tribunal and also evidence tendered, subject to objection, at this hearing. What evidence may be considered will depend upon the nature of the attack on the decision. The evidence is limited to the record when the attack is an error on the face of the record.

The record, in my opinion, is confined to the initiating process which enlivened the appeal jurisdiction, the reasons given by the Tribunal for its decision, and the record of its decision. The record may be expanded if any document, including a transcript, is incorporated by reference in the record itself.

Incorporation is confined to so much of a document which is referred to in the record in a way "which brings about its incorporation as an integral part of ... the record" - see Craig's case, supra, at p.182.

But then, only so much as is, in fact, incorporated. A mere introductory or incidental reference will not suffice.

Even though the Court hearing the matter will decide what constitutes the record, the High Court has signalled, in Craig's case, a strict approach to the question - see supra at p.183.

The reason is obvious. The jurisdiction is limited. It is not an appeal. It cannot be emphasised enough that the Legislature established the Tribunal, and its powers and duties. It did not make any provision for an appeal. This Court's ancient jurisdiction is purely supervisory.

I have carefully considered the reasons of the Tribunal, and I am satisfied that there was no incorporation of any other document.

There were three references in the reasons to other documents. The first referred to a number of documents tendered by Mr Bourke, and the Tribunal observed -

"The Tribunal will not go through all of those. You are well aware of what they are and they form part of Exhibit A."

In my opinion, that did not constitute an incorporation of all those documents, forming part of Exhibit A, into the record. The reference is no more than that, namely, a reference and not an incorporation.

Later in the reasons, the Tribunal referred to a penalty schedule which formed Exhibit 6. Again, the reference did not incorporate the penalty schedule into the record.

Finally, reference was made, in passing, to the transcript of the hearing. Again, in my opinion, the reference did not incorporate the transcript.

Counsel for Mr Matson sought to tender an affidavit by Professor Francis Clarke of the Department of Veterinary Clinic and Hospital, University of Melbourne, sworn 25 July 2001, at this hearing. He gave evidence noting the history of the levels of TCO2 which were permitted. He noted that in 1996, the level was originally 37 millimoles per litre of plasma, which was subsequently lowered to 35 millimoles per litre of plasma, and then increased to the level of 36 millimoles per litre of plasma on 30 April 2001. He noted that the testing uncertainty of plus or minus 1.2 millimoles per litre meant that there would not be a prosecution for a reading under 37.2. He also stated that on 17 May 2001, the Western Australian Trotting Association resolved that where there was no apparent fraud of a trainer of a horse recording a level in excess of the limit, the penalties would be fines for the first two offences, and for the third offence, a fine of $15,000 and three months' suspension, or six months' disqualification. Where fraud was apparent the penalty was at the discretion of the Stewards. Apparently, later in July, the Western Australian Trotting Association varied the penalties by giving the option of a fine or a short period of suspension.

The Stewards, for their part, sought to rely upon an affidavit of Bernard John Saundry, Chief Executive Officer of Harness Racing Victoria, sworn 12 July, which exhibited the record of Mr Matson in harness racing.

In a later affidavit, sworn 24 July 2001, by Mr Saundry, reliance was placed upon a summary of penalties which had been imposed for breach of the rule concerning presenting a horse with a level of TCO2 above the permitted maximum.

Both these documents were before the Tribunal, but do not form part of the record.

The question is whether the affidavit evidence is admissible on the hearing of the review.

In Craig's case, supra, at p.176, the High Court addressed the question of evidence.

The Court held that where the writ was on the grounds of jurisdictional error, breach of procedural fairness or fraud, the Court can take account of any relevant material placed before it. However, where the relief is sought on the ground of error of law on the face of the record, the Court is restricted to the record.

In the Northumberland Compensation case, supra, Denning LJ considered the question of evidence at p.352. His Lordship said -

"When certiorari is granted on the ground of want of jurisdiction, or bias, or fraud, affidavit evidence is not only admissible, but it is, as a rule, necessary. When it is granted on the ground of error of law on the face of the record, affidavit evidence is not, as a rule, admissible, for the simple reason that the error must appear on the record itself. See Rex v Nat Bell Liquors Ltd. Affidavits were, however, always admissible to show that the record was incomplete, as, for instance, that a conviction omitted the evidence of one of the witnesses (see Chitty's Practice, vol. 2 at p.222, note (d)), or did not set out the fact that the justices had refused to hear a competent witness for the defence, whereupon the court will either order the record to be completed, or it might quash the conviction at once."

As His Lordship went on to say, notwithstanding the strictness of that rule, the parties could always, by agreement, overcome the difficulty by agreeing that a particular question should be argued and determined as if all the material was part of the record.

"Apart from these consent cases, it is often a very nice question whether an error which does not appear on the record is one which goes to jurisdiction or was only an error of law within the jurisdiction. If it goes to jurisdiction, affidavits are admissible, but otherwise not." (Emphasis added).

The High Court in Craig's case, supra, at p.176, referred to what Denning LJ said.

The strictness of the rule is underlined by what the Privy Council said in Rex v Nat Bell Liquors Ltd (1922) 2 AC 128 at 155, where the committee said -

"If justices state more than they are bound to state, it may, so to speak, be used against them, and out of their own mouths they may be condemned, but there is no suggestion that, apart from questions of jurisdiction, a party may state further matters to the court, either by new affidavits or by producing anything that is not on or part of the record." (Emphasis added).

The High Court in Craig's case has adopted the same strict approach. See supra, at p.181.

Unless the accepted record incorporates any other document, when considering the ground of error on the face of the record, the Court is confined to considering the record to determine whether there was an error of law.

Insofar as the affidavit of Professor Clarke seeks to give evidence that was not before the Tribunal, in my opinion, the evidence is inadmissible. His evidence concerning the change in the levels was in fact before the Tribunal. However, his evidence concerning the attitude of the Western Australian Trotting Association was not and, in my opinion, is not admissible on this review. The exhibits relied upon by the Stewards at this hearing, exhibited to the affidavits of Mr Saundry, merely include evidence that was in fact before the Tribunal.

The evidence relevant to each ground will vary according to the nature of the ground.

There is no suggestion that the Tribunal was exercising a jurisdiction which it did not have. Clearly, it was exercising jurisdiction and the questions are, first, whether it made an error of law, in the exercise of the jurisdiction, which was a jurisdictional error and secondly, whether there was an error on the face of the record. Mr Matson assumes a heavy burden of showing error.

The hearing before the Tribunal commenced on the afternoon of 16 May 2001. During that afternoon, certain evidence was tendered before the Tribunal and submissions were made by Counsel on behalf of Mr Matson and the Stewards. There is a transcript of the hearing but, in my opinion, it does not form part of the record of the Tribunal. On the following day, the chairperson, Mrs Nicholson, delivered her reasons, which have also been transcribed, and, in my opinion, form part of the record of the Tribunal.

The decision of the Tribunal was that Mr Matson was disqualified for a period of three years from holding a licence.

The thrust of the submissions made on behalf of Mr Matson comes down to an assertion that the penalty is excessive and unfair in all the circumstances, taking into account that the reading of 37.9 millimoles per litre of plasma, whilst fairly substantial at the time the offence was committed, was a small excess once the Rules were changed; that his prior conviction for a similar offence attracted a penalty of nine months' disqualification; and that the Western Australian approach to fine for the first two offences meant that he was unfairly dealt with.

However, this hearing is not an appeal. It is a narrow limited jurisdiction, confined to ensuring that the Tribunal acted within jurisdiction and in accordance with the law, in carrying out the jurisdiction. The basis for setting aside the decision is confined to Mr Matson establishing either jurisdictional error or that there was an error on the face of the record. The record is also restricted and does not include anything other than the initiating process for the appeal, the reasons and the formal record on the appeal.

The evidence relevant to each ground will vary.

Mr Gillespie-Jones did not submit that there was any error on the face of the record. Indeed, neither Counsel addressed the question of what constituted the record and whether there was an error on the face of it. I have carefully considered the grounds relied upon by Mr Gillespie-Jones and the record, and I am satisfied that there is no error of law on the face of the record. Accordingly, in considering the grounds, it is necessary for Mr Matson to establish that there was jurisdictional error in circumstances where the Tribunal was, in fact, exercising a jurisdiction which was given to it by statute.

When pressed by the Court as to what the ground meant, Mr Gillespie-Jones, on behalf of Mr Matson, submitted that the principle established in the Wednesbury case applied, and the penalty was unreasonable in that sense.

The Court raised the question of whether there was any reported case where the principle had been applied to an exercise of a discretion in fixing a penalty. Counsel did not refer the Court to any case.

In considering the Wednesbury principle, it must not be overlooked that it is not part of the jurisdiction for this Court to consider the merits of the decision itself.

In considering this ground, it is necessary to consider all of the material before the Tribunal.

In Associated Provisional Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223, the Court of Appeal was concerned with a local authority which had the power to grant licences for cinema performances on a Sunday "subject to such conditions as the authority thinks fit to impose". The local authority granted a licence subject to a condition that no children under 15 years of age would be permitted to attend a Sunday performance. The Court of Appeal held that the authority had not acted unreasonably or ultra vires in making the condition.

At p.229, Lord Green MR stated a principle which has been much used, especially in England, as a ground for review. There is no doubt a decision can be reviewed on the ground of its unreasonableness at common law.

"It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority." Warrington LJ in Short v Poole Corporation (1926) Ch 66 at 90, gave the example of the red haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might also be described as being done in bad faith, and, in fact, all these things run into one another." (Emphasis added).

His Lordship pointed out that Parliament had entrusted the local authority with the decision and Parliament left it to that authority, which had the knowledge and experience, to make the decision. His Lordship went on to say, however -

"It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming and, in this case, the facts do not come anywhere near anything of that kind." (Emphasis added).

His Lordship said it really came down to showing that it was "unreasonable in the sense that the Court considered it to be a decision that no reasonable body could have come to."

As the imposition of a penalty is the result of an exercise of a discretion, then as a matter of principle, the Wednesbury rule could apply to the penalty exercise. However, it would indeed be a very rare case that a reviewing court could come to the decision that it was so absurd that no reasonable tribunal could have reached that decision.

Various tests have been quoted. Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service (1985) 1 AC 374 at 410 said -

"It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."

See also Bromley Londonborough Council v Greater London Council (1983) 1 AC 768 at 821.

In R v Hillingdon L.B.C., ex parte Puhlhofer [1986] UKHL 1; (1986) AC 484, Lord Brightman, speaking for the House of Lords at p.518, said -

"The ground upon which the courts will review the exercise of an administrative discretion is abuse of power - e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense - unreasonableness verging on an absurdity." (Emphasis added).

In Kruger v The Commonwealth [1997] HCA 27; (1997) 190 CLR 1 at 36, Brennan CJ said -

"Moreover, when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised. Reasonableness can be determined only by reference to the community standards at the time of the exercise of the discretion and that must be taken to be the legislative intention."

Clearly, the question of whether the exercise of the discretion resulted in an unreasonable decision has to be determined by some objective standard.

In determining this question, it is necessary to consider the facts that were before the Tribunal which would include the Stewards' inquiry, the submissions, the evidence tendered before the Tribunal and the decision.

The offence is committed by presenting a horse for racing with the prohibited substance in its system in excess of what is permitted. It is unnecessary to prove that the trainer intended to administer the prohibited substance. Mr Matson pleaded guilty before the Tribunal. The evidence before the Stewards' inquiry revealed that despite much publicity within the industry of the risks involved in feeding certain types of feeds to horses, with the resultant elevation of the TCO2 levels, Mr Matson continued to feed his horses. He continued to feed his horses with a certain feed despite the fact that those whom he had followed had been charged with offences against the Rules. In addition, there were many warnings in the published material available to trainers.

Further, it was not in contest, at the hearing, as to the circumstances in which the levels were exceeded, nor was it in contest that Mr Matson was facing a period of suspension. No submission was put to the contrary.

Further, Mr Matson has an appalling record going back to 1984. Whilst the bulk of the offences are what the industry calls "traffic" offences, Mr Matson had been convicted and disqualified in respect of presenting a horse for racing with its bicarbonate level in excess of the amount permitted, and for failing to allow a horse to run on its merits. Whilst most of his offences are basically traffic offences, the seriousness of his transgressions is escalating.

On 12 September 1995, he was disqualified for 12 months for failing to allow a horse to run on its merits, and on appeal, it was dismissed. On 7 August 1997, he was disqualified for a period of nine months for permitting a horse to present for racing with a TCO2 level of 42.8 millimoles per litre. His appeal was dismissed on 24 September 1997.

I have carefully considered the reasons given by the Tribunal and, in my opinion, on no view could it be said that no sensible tribunal, having applied its mind to the issues, could not have arrived at that decision. On no view could it be described as absurd, irrational or illogical, and, in my opinion, the decision was clearly open to the Tribunal.

It has been recognised in the authorities that the Court can interfere if the punishment is altogether excessive and out of proportion. In R v Barnsley Metropolitan Borough Council, ex parte Hook (1976) 3 All ER 452, a local authority banned a stall holder from keeping a stall at a market because, one evening, after the market had closed and all the public lavatories were locked, the stall holder went into a side street and urinated. The Court of Appeal held that the authority was in breach of the rules of natural justice by reason of the fact that the market manager was present during the deliberations of the authority, but Lord Denning MR and Sir John Pennycuick held that the punishment was altogether excessive and out of proportion to the occasion. At p.456, Lord Denning MR said -

"Now, there are old cases which show that the court can interfere by certiorari if a punishment is altogether excessive and out of proportion to the occasion. In one case the Commissioners of Severn imposed an excessive fine; it was quashed by the Court of King's Bench on the ground that in law their fines ought to be reasonable."

The cases where that principle would be applied would indeed be cases where the punishment was out of all proportion to the circumstances, and excessive. In my opinion, again based upon facts which I have already summarised, it could not be said that the decision to disqualify Mr Matson for three years was excessive or out of proportion to the circumstances. It was argued before the Tribunal that the excess over the limit was small, especially in light of the changed Rules, and that is so, but the Tribunal, in my view, carefully considered the matter and came to the conclusion that a period of disqualification of three years was appropriate.

Under this ground, Mr Gillespie-Jones submitted that it was apparent that the Tribunal made a number of errors in approaching its task. I interpolate to observe that none were said to be on the face of the record.

In reaching its decision, the Tribunal referred to the record of Mr Matson.

The Deputy Chairman, Mrs Nicholson, carefully considered all the matters that were put to the Tribunal. In respect of the prior history of Mr Matson, she said -

"Mr Bourke, on behalf of Mr Matson, has ably put that Mr Matson has been a licensed trainer for a considerable period of time. He clearly comes before this Tribunal on these appeals with prior offences for - breaches of the rules. Other than traffic offences, such breaches include one prior offence, where an elevated TCO2 level was involved and was the subject of an appeal in 1997. There was a hearing before the now chairman of this Tribunal, His Honour Judge Nixon. Mr Matson has been found guilty by the Stewards of racing a horse Garboleno at Geelong on 17 July 1997 when not drug free. In that matter, a TCO2 level of 42.8 was found. The outcome of the appeal to this Tribunal, at that time, was that the appeals were dismissed and the nine months period of disqualification was to stand. That finding and record cannot be overlooked by this Tribunal."

"Matters remain to be finally considered and all matters have to be balanced and weighed. The Tribunal has taken into account and balanced the personal factors impacting upon Mr Matson and his personal situation but also that these cannot be taken in isolation without looking at his prior history in relation to these matters and I am not just talking about traffic offences in the harness racing industry. Clearly there has been a prior in relation to a proven breach of the rules for a horse returning very high TCO2 levels, which resulted in a period of disqualification of nine months."

"The issues clearly require that there be a balancing exercise and it has to be a weighing up of the following matters, Mr Matson's own personal circumstances, the issue of the punitive aspects given the consequences of the breach of the rules, the aspects of maintaining the reputation of the industry and seeking to maintain the fight for, and maintenance, of a drug free industry. The issues of deterrence, whether they be of an individual or general nature, and the fact, that Mr Matson comes before this Tribunal again, with a number of prior matters and it is of note that one is the prior matter involving a high TCO2 level in a horse which was dealt with by handing down a period of disqualification of nine months."

Mr Gillespie-Jones submitted that too much weight was placed upon the antecedent criminal history. He referred to what the High Court said in Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 477, where the Court said -

"There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: the antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind." (Emphasis added).

In my opinion, the Tribunal did not in any way misdirect itself, as a matter of law, as to the use of the prior history. The prior history was indeed relevant to show that it was not an uncharacteristic aberration, and it also supported the view of a continuing attitude of disobedience to the laws of racing. In my view, adopting what the High Court said in Baumer v The Queen [1988] HCA 67; (1988) 166 CLR 51 at 58, "the punishment fitted the crime".

Finally, Mr Gillespie-Jones submitted that the penalty was manifestly excessive, although no apparent reason is established for the error and hence, one can infer an error of law. He referred to what O'Brian J said in Robbins v Harness Racing Board [1984] VicRp 55; (1984) VR 641 at 647. In that case, three main arguments were relied upon by the applicant, and His Honour upheld the first two. He then went on to say this at p.647 -

"I find it unnecessary to consider the third limb of the argument of Dr Pannam in detail. I would merely observe that the imposition of a penalty of suspension, in all the circumstances, was at the extreme end of the penalty options open to the tribunal. Error can be demonstrated if a tribunal imposes a manifestly excessive penalty although the reason for the error is not apparent."

What His Honour said was obiter. He did not refer to any authority for the proposition. If His Honour was saying that there was a ground of attack based generally on the excessiveness of the penalty outside the principle stated by the Court of Appeal in the Hook case, supra, I would respectfully doubt whether that is correct. The limited nature of the jurisdiction would mean that it would be necessary to show that the excessiveness was a jurisdictional error. As the authorities have established, where a tribunal is acting within jurisdiction, the merits are irrelevant and it has the jurisdiction to be right as well as wrong. The principle referred to by Lord Denning MR in the Hook case showed that certiorari was available if the punishment was altogether excessive and out of proportion to the occasion. I have already discussed that principle.

Nevertheless, if there is a different basis of attack, namely, that the penalty was manifestly excessive in the circumstances, I am not persuaded on the facts in this matter that the penalty was excessive.

No error going to jurisdiction has been established in respect of the penalty.

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