1. In Nikolic v Racing Victoria Limited (Occupational and Business Regulation) [2012] VCAT 1954 (21 December 2012), his Honour Judge Macnamara succinctly summarised the regulatory context in which racing is conducted in Victoria as follows:

...Section 24 of the Act gives Racing Victoria a monopoly of the conduct of thoroughbred racing in the State and requires it to be carried out on licensed racecourses. The meetings must be carried out 'in accordance with the rules for the time being in force of Racing Victoria ...' (Section 61(c)).

'... According to the determination of the Tribunal (Ross J, President; Senior Sessional Member Mr J. Nixon and Senior Member E. Riegler) in Clements v Racing Victoria Limited [2010] VCAT 1144, those rules have effect in the manner that rules of clubs and unincorporated associations do, that is, by contract. The Racing Act requires the various players in the racing industry to hold licences from Racing Victoria and as such these licensed 'players' in the industry are bound by the Australian rules of racing.

The rules as they existed a few decades ago, were described by the Judicial Committee of the Privy Council in Calvin v Carr [1979] UKPC 1; [1980] AC 574 as constituting 'a comprehensive scheme or code for the administration of racing and for the exercise of discipline through domestic body' [1979] UKPC 1; [1980] AC 574, 589.

The rules place the supervision and control of race meetings in the hands of a group of officers known as stewards. This is in accordance with a model of operation which in Australia and Britain reaches back for centuries.

One of the features of this mode of control is that, as the primary disciplinary body in the racing industry, the stewards may occupy the role of prosecutor in disciplinary proceedings and also decision-makers in their own cause. This is in accordance with, and hallowed by, centuries of usage. In the Anglo-Australian legal system, generally, such a structure would be regarded as offensive to the rules of natural justice; nevertheless, those engaged in the racing industry are, by the force of contract and their acceptance of the Australian Rules of Racing, regarded as having dispensed themselves from the entitlement to rely on any inconsistent elements in the rules of natural justice or procedural fairness as they are sometimes described: R v Brewer; ex parte Renzella [1973] VicRp 36; [1973] VR 375.

1. This application centres on the Local Rules of Racing (LR), made by Racing Victoria, which govern applications for a jockey licence.
2. LR 36A permits a person licensed as a jockey by the directors of Racing Victoria to ride in a race at a race meeting.
3. LR 36B governs licences and permits.
4. On 1 July 2016, after Mr Nikolic made his application to this Tribunal, LR 36B(8)(a) was deleted and replaced with a new LR 36B. The relevant effect of the change to the rules was, to require, in addition to the 'fit and proper person' test to obtain a jockey's licence, the prerequisite that a person be of 'good reputation and character'.

application: requirement for grant of license to ride: an application to the directors for the grant or renewal of license or permit to ride must meet the requirements set out in the Racing Victoria Jockey Licensing Policy (as amended from time to time).

1. On the same day Racing Victoria's Jockey Licensing Policy ("the Policy") came into force, paragraph 3 (d) of the Policy provided as follows:

In addition to any specific requirements set out in this policy or in the rules, it is a requirement for the grant of any licence to ride that the person:

(d) character: is of good reputation and character and is a fit and proper person to hold a licence to ride, including adherence to Racing Victoria's social media policy.

1. The Tribunal generally applies the law as it stands at the time it exercises its review jurisdiction. In Branbeau Pty Ltd v Victorian Commission of Gambling Regulation [2005] VCAT 2606, President Morris stated at [38] 'the normal rule is that the Tribunal applies the law as it stands at the time of the Tribunal decision'. Similarly in Applebee v Monash CC [2014] VCAT 257, President Garde said at [35] that the review "is carried out on the basis of the facts and the law at the time the review decision is made".
2. Mr Burnside, however, submitted that I should apply the LR in force when Mr Nikolic filed his application for review.
3. He referred me to the High Court decision of Esber v the Commonwealth [1992] HCA 20; (1992) 174 CLR 430 as authority for the proposition that, in a hearing de novo where the applicant has an accrued right at the time of the application to have the matter determined on existing law, that existing law must be applied unless there is a clear intention the amendment extinguishes that right. He contended that Mr Nikolic did have such an accrued right.
4. Mr Gleeson submitted that Esber was distinguishable from the facts in this proceeding.
5. I agree with the submissions of Mr Gleeson.
6. Unlike in Esber, Mr Nikolic has not been deprived of his right to have the decision reviewed by the Tribunal. The right to review is conferred by section 83Q(a) of the Racing Act. This provision has not been repealed or amended. The right to review is not a right that accrued to Mr Nikolic under LR 36B. Nor is his right to review lost by reason of the amendment of LR 36B.
7. Mr Burnside submitted, in the alternative, that it would be contrary to natural justice to apply Racing Victoria's revised rules and jockey licensing policy. He said given the impact of barring an individual from their profession and the significant financial and personal impact of the decision on Mr Nikolic, the matter should be approached with meticulous caution and meticulous care. He contended that it offended any sense of justice that Racing Victoria could "move the goal posts" whilst the VCAT proceeding was 'on foot'.
8. I did not accept this contention. There is no evidence before me that Racing Victoria "moved the goalposts" with the intention of thwarting Mr Nikolic's application. The Legislature has seen fit to charge Racing Victoria with the responsibility of administering and controlling thoroughbred racing in Victoria and, in doing so, to decide upon the appropriate Rules of Racing. The rules apply in the same way to all applicants seeking to be licensed. There will inevitably be regulatory proceedings underway from time to time, which may coincide with Racing Victoria revising the rules of racing. It would be unrealistic to expect Racing Victoria to hold off changing rules until all proceedings were finalised, or to apply different rules to different applicants.
9. I am satisfied that there is no reason in this case why I should move away from the general rule that the Tribunal determines a matter on the facts and law as it exists at the time of the hearing.
10. Racing Victoria also contended that Mr Nikolic did not meet the requirement set out in the Policy under paragraph 3(g) - Intent: intends to ride in Victorian races on a regular basis.
11. Accordingly, standing in the shoes of Racing Victoria, in order to grant a licence to ride, I must be satisfied that Mr Nikolic is of good reputation and character and is a fit and proper person to hold a licence to ride, including adherence to Racing Victoria's social media policy. I must also be satisfied that Mr Nikolic intends to ride in Victorian races on a regular basis.
12. Mr Burnside contended that if I were to find against Mr Nikolic, my findings would be the equivalent of a finding of serious misconduct and should be assessed by the same standard. He referred me to the well-known test set out in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. He contended that I should only make a finding adverse to Mr Nikolic, after approaching the matter with caution and meticulous care and with "great appreciation for the possible disastrous consequences of disbarment to the individual concerned" (Legal Services Board v Francis McGrath [2010] VSC 266; (2010) 29 VR 325 at 329).
13. There is no strict onus of proof in these proceedings. I need to arrive at the correct and preferable decision in relation to Mr Nikolic's application for a jockey licence based on the totality of the evidence before me. The consequences are significant for each side. Barring an individual from his chosen profession potentially has a significant financial and/or personal impact. Conversely, Racing Victoria is given the onerous responsibility of ensuring the integrity of thoroughbred racing in Victoria is maintained. I agree that such matters need to be approached with care.
14. At the outset, the parties provided me with a Statement of Agreed Facts ("SAF"), which essentially provided a chronological history of matters relevant to this application, which I now replicate, with minor grammatical changes. I have also from time to time interposed (in brackets) further, non-contentious, contextual material.

1. In or around March 2010, a charge was found proven against Mr Nikolic by the Racing Appeals and Disciplinary Board under AR 175(p) and he was fined $5000 for failing to comply with a direction of the stewards in February 2010 to hand in his mobile phone for inspection of his contacts list.

2. On or around 29 June 2010, Mr Nikolic pleaded guilty in the Racing Appeals and Disciplinary Board to a charge under AR 175(j) for engaging in improper behaviour on 13 February 2010 at Moonee Valley Racecourse while speaking to Mr Terry Bailey (the Chief Steward), in the Stewards room.

3. On or around 29 June 2010, Mr Nikolic was found not guilty of two charges under AR 175(a) of 'dishonest, corrupt, fraudulent, improper or dishonourable action or practice in connection with racing".

On or around 29 June 2010, Mr Nikolic was found not guilty of two charges under AR 175(a) of 'conduct prejudicial to the image, or interests, or welfare of racing".

(These matters became known the "Betfair Inquiry").

On or around 29 June 2010, Mr Nikolic pleaded guilty to a charge under AR 91 and was fined a total of $1000 for having left the jockeys' room without gaining permission from the Stewards on four occasions in Seymour (18/09/09); Kyneton (20/10/09); Geelong (21/10/09) and Flemington (01/01/10).

4. On or around 10 July 2010, Mr Nikolic pleaded guilty to a charge under AR 83(a) for misconduct and was fined $300 because:

(a) he said a licensed trainer was 'an absolute mug, dickhead, brain dead'; and;

(b) his general conduct in the Stewards' Inquiry.

5. On or around 4 September 2010, Mr Nikolic was severely reprimanded after being charged with misconduct under AR 83(a), having used insulting language in the Scales area before the running of a race at Flemington Racecourse.

6. On or around 29 September 2010, Mr Nikolic was charged under AR 83(a) for misconduct and fined $300 ahead of race 1 at Ballarat Racecourse.

7. In or around November 2010, Mr Nikolic pleaded guilty to a charge under AR 175(a) for his conduct towards a Stewards' Inquiry into whether a particular riding vest in Mr Nikolic's bag did not comply with standards. The Racing Appeals and Disciplinary Boards reasons, which Racing Victoria relies on, include several unfavourable findings about Mr Nikolic's conduct and attitude toward those in authority

8. On 18 January 2011, Mr Nikolic was involved in a physical altercation with jockey, Mr Mark Pegus. Mr Nikolic subsequently was found guilty of recklessly causing injury and fined $300.

(Although the parties did not do so, I consider it relevant to interpose another event. On 27 February 2011, Mr Nikolic's former father-in-law, Les Samba was killed - he was gunned down in the street. An extraordinary amount of adverse media publicity and speculation took place in the Media, suggesting that Mr Nikolic played some part in the killing. He has never been charged with involvement in the murder).

9. On 7 March 2011, at the Hotel Barkly in Saint Kilda, Mr Nikolic had an aggressive verbal exchange and physical contact with a woman, Ms Rikki- Lee Hull, the (then) girlfriend of Mr Pegus. On 5 December 2013, Mr Nikolic pleaded guilty to assault in the Melbourne Magistrates' Court where no conviction was recorded and he was placed on a 12-month good behaviour bond.

10. Mr Nikolic was found in possession of a mobile phone within the area of the jockeys' room and pleaded guilty to a charge under AR 160B(3)

11 On or around 6 April 2011, Mr Nikolic attended the Saint Kilda Police Station to be interviewed over the above alleged assaults of Mr Pegus, on 18 January 2011 and Ms Hull, on 7 March 2011. As a result of physical contact between Senior Constable Salerno and Mr Nikolic during the interview, Mr Nikolic was convicted of assaulting a police officer on duty and fined $300.

(I further interpose my own part of the chronology at this point, to add that in 2012, a further investigation was launched into a race Mr Nikolic had won on the horse "Smoking Aces". The race took place on 27 April 2011, at Cranbourne (race 6). There was intense media speculation that he had acted improperly. On 15 July 2013, police announced that no charges would be laid in relation to "Smoking Aces").

12. On or around 10 May 2012, Mr Nikolic was issued with an infringement notice and fined $244 in circumstances in which it was alleged that he took items from a bag in a Coles supermarket and ate them in store.

13. Mr Nikolic was charged under AR 83(a) and reprimanded for misconduct, on 28 June 2012, for using inappropriate language toward the VRC float car park attendant, Ron Levett, when Mr Nikolic arrived on course before the first race on 12 March 2011.

14. On or around 4 September 2012, at a Seymour race meeting, about five minutes before race 5, Mr Nikolic said to Mr Bailey 'keep your eyes on the road, Terry'.

15. After the running of race 5, Mr Bailey conducted a Stewards' Inquiry into the 'keep your eyes on the road, Terry' comment.

16. At the Stewards' Inquiry into the 'keep your eyes on the road, Terry' comment, Mr Nikolic sat with his feet up on the Stewards' table and removed them when asked. Mr Bailey repeatedly asked Mr Nikolic if he was threatening him and Mr Nikolic repeatedly responded by asking him if he felt threatened.

17. After the Stewards' Inquiry and shortly before race 6, in a separate incident on 4 September 2012 at Seymour Racecourse, Mr Nikolic spoke to Mr Bailey in an inappropriate fashion. Mr Nikolic was charged with breaches of AR 175(a) and AR 175A regarding the incident and on 2 October 2012 was found guilty by the RAD Board. Mr Nikolic was suspended for two years.

18. Shortly after 2 October 2012, Mr Nikolic appealed to the Victorian Civil and Administrative Tribunal for review of the RAD Board's decision concerning the 4 September, Seymour incidents. He applied for a stay of the decision, pending the determination of the review proceeding.

19. On or around 4 October 2012, the Chief Commissioner of Victoria Police issued Mr Nikolic with a Casino Exclusion Order under the Casino Control Act 1991 (Vic). Mr Nikolic has never appealed this order.

20. On or around 16 October 2012, Mr Nikolic's stay application relating to the RAD Board's decision, dated 2 October 2012, was heard before VP Judge Macnamara in the Victorian Civil and Administrative Tribunal.

21. In November and December 2012, Mr Nikolic's review application regarding the 4 September 2012, Seymour incidents was heard before VP Judge Macnamara in the Victorian Civil and Administrative Tribunal.

22. On around 8 November 2012, during the course of the second day of Mr Nikolic's review hearing at the Victorian Civil and Administrative Tribunal, concerning the 4 September 2012, Seymour incidents, Mr Nikolic said the words 'you're a disgrace' to another Racing Victoria Steward, Mr Wade Hadley, after he had given evidence and left the witness box.

23. On around 29 November 2012, during the course of the third day of Mr Nikolic's review hearing at the Victorian Civil and Administrative Tribunal, concerning the 4 September 2012, Seymour incident, Mr Nikolic approached Mr Hadley outside the Tribunal hearing room and sat down next to him. Mr Nikolic spoke to Mr Hadley in an inappropriate fashion.

24. On 21 December 2012, Judge Macnamara handed down his decision concerning the incident in Seymour on 4 September 2012, affirming the decision of the RAD Board and reserving the decision on the question of penalty.

25. On 13 February 2013, the Mornington Cup was held at the Mornington Racecourse.

26. On or around 14 February 2013, at approximately 1:15 am, Mr Nikolic was driven by taxi from Mornington to Mt Martha. Mr Nikolic was involved in a physical altercation with the driver. Mr Nikolic subsequently pleaded guilty to recklessly causing injury in respect of this altercation and no conviction was recorded.

27. On 19 February 2013, Judge Macnamara delivered his decision on the question of penalty in relation to the 4 September 2012, Seymour incidents between Mr Nikolic and Mr Bailey.

(I interpose that the order as to penalty made by the RAD Board on 2 October 2012 was varied by modifying the penalty on charge one, so as to record a period of one year's disqualification followed by a one year suspension. The determination of the RAD Board was otherwise affirmed).

28. On or about 21 May 2013, the Racing Victoria Stewards charged Mr Nikolic for alleged breaches of AR 175(a) for the incidents on 8 November 2012 and 29 November 2012, involving Mr Wade Hadley.

29. On or about 6 August 2013, Mr Nikolic was found guilty by the Local Court of New South Wales of contraventions of a Domestic Apprehended Violence order by sending text messages.

30. On or around 17 October 2013, there was a penalty hearing before the RAD Board following Mr Nikolic's plea of guilty to the charges in respect of the incidents which occurred at the Victorian Civil and Administrative Tribunal, on 8 November 2012 and 29 November 2012, between himself and Mr Hadley.

31. On 5 December 2013, Mr Nikolic was found guilty of contraventions of an Apprehended Violence order against his ex-wife, Victoria Samba, by sending text messages.

32. In around early December 2013, Mr Nikolic, applied to the Victorian Civil and Administrative Tribunal for review of the RAD Board's decision on penalty, concerning the Hadley incidents.

33. On 17 December 2013, VP Judge Jenkins heard Mr Nikolic's application for review in respect of the Hadley incidents.

34. On around 18 December 2013, Judge Jenkins delivered her decision on penalty in respect of the incident involving Mr Hadley. Her Honour extended Judge Macnamara's sanctions against Mr Nikolic (concerning the Seymour incident), by a further 12 months. Accordingly, Mr Nikolic was disqualified until 30 September 2014 and then only permitted to ride track work, and not ride in races up until 30 September 2015. As matters transpired, Mr Nikolic was not able to obtain a licence and thus was not able to ride track work or in races.

35. On 25 February 2014, Judge Jenkins delivered her written reasons for the decision in respect of the incident involving Mr Hadley

36. On 28 February 2014, Mr Nikolic was found guilty by the Local Court of New South Wales of contraventions of a Domestic Apprehended Violence order by sending text messages.

37. On 23 May 2014, Mr Nikolic was found guilty by the Local Court of New South Wales of four counts of contraventions of a Domestic Violence order by sending text messages.

38. On 23 May 2014, Mr Nikolic was found guilty by the Local Court of New South Wales of using a carriage service to menace/harass/ offend.

39. On 3 August 2014, Mr Nikolic was served with a drink-driving infringement notice for a blood alcohol concentration of 0.068.

40. On 10 June 2015, Mr Nikolic attended the races at Flemington Racecourse and entered the mounting yard. Mr Nikolic left the area when asked to do so.

41. On around 12 November 2015, Deputy Commissioner Mr Shane Patton, the Delegate of the Commissioner of Police, issued Mr Nikolic with a Racecourse Exclusion Order under section 33 of the Racing Act 1958 (Vic).

(I interpose that the order prohibited Mr Nikolic from entering or remaining at specified racecourses for the duration of the race meeting. It could not have been made if Mr Nikolic held an occupational racing licence. The police must be notified if an excluded person is at a specified racecourse during the meeting).

42. In around late January 2016, Mr Nikolic made an application for judicial review in respect of the 12 November 2015 exclusion order to the Supreme Court of Victoria.

43. On 16 June 2016, Justice Ginnane handed down his decision quashing the exclusion order[1].

44. On or around 18 July 2016, the Chief Commissioner of Victoria Police filed an application for leave to appeal the decision of Justice Ginnane in the Court of Appeal.

1. On 14 October 2016, the Court of Appeal handed down its decision in Chief Commissioner of Police v Nikolic [2016] VSCA 248 allowing the Chief Commissioner's appeal against the decision of Justice Ginnane. I understand that Mr Nikolic has issued an application for special leave to appeal to the High Court of Australia from the judgment of the Court of Appeal.

Factual findings and discussion based on the SAF

1. During the course of the hearing, the parties took me on a long journey revisiting in detail each of the incidents set out in the SAF.
2. Racing Victoria, in particular, invited me to make detailed findings in relation to a number of those incidents as to "who said/did what to whom".
3. Many of the disputed matters have now been the subject of proceedings before either the RAD Board, and/or this Tribunal, or the Courts. Findings have previously been made about the conduct. There have been findings adverse to Mr Nikolic.
4. Whilst he acknowledges some wrongdoing, there are aspects of the conduct relied upon by Racing Victoria that Mr Nikolic disputes and has always disputed.
5. I discuss the conduct under the following broad headings:
   • (a) conduct within the racing industry (SAF items 1,2,3,4,5,6,7,10, 13,14,15,16,17,22,23 and 40);
   • (b) criminal conduct outside racing industry (SAF items 8, 9, 11 and 26);
   • (c) Court orders (SAF items 29,31,36,37 and 38);
   • (d) Casino and Racing Exclusion orders (SAF items 19 and 41);
   • (e) other matters (SAF items 12 and 39);
6. During the course of the proceedings, a number of other matters arose for my consideration, which I also discuss under the following headings:
   • (f) wagering related integrity issues;
   • (g) conduct overseas;
   • (h) current attitudes towards officials of Racing Victoria
   • (i) media articles; and
   • (j) ability to work with the Head Steward.

(a) conduct within the racing industry (SAF items 1,2,3,4,5,6,7,10,13, 14,15,16,17,22,23 and 40);

1. In March 2010 (SAF 1), Mr Nikolic agrees that he refused to hand in his mobile phone for inspection by the Stewards. He explained his belief that there was some ambiguity at the time about whether Stewards could request a jockey's mobile phone. He said he had been advised by the Jockeys' Association not to co-operate. He was fined. Mr Nikolic gave evidence that the Jockeys' Association paid the fine and that the ambiguity no longer exists - jockeys are required to check in their mobile phones with the Stewards upon arriving at the races.

1. On 29 June 2010 (SAF 2), in the Stewards' room, Mr Nikolic agrees he said words to the effect that Mr Bailey was "fucking kidding". This was the first matter lead in evidence before me of many episodes of Mr Nikolic swearing at the Chief Steward.
2. During 18 September 2009 to 1 January 2010 (SAF 3), Mr Nikolic agrees that he left the jockeys' room on four occasions without gaining permission to do so from the Stewards. These matters were dealt with on the same day that Mr Nikolic was found not guilty of a number of extremely serious allegations. In the context of those serious allegations, these incidents could be classified as extremely minor. They are, nevertheless, indicative of Mr Nikolic's burgeoning reluctance to observe reasonably straightforward rules.
3. On 10 July 2010 (SAF 4), Mr Nikolic agrees that he said a licensed trainer was "an absolute mug, dickhead, braindead" and that he acted poorly during the Stewards' Inquiry.
4. On 4 September 2010 (SAF 5), Mr Nikolic agrees that he used various vulgarities in the Scales area when he was asked to hurry up. Whilst he agreed in his evidence before me that he should not have done so, he also gave a detailed justification for doing so: in which he explained the considerable pressures of jockeys on race days having to make weight, (particularly those who are not natural lightweights).
5. Around 29 September 2010 (SAF 6), at the Ballarat Racecourse, Mr Nikolic agrees that he took a swig of beer before race 1. He said he did so because he was parched and there was no other liquid readily available. Unsurprisingly, this conduct drew the swift attention of the Stewards. Mr Nikolic colourfully expressed his views to them. His horse was scratched. Mr Nikolic concedes that he was rude and sarcastic.
6. This incident could have been avoided. Parched though he may have been, it was nevertheless extraordinary behaviour to take a swig of alcohol before a race. Even if it did not put him above blood alcohol limits, it is not behaviour the public or Stewards would expect to see immediately before a race. It would have to raise concerns in any observer's mind as to the fitness of the jockey to ride. Mr Nikolic remained defensive about this incident in his evidence before me, seemingly feeling that his conduct was justified and the Stewards overreacted.
7. In November 2010 (SAF 7), during a Stewards' Inquiry, Mr Nikolic concedes that he was rude and disrespectful. Mr Nikolic once again gave evidence that he considered himself to have been poorly treated by the Stewards. Mr Nikolic stressed that this incident took place during the pressures of the Spring Racing Carnival. According to his evidence, he took umbrage at the fact that the Racing Victoria Stewards had searched his bag without him present, apparently concerned that a vest belonging to him was potentially not in compliance with the Australian regulations. Usually, he thought, such a search would have the jockey and an observer present.
8. In 2011 (SAF 10), Mr Nikolic agrees that he was found in possession of a mobile phone within the area of the jockeys' room. Mr Nikolic knew that it is not acceptable to have mobile phones in the jockeys' room.
9. On 28 June 2012 (SAF 13), Mr Nikolic agrees that he used inappropriate language towards a car park attendant. He apparently apologised for doing so.
10. I group SAF 14, 15, 16 and 17 together because they all arise from the same day in Seymour, (4 September 2012). The events of this day were to become pivotal for Mr Nikolic's subsequent career.
11. Mr Bailey and Mr Nikolic have very different views about what happened in Seymour. Those different views were played out before the RAD Board, and in subsequent VCAT proceedings before Judge Macnamara. They were again played out before me.
12. On 4 September 2012, at a Seymour race meeting, Mr Nikolic agrees that he said to Mr Bailey "keep your eyes on the road, Terry". Mr Nikolic contended in his evidence before me, (and has always contended in the various proceedings set out in the SAF), that the words were meant light-heartedly, in imitation of a television commercial. Mr Bailey gave evidence, (and has similarly always given evidence), that he took the words as a threat.
13. The "keep your eyes on the road, Terry" words were at best extremely ill advised. Mr Nikolic did not have a friendly or playful relationship with Mr Bailey that would lend itself to light heartedly using words which, by their very nature, appear to be a threat. By this time, they had a hostile relationship. In this context of the relationship between the men they could only take on the threatening or menacing meaning that Mr Bailey attributed to the words. I accepted Mr Bailey's evidence that he took the words as a threat.
14. Matters did not improve. A Stewards' Inquiry was conducted by Mr Bailey. Mr Nikolic, in his evidence before me, agreed that he "behaved like a smart arse during the inquiry." He gave evidence that he thought Mr Bailey responded with something similar.
15. The Stewards' Inquiry was adjourned without result.
16. The purpose of these proceedings is not to make findings about the manner in which Stewards' Inquiries are conducted. No matter how Mr Nikolic views the process of Stewards' Inquiries, they are a very real part of the race day experience and jockeys are required to participate. I am satisfied, having listened to the recording of the Stewards' Inquiry, that Mr Nikolic did not conduct himself appropriately during it. His self-description aptly describes his behaviour.

1. Unfortunately, shortly thereafter, a further incident took place at the Stewards' tower. Mr Bailey gave evidence that, during a further exchange between the men, Mr Nikolic again threatened him using the words: "we've all got families cunt and I know where yours live cunt".
2. Mr Nikolic denies saying the words.
3. Mr Nikolic admits that he said (at least) "Terry you're a fucking grub" and "you're a cunt of a thing." Under cross-examination, Mr Nikolic agreed that he gave Mr Bailey "a spray" and probably included the word "cunt" three to four times. He said he did so, in response to Mr Bailey's initiating a conversation with him, saying, "I told you I was going to fuck your career".
4. Mr Bailey gave evidence that he said no such words to Mr Nikolic.
5. The encounter resulted in Mr Nikolic being "warned off" - essentially having to leave the racecourse and his horse being scratched.
6. In the proceeding before me, the parties dissected the movements of both men prior to the exchange. Each questioned how and why it came about that the other was at the Stewards' tower. I did not find this exercise particularly helpful in determining what was said. What is clear, is that there was an exchange between the men which was not overheard by any other person.
7. Mr Nikolic was clearly agitated after the Stewards' Inquiry.
8. Having had the benefit of reading much of what comes out of Mr Nikolic's mouth when agitated, I formed the opinion that, when agitated, Mr Nikolic does not hesitate to escalate his "mouthing off" the more agitated he becomes. His words flow freely and he says the first thing that comes into his head. I fully accept the evidence of Mr Bailey that he did so again on this occasion and said the words attributed to him by Mr Bailey.
9. Mr Nikolic admits that he gave a watered down version of what occurred to the RAD Board. In those proceedings, he did not even admit that he swore at Mr Bailey. Mr Bailey, conversely, has consistently given the same version. I accepted Mr Bailey's evidence that Mr Nikolic did say the words described by him. I accept that he took a contemporaneous note of them. I consider that Mr Nikolic deliberately understated, in his evidence before me, the extent of the words used toward Mr Bailey in an endeavour to be seen in a better light.
10. The words were by their nature both threatening and intimidatory.
11. I further did not accept that Mr Bailey said the words attributed to him by Mr Nikolic. He had no reason to do so. Even on Mr Nikolic's own evidence, Mr Bailey had never previously threatened to ruin Mr Nikolic's career. In these circumstances the words do not make sense.

1. On 8 November 2012, Mr Nikolic agrees that he said the words "you're a disgrace" to another Racing Victoria Steward, Mr Wade Hadley, after he had given evidence before Judge Macnamara in the VCAT proceedings and left the witness box (SAF 22).
2. On 29 November 2012, Mr Nikolic also agrees that he spoke inappropriately to Mr Hadley, having approached him outside the hearing room (SAF 23).
3. In his evidence before me, Mr Nikolic said that, following a comment from Mr Hadley along the lines that "things aren't going too well for you", Mr Nikolic went and sat beside him and said, "you're going up in the world aren't you?" and Mr Nikolic further said, "you fine fucking specimen of a human being, you can't even make eye contact" and Mr Hadley's response was, "I'm just doing my job", or "I'm just trying to make a living" or something to that version. And then Mr Nikolic said to him, "Terry's got rid of all his - all the decent stewards. Let's see where you end up" and he took that as a threat.
4. I considered it highly unlikely that Mr Hadley uttered the words attributed to him by Mr Nikolic. They had no history of conflict.
5. At the VCAT hearing before Judge Macnamara, Mr Nikolic denied saying anything to Mr Hadley. He admitted, in evidence before me, that that was not a true answer.
6. The conduct is most concerning. It is inappropriate and intimidating for any witness to be approached by a party in proceedings. Mr Nikolic had no prior animosity towards Mr Hadley. He barely knew him.
7. In June 2015 (SAF 40), Mr Nikolic agrees that he attended the races at Flemington Racecourse and entered the Mounting Yard. He accepts that he was not permitted to be there. Mr Nikolic knew why he was not permitted in the Mounting Yard. He left the area without incident when asked to do so.

(b) criminal conduct outside the racing industry (SAF items 8, 9, 11 & 26)

1. On 18 January 2011, Mr Nikolic was involved in a physical altercation with another jockey, Mr Pegus (SAF 8).
2. Some time was spent, during the hearing, dealing with the question of who did what to whom, with each of Mr Nikolic and Mr Pegus contending the other had started the altercation. Time was also spent discussing where punches had landed. I did not feel the need to trouble myself with these details. On any analysis, Mr Nikolic concedes he was found guilty of recklessly causing injury, having hit Mr Pegus "pretty forcefully" and says he would not do it again. He conceded that Mr Pegus probably sustained a bruise and swelling to the upper left eye socket. Mr Nikolic, in his evidence before me, expressed remorse for his involvement in this incident.

1. In his submissions, Mr Burnside described this incident as a minor physical altercation. Having heard the evidence of both Mr Nikolic and Mr Pegus, coupled with a consideration of the penalty imposed, I accept that in terms of the criminal law, it was a relatively minor incident following a heated discussion about who was to ride a particular horse.
2. Mr Pegus did not immediately report the matter to police and had there not been a further incident involving Mr Pegus' girlfriend and Mr Nikolic, I accept it is unlikely that the matter would have gone any further.
3. Although Racing Victoria contended that such an incident would be very rare, I accepted the evidence of Mr Pegus that, in the heat of intense competition between jockeys, such incidents do occur from time to time. It is probably not surprising that the Stewards are not always aware of these matters, in much the same way as a school principal is not always aware of everything that takes place in the schoolyard. I also accept that Mr Pegus, whilst not continuing a cordial relationship with Mr Nikolic, would not be concerned about his return to racing.
4. Had this been the only incidence of actual violence alleged against Mr Nikolic, it is unlikely that I would have given it much, if any, weight.
5. However, on 7 March 2011, Mr Nikolic had an aggressive verbal exchange followed by physical contact with Mr Pegus' then girlfriend, Ms Ricki-Lee Hull (SAF 9).
6. In his evidence before me, Mr Nikolic contended that Ms Hull called him "a prick" and accused him of being involved in the death of his former father-in-law. He said that he lost his temper, grabbed her shoulder and pushed her away.
7. Ms Hull was intoxicated on the night. It has been a long time since the incident occurred. In these circumstances, it is not surprising that she gave what I considered to be rather vague evidence.
8. What was clear, however, was that she had clearly formed a dislike for Mr Nikolic, based on the incident with her then boyfriend, Mr Pegus.
9. I accepted that Mr Nikolic, on the other hand, had no reason, in particular, to have any animosity toward Ms Hull.
10. It seemed to me, on balance, quite possible that Ms Hull started the exchange. Nevertheless, I am satisfied that Mr Nikolic readily rose to the occasion and a heated verbal exchange quickly ensued.
11. Mr Nikolic adamantly denied that he said "if you don't keep your mouth shut it will not happen here, it will happen elsewhere". Ms Hull appeared to me quite hesitant in her recall of the exact words exchanged between the pair, until prompted. I was not, in these circumstances, sufficiently satisfied that he uttered those words.

1. Unfortunately, the matter did not end with a verbal exchange. It is unclear exactly how it escalated. Nevertheless, I accept and Mr Nikolic concedes, that during the incident he made physical contact with Ms Hull and, whilst doing so, pulled Ms Hull's hair. He pleaded guilty to the assault.
2. It was most concerning that Mr Nikolic allowed a verbal exchange to escalate to a physical exchange, so shortly after the physical exchange with Mr Pegus.
3. This episode demonstrated an escalation in Mr Nikolic's inability to control himself from verbalising to engaging in physical altercations.
4. To make matters worse, on 6 April 2011, Mr Nikolic was interviewed in relation to the above assaults. As a result of physical contact between Senior Constable Salerno and Mr Nikolic, Mr Nikolic was convicted of assaulting a police officer on duty (SAF 11).
5. Racing Victoria impressed upon me the need to make findings as to the words spoken by Mr Nikolic to Senior Constable Salerno. I am not minded to do so. Mr Nikolic and Senior Constable Salerno gave different versions of the words spoken. In their evidence, each reminded me that the incident occurred some years ago. I note Mr Nikolic was not charged with offensive language arising out of the incident. Suffice to say, on any view, once the recording device was turned off, I accept that Mr Nikolic was not at his charming best.
6. Senior Constable Salerno gave evidence before me. He said that Mr Nikolic stood up when the interview had finished and that he felt threatened and threw Mr Nikolic back into the chair. Mr Nikolic again stood up and their heads touched. Senior Constable Salerno agreed that the touch was not hard. He also importantly did not consider the contact to be deliberate.
7. The pair shook hands and Mr Nikolic apologised.
8. Although, in some respects, a minor assault, it is nevertheless once again of grave concern that yet another interaction with Mr Nikolic culminated in physical contact. In his evidence before me, I was concerned that Mr Nikolic expressed some regret for having apologised to Senior Constable Salerno. Mr Nikolic held strong views about Senior Constable Salerno. He felt Senior Constable Salerno had had an impact on his racing career and contributed to the adverse press publicity surrounding him. Mr Nikolic did not think that Senior Constable Salerno should have been asking him any questions about the Pegus/Hull matters.
9. It was of concern to me that another authority figure, this time a police officer, received the wrath of Mr Nikolic.
10. In February 2013, Mr Nikolic pleaded guilty to recklessly causing injury to a taxi driver (SAF 26).
11. I heard evidence from both Mr Nikolic and the taxi driver. It was clear from his evidence that Mr Nikolic has little or no recollection of the matter, as he was intoxicated at the time. I accepted the clear evidence of the taxi driver.
12. I accept that Mr Nikolic did say to him "you cunts, you don't understand", before punching him unprovoked in the face, forcefully. This incident once again demonstrated an increasing propensity for Mr Nikolic to follow his verbal abuse with physical abuse.

1. Mr Nikolic also agrees that during 2013-2014 he contravened a number of Domestic Apprehended Violence orders by sending text messages and used a carriage service to menace/harass/offend.
2. I have read the texts. It is an understatement to say that they were not cordial.

(f) Casino and Racing Exclusion orders (SAF items 19 and 41)

1. Mr Nikolic agrees that, on 4 October 2012, the Chief Commissioner of Victoria Police issued him with an exclusion order prohibiting him from entering or remaining in the Crown Casino in Melbourne under section 74 (1) of the Casino Control Act 1991 (Vic) (SAF 19).
2. In making the order, the Chief Commissioner formed the view that it was necessary in the public interest to prohibit Mr Nikolic from entering or remaining in the casino complex.
3. In November 2015, Victoria's Deputy Commissioner of Victoria Police, Mr Shane Patton, as delegate of the Commissioner of Police, issued Mr Nikolic with a Racecourse Exclusion order.
4. I was referred to the comments made by the Deputy Commissioner when imposing the exclusion order. The Deputy Commissioner formed the view that allowing Mr Nikolic to attend race meetings at Victorian licensed racecourses posed a risk to the integrity of the Victorian racing industry and the safety and well-being of racing industry officials and participants and the general public, who attend race meetings. Accordingly, he concluded that it was necessary, in all of the circumstances, to make the exclusion order in the public interest.

1. In May 2012, Mr Nikolic took items from a bag in a Coles supermarket and ate them in store (SAF 12).
2. Mr Nikolic gave evidence in which he agreed that he was in a supermarket, with his nephew, when the pair drank bottles of Lucozade whilst in the store.
3. This was a relatively minor matter. I accept that Mr Nikolic probably did intend paying for the items as the pair had not hidden what they were doing. The conduct, however, once again reflects Mr Nikolic's contempt for the norms of conduct. Everyone else waits until they have paid for items before consuming them.
4. On 3 August 2014, Mr Nikolic was served with a drink-driving infringement notice for a blood alcohol concentration of 0.068 (SAF 39).
5. I did not consider this matter at all relevant to my decision. No emphasis was placed on this matter by Racing Victoria.

1. I am satisfied that Mr Nikolic has regularly abused and sworn at many individuals directly involved in racing - he did so in all types of contexts, ranging from swearing at a carpark attendant to swearing at the Chief Steward. He has shown little discretion for where this occurs - during Stewards' Inquiries; in the jockeys' room; in the carpark. The recipient of his most florid abuse has been Mr Bailey, the Chief Steward.
2. I accepted Mr Nikolic's evidence that the racing industry has a greater acceptance of robust language than other industries might have. I also accepted that Mr Nikolic has expressed himself colourfully from his youth, it having formed part of his normal parlance from a young age. Nevertheless, Mr Nikolic has taken it to new heights. His language, particularly towards stewards, flows from him in an unrestrained and seemingly unprecedented manner. I accepted the evidence of Mr Bailey that stewards are not usually spoken to in this way. Whilst Mr Nikolic pleaded to some extent a right to engage less formally with those around him, because of his status as an accomplished jockey, the reverse is probably true - that he should understand the pressures and complexities of race days and the procedures required and act more respectfully.
3. Mr Nikolic gave evidence in which he attempted to justify his conduct. He felt he was being singled out. He felt he was being pulled up unfairly for trivial reasons by the stewards.
4. I did not consider that this evidence assisted Mr Nikolic's case. It is in the very nature of race days, as Mr Nikolic well knows, that decisions may need to be made quickly and arbitrarily. Some of those decisions in the cool light of day may be seen to be wrong. Stewards will frequently make decisions which are unpopular with jockeys. They will often be made at a time when jockeys (and stewards) are under immense pressure. In the hectic environment of a race day, potentially serious issues, which may go to the heart of the integrity of racing, need to be dealt with immediately.
5. I am satisfied that Mr Nikolic has threatened and intimidated Mr Bailey. I am also satisfied that Mr Nikolic acted in an aggressive and intimidatory manner towards another steward, Mr Hadley.
6. Stewards regularly have to make critical decisions about jockeys and their conduct, both off-course and on, which go directly to the integrity of racing. They cannot, in any circumstances, be, or, feel themselves to be, the subject of threats and/or intimidation. Such conduct can significantly undermine confidence in the integrity of racing.
7. I am satisfied that Mr Nikolic has demonstrated a willingness to disobey stewards' directions and act in a manner inconsistent with the expectations placed on a jockey, on a number of occasions.
8. When considered individually, some of these matters are of less significance than when taken collectively. Taken collectively, they give the impression that Mr Nikolic is prepared to do what he wants, when he wants, regardless of the rules, the Stewards' expectations and the way this may reflect on the racing industry.
9. None of this conduct is befitting to an experienced jockey.
10. All of these matters form part of the consideration as to whether Mr Nikolic is an appropriate person to be licensed as a jockey.
11. I am also satisfied that Mr Nikolic has engaged in violent behaviour away from the racing industry, on a number of occasions. The relevance of this to the matters before me lies in the consistency of his conduct. Mr Nikolic has a demonstrated lack of control, both within his working environment and away from his work environment.
12. I am satisfied that Mr Nikolic has breached Apprehended Violence Orders. I accept that Mr Nikolic was feeling under pressure and was very upset by his marriage breakup and the implications for access to his daughter.
13. I also accept the submissions made by Mr Burnside that such contraventions can take many different forms and that the sentences imposed show that the contraventions, in terms of the criminal sentencing procedure, were at the lower end.
14. However, Court orders were made. They were made for a reason. Mr Nikolic disregarded the Court orders. He did so on multiple occasions.
15. This is, in my opinion, another example of Mr Nikolic's readiness to flout or ignore rules and directions when it suits him.
16. Mr Nikolic is currently banned from both the casino and racing venues under exclusion orders.
17. There are presumably people issued with Casino Exclusion orders still able to work in their chosen areas. It is no doubt however somewhat exceptional for a jockey to be banned from a gambling facility. Similarly it would be exceptional for a jockey to be banned from a racecourse.

1. Racing Victoria contended that it was relevant to the application for me to explore wagering related integrity issues.
2. Racing Victoria issued witness summonses focusing on the financial arrangements of Mr Nikolic and his associates.
3. The summonses were the subject of lengthy arguments. Ultimately I allowed Racing Victoria to view the financial material, the subject of the summonses and cross-examine Mr Nikolic and his partner on their content.
4. Mr Burnside periodically expressed concern at where the examination was going.
5. Ultimately it went nowhere.
6. Witnesses Mark and John Zahra were also called by Racing Victoria to give evidence.
7. The evidence sought to be led from Mr Mark Zahra was "_whether or not he was intimidated by Mr Nikolic during the '_Smoking Aces' investigation by Racing Victoria".
8. Once again, summonses issues arose. Mark Zahra, through his legal representatives, resisted the summons on the basis that Mr Zahra's evidence would be that he was not intimidated. I did not set aside the summons.
9. Accordingly, both he and his father gave evidence. Having given Mr Gleeson leave to cross-examine each of these witnesses, I readily accepted their sworn evidence that they were neither intimidated by nor petrified of Mr Nikolic. Both appeared to me to give frank unguarded evidence. I also accepted Mr Mark Zahra's evidence that he had never been offered a bribe by Mr Nikolic. Mr Gleeson sought to further cross-examine Mr Mark Zahra on his denials and a confidential 'in camera' discussion ensued. I did not permit the further examination and gave oral reasons for not doing so.
10. There was no evidence before me which could lead me to draw unfavourable conclusions linking Mr Nikolic to race fixing, match fixing, intent to circumvent anti-money laundering rules, or any other such conduct.
11. I emphasise that Mr Nikolic has never been convicted of an offence against the rules of racing or a criminal offence to do with gaming or gambling matters.
12. I make no findings whatsoever against Mr Nikolic of impropriety connected with gaming. I note that Mr Gleeson did not suggest otherwise in his closing submissions.
13. Any other finding would have had obvious enduring ramifications directly impacting on Mr Nikolic's ability to work as a jockey

1. I was asked, by Racing Victoria, to examine Mr Nikolic's conduct when he was working in Hong Kong in 2007 and Mauritius in 2009.
2. Whilst in Hong Kong, Mr Nikolic recalled that he got into a government vehicle which he was not authorised to do and that ultimately the vehicle was damaged. He denied, in his evidence before me, being charged with criminal damage and assault arising from the incident.
3. Mr Nikolic agreed, under cross-examination, that he may also have been suspended and fined whilst working in Mauritius. He thought that it was he who terminated the contract, but agreed he was unable to ride in Mauritius after an incident involving another jockey in Mauritius.
4. I did not place great weight on these matters. Time has passed. The facts are not clear. Nevertheless I was concerned that Mr Nikolic had, during his time in each of these countries drawn negative attention to himself

(h) current attitudes towards officials of Racing Victoria

1. Under cross-examination, Mr Nikolic agreed to the proposition that he considered the Chief Steward to be corrupt. He also agreed with the proposition put to him that he considers Mr Brown, the Executive General Manager of Integrity Services and possibly Mr Robinson, an investigator within the integrity unit, to be corrupt.
2. Mr Burnside contended that Mr Nikolic was unfairly led into giving the evidence.
3. I accept that Mr Nikolic has never before publicly stated that he considers the Chief Steward (or any other officials within Racing Victoria) to be corrupt. Nevertheless he did not shy away from the proposition. He not only agreed with it on a number of occasions but did so vehemently, and added his own detailed explanations for why he held the belief. He further volunteered that he believed Mr Bailey had regularly perjured himself.
4. Mr Nikolic did not strike me as a witness easily led into giving evidence with which he did not agree. He frequently dismissed and contradicted assertions put to him under cross-examination with which he did not agree. He did not do so in relation to this matter.
5. He has now, no matter how it was brought about, through his evidence stated that he does consider that various senior officials within Racing Victoria are corrupt and/or dishonest.

1. Racing Victoria sought to tender 32 newspaper articles through the witness statement of Mr Bailey, a further 28 through the witness statement of Mr Alf Matthews, and a further collection of about 90 articles appended to submissions.
2. Mr Gleeson submitted that one of the ways of adducing evidence as to reputation is to introduce evidence from the mainstream media. He conceded that one article would be insufficient in persuading me that it could be probative to the issue of Mr Nikolic's reputation. However, he said the reams of articles in the mainstream media that refer to Mr Nikolic went to the issue of what people think Mr Nikolic's character is; which could be informed by the many mainstream media articles.
3. I agreed with the submissions of Mr Burnside that Mr Nikolic's reputation could not be proven in this way. Racing Victoria offered no evidence to support the unsubstantiated and unattributed gossip in the newspaper articles.

1. When asked by Mr Burnside whether he would be prepared to work with Mr Nikolic in the future, Mr Bailey went to far as to say that if Mr Nikolic were to return to racing, the position would be an untenable one. After further questioning, he said he could not work with Mr Nikolic. Mr Burnside criticised Mr Bailey and asked me to find that his evidence was tainted by an animus toward Mr Nikolic and that Mr Bailey's attitude reflects worse on him than it does on Mr Nikolic. I do not agree.
2. While it may have been gracious for Mr Bailey, under cross-examination, to say he would attempt to work with Mr Nikolic, it would not have been particularly convincing evidence. Mr Bailey has been subjected to tirades of abuse by Mr Nikolic; he has felt threatened by Mr Nikolic. He sat through Mr Nikolic's evidence (regardless of how it came about) in which Mr Nikolic repeatedly accepted the proposition that he viewed Mr Bailey as corrupt. He revisited the words spoken by Mr Nikolic, to him, during the course of their relationship. It is hardly surprising in these circumstances that Mr Bailey, when pushed by Mr Burnside on the point, ultimately stated that he could not and would not work with Mr Nikolic.
3. I accept that Mr Bailey believes that he could not work with Mr Nikolic if Mr Nikolic returned to racing

1. I will address, very briefly, a number of other matters that arose in the proceeding.
2. Racing Victoria contended that, because Mr Nikolic had only read a draft of his witness statement before adopting its contents as true and correct, and that errors had been revealed in it, that I should not rely upon the balance of it as reliable evidence. That was a broad-brush statement which did not assist me. Mr Nikolic gave evidence before me over a four-day period, covering in great detail the relevant matters covered by his statement.

1. Some debate erupted over whether or not I should place weight on the original decision of Racing Victoria, dated 22 September 2015. In the end, the debate has been of no consequence. I have arrived at my own decision based on the material before me, without particular regard to the original decision.

1. Mr Nikolic emphasised that, between the years 2009 to 2013, he operated under extreme stress because of the breakdown of his marriage and access issues to his daughter. He said that he was under investigation for extremely serious racing integrity matters for which he was later exonerated including the "Smoking Aces" and "Betfair" Inquiries; his father-in-law was murdered and he was portrayed in the media as a suspect; and extensive adverse media coverage. He said:

I found the stress and publicity surrounding the murder of my ex-father-in-law and the other matters very difficult to cope with. During this period I began acting differently. I was dealing with events in an angry way and with a very short temper.

1. Mr Nikolic gave evidence that he is committed to undertaking his role as a jockey, honestly and to the best of his knowledge and ability; he said that he has reflected on his previous infractions, expressed remorse and contrition and has taken a number of steps of his own volition, including psychological counselling to ensure he will act appropriately in the future. Mr Nikolic said:

I am better qualified to handle the situation after I've spent a serious amount of time on the sidelines and had plenty of counselling and learned to look at things from a different perspective.

1. Mr Burnside contended that Mr Nikolic has now undertaken significant counselling, is in a new relationship and has the endorsement of many in the racing industry.
2. I heard evidence about the counselling engaged in by Mr Nikolic and received into evidence various clinical notes. Following discussion, I made orders under the Open Courts Act 2013 prohibiting the publication of any of the details of the clinical notes which were the subject of confidential exhibits C and E or any matters arising from those clinical notes.
3. Mr Nikolic has seen three different counsellors. He was referred by lawyers to each of the counsellors in preparation for various legal proceedings. Mr Nikolic gave evidence that he derived very little benefit from the first two.
4. In his submissions, Mr Burnside also described the involvement of each as minor and relatively unimportant. It would be difficult in these circumstances to find that they had significantly assisted Mr Nikolic.

1. I heard evidence that, in mid-2015, Mr Nikolic travelled to Sydney to consult a stress and anger management expert, Ms Odelia Carmon. He gave evidence that she greatly assisted him to identify triggers and develop new coping mechanisms for managing high stress and anger situations.
2. The evidence was unclear as to how often Mr Nikolic consulted with Ms Carmon.
3. Initially, Mr Nikolic gave evidence that he had consulted with her probably half a dozen to eight times. He said some of the consultations were over Skype; some were phone calls. At the time of the hearing, Mr Nikolic had not seen her for several months. The reason for first consulting with her, in approximately mid 2015 was, he said, in preparation for these proceedings. Later in his evidence, Mr Nikolic said he had spent countless hours with Ms Carmon consisting of three or four face-to-face visits and numerous telephone calls.
4. Ms Carmon did not give evidence.
5. I heard evidence from Consulting Forensic Psychiatrist, Dr Samson Roberts, who had prepared a report, dated 9 February 2016, for the purposes of this hearing.
6. Dr Roberts stated in his report that he had, amongst other things taken, into account the report of Odelia Carmon, dated 23 January 2016.
7. Dr Roberts reported that :

Mr Nikolic currently sees a counsellor, Odelia Carmon... He has had two face-to-face consultations and three telephone consultations. He spoke positively of the effects of this therapy. He spoke of the adverse impact of being out of the workforce. He stated that he misses being busy as he likes routine. He did not describe the persistence of depressive symptomatology.

1. The report of Dr Carmon was not appended to Dr Roberts' report. Mr Gleeson, in these circumstances, objected to the admissibility of Dr Robert's report and evidence. Mr Gleeson contended that Dr Roberts, not being the treating psychiatrist, had relied to some considerable extent on the report of a treater. He contended that it was not possible for Racing Victoria to properly explore the basis of Dr Roberts' opinion. He expressed concerns that Dr Roberts had not kept a copy of Ms Carmon's report. Mr Gleeson nevertheless continued his cross-examination of Dr Roberts under cover of that objection. Mr Burnside contended that it was clear from the report that Dr Roberts drew most of his information from his discussion with Mr Nikolic.
2. I accepted that there was nothing untoward about Dr Roberts not retaining the treater's report. I accepted the evidence of Dr Roberts that it is his usual practice to only retain such documents for a limited period of time unless advised that they needed to be retained.
3. I was prepared to accept the report into evidence, noting the limitations identified by Mr Gleeson.
4. In the report, Dr Roberts provided background history and explored some of the factual matters the subject of these proceedings. In the summary and opinion he said:

Having regard to the totality of the information available at the time of the preparation of this report, it is evident that Mr Nikolic found himself to be the subject of certain accusations levelled at him by racing authorities, some of which culminated in formal charges and some of which were the subject of adverse publicity in the media. Having regard for Mr Nikolic's account, it is his belief that the circumstances in which he found himself arose as a result of personal conflict with Mr Bailey and with others in position of authority within the racing industry.

It would appear from the report and with the benefit of hindsight and the passage of time, he has come to acknowledge that an attitude of self-righteous pride and a propensity to speak his mind, has served him poorly in the past. He expressed the opinion that an attitude of humility, reserve and deference to authority would protect him from coming into conflict with authority in the future. He expressed remorse regarding his previous conduct and the adverse impact that it has had on his standing within the racing industry and his career.

From a psychiatric perspective, it is evident that Mr Nikolic suffered an episode of depressive illness in the period subsequent to the demise of his marriage approximately five years ago. He described a degree of impairment arising as a result of features of his depressive illness. A Major Depressive Disorder of the nature and severity described by Mr Nikolic is typically associated with a decline in interpersonal functioning and irritability. It is also typically associated with compromised judgement, interpersonal sensitivity, irritability, volatility and relative indifference to consequence. In the absence of a contemporaneous assessment of Mr Nikolic's mental state from that time, the extent of the psychiatric compromise cannot be determined with certainty. However Mr Nikolic's psychiatric condition would inevitably adversely impact upon his functioning to some degree

At the time of his attendance for assessment, Mr Nikolic described enduring remission with respect to his depressive symptomatology, having remained compliant with antidepressant medication. He expressed insight into his conduct of the past. His description of his personality style included in an account reflective of a strong sense of pride and a strong work ethic. He described commitment to family and close friends. There was no material identified to suggest the presence of personality pathology. Specifically features that could be construed to reflect personality style predisposed to disregard for rules, disdain for authority or a tendency to criminality were not identified.

Having considered the available information with respect to Mr Nikolic, no psychiatric basis could be identified to suggest that he is compromised with respect to his ability to comply with rules or demonstrate defiance toward persons in position of authority. No psychiatric basis was identified to suggest that Mr Nikolic might pose a risk toward the welfare and safety of Racing Victoria staff, other riders and participants.

Notwithstanding my psychiatric impression with respect to Mr Nikolic, it is expected that he will continue to benefit from psychological support derived from his current counsellor, in particular during the process of reintegrating himself into the racing industry from which he has been absent for some time.

1. Dr Roberts considered that Mr Nikolic was currently psychiatrically well.
2. Dr Roberts reported:

There was no material presented to suggest perceptual disturbance, delusional thinking or disorder of thought form as would indicate the presence of a psychotic condition.

1. Dr Roberts was cross-examined in relation to this opinion. He said:

It's very challenging for a person suffering a depressive condition to sustain an interview of one hour without revealing features of the depressive condition and it does take considerable effort for a person with a depressive condition to masquerade as well but it is not unheard of.....it would take a considerable effort to present as well is Mr Nikolic presented.

1. He also opined that there was nothing about Mr Nikolic to suggest that he would be compromised, with respect to his ability to comply with his obligations, if he were to be relicensed.
2. Dr Roberts felt that Mr Nikolic had shown insight into the inappropriateness of his previous interactions with the Racing Victoria senior officials, with whom he had had difficulties previously. He reported that Mr Nikolic understood that a repeat of such behaviour would very significantly impact on his prospects of ever having anything to do with racing again. Dr Roberts formed the impression that Mr Nikolic was more constrained, and more motivated to be constrained, than he had been in the past.
3. Under cross-examination, Dr Roberts did agree with the proposition that if Mr Nikolic were to be exposed to stressful situations, or situations of conflict with the Chief Steward, that this would potentially present a significant challenge to his self-control. However, he clarified the answer by saying that:

If the assumption is made that Mr Nikolic's depressive condition contributed to his inability, intolerance, impulsivity and aggression, then if he were to suffer a relapse of his depressive condition, his ability to manage a challenging confrontation with another person would be compromised.

1. There were a number of issues however that concerned me.
2. I was concerned that Dr Roberts gave evidence that, during his one hour consultation with Mr Nikolic, he had not challenged Mr Nikolic on any of his factual assertions.
3. Dr Roberts detailed in his report what he had been told by Mr Nikolic about the factual matters before the Tribunal.
4. In relation to the 4 September 2012 matters involving Mr Bailey, Dr Roberts reported that Mr Nikolic:

Went on to explain that at Seymour in 2012, on the way to the barriers, Mr Nikolic was trotting with a clerk. He engaged in banter with Mr Bailey in response to which Mr Bailey asked 'am I supposed to be threatened by you?'

1. Mr Nikolic also described the incident involving Mr Hadley:

He said that "during the course of the VCAT hearing, Wade Hadley, a racing official from Tasmania, gave evidence. After the hearing, Mr Hadley passed Mr Nikolic who acknowledged having said to him "you're a disgrace"...

1. Mr Nikolic stated that he was penalised for having made the threat to Mr Hadley as referred to above.
2. I considered that in recounting facts to Dr Roberts, Mr Nikolic significantly downplayed these incidents. It was clear from the cross-examination that Dr Roberts had only been told very limited information.
3. Conversely, Mr Nikolic spent significant time during his consultation with Dr Roberts in detailing the perceived wrongs against him at the hands of Mr Bailey.
4. Dr Roberts agreed in his evidence that an assessment is only as good as the material upon which it is based. Under cross-examination, Dr Roberts agreed that the Bailey and Hadley incidents revealed Mr Nikolic to have been engaged in far more violently aggressive verbal confrontations with each of these men than he had indicated to Dr Roberts.
5. I was concerned that Dr Robert's assessment may have been tarnished by Mr Nikolic's limited self-reporting.
6. It seemed to me that Mr Nikolic had attempted to portray himself in a better light to Dr Roberts
7. Dr Roberts also partly based his opinion on the incorrect assumption that Mr Nikolic continued to take medication. Mr Nikolic had taken himself off his prescribed medication in order to re-achieve his riding weight. Dr Roberts understood, at the time of writing his report, that Mr Nikolic was taking an antidepressant and that he had been encouraged to remain on it by his general practitioner.
8. Dr Roberts was not unduly concerned about the failure to take medication and gave evidence that in the natural trajectory of a mental illness, it should have remitted by now. He felt that if there was no relapse at this point in time this would give confidence that it may have been in order for Mr Nikolic to go off his medication.
9. I was nevertheless concerned that Mr Nikolic had chosen to take himself off his medication in circumstances where Mr Nikolic gave evidence that Ms Carmon thought it was a good thing for him to stay on it. He said that he had only recently come off it after a few years with changed doses. Mr Nikolic said he came off the medication because he was trying to drop more weight and the medication keeps him a bit heavier and makes him retain fluid and dulls his memory
10. I accept that during this period Mr Nikolic was suffering from a depressive illness which in the words of Dr Roberts, "may have adversely impacted upon his functioning to some extent."
11. Dr Roberts was appropriately guarded in his observations, and I remain unclear as to the extent to which I can attribute Mr Nikolic's conduct to stress and his depressive illness. I accept that Mr Nikolic was under extreme stress. Individually, any one of the stressors described by him would have a serious impact on an individual. The culmination was no doubt extremely challenging. I accept that the stress he was under played a role in his behaviour during this period. He had not, in his previous years as a successful jockey, regularly conducted himself in quite this manner. There had been nothing exceptional about Mr Nikolic's conduct in the preceding years.
12. Mr Nikolic has not however undertaken what I would regard as extensive counselling. Some of the counselling he did undertake, he found unhelpful. The counsellor with whom he describes having a very positive relationship did not give evidence, nor was I shown report from her. I was not prepared to go as far as to draw a Jones v Dunkel inference in relation to the report of Ms Carmon, as Mr Gleeson invited me to do. I was nevertheless surprised by the submission of Mr Burnside that calling the treating psychologist would not be necessary or useful to the Tribunal. Frequently, in these type of matters, treating psychologists give very helpful evidence into how an individual is travelling. I did not have the benefit of hearing from any treating psychologist.
13. It did not appear to me that Mr Nikolic attended counsellors because he "wanted help". Rather he was driven to attend for counselling as part of his preparation for Court or tribunal appearances. That of course does not always matter. It sometimes takes such prompting for an individual to start to see the need for change. Nevertheless I note that, even though Dr Roberts opined that Mr Nikolic would benefit from ongoing psychological support, he has not continued to engage with the counsellor.

1. I read a significant number of references from jockeys, trainers, owners. The bundle of references included a reference from Mr O'Keefe, who as head of the Jockeys' Association, wrote on behalf of its directors as follows:

The VJA's role is multifaceted, but a key part is to represent the interests of jockeys in this state in their dealings with various RV departments, including its Integrity Services Department and Licensing Department.

We understand that RV refused Mr Nikolic's application to be relicensed and that, as a result, Mr Nikolic has made application to VCAT to review that decision.

I can confirm the position taken by the directors of the VJA is that they endorse Mr Nikolic's application to be relicensed as a jockey in Victoria, on the basis that he has completed the penalty imposed on him. The directors are unaware of any matters that should now preclude him from being relicensed as a jockey by RV.

In addition, my directors, a number of whom are active jockeys, have confirmed that it is their belief that relicensing Mr Nikolic would not pose a risk to the welfare and safety of other riders.

As Executive Officer of this Association for 11 years, I have known and observed Mr Nikolic during that time. I am also of the belief that relicensing Mr Nikolic would not pose a risk to the welfare and safety of his fellow riders and therefore I also endorse his application to be relicensed.

1. I also read a reference from Mr Lalor who was a former Chairman of Stewards. He wrote that in his time as Chief Steward he that he did not have any problems with Mr Nikolic and was not aware of other stewards having problems with him.
2. All of the other referees similarly spoke in support of Mr Nikolic's application for a licence. None expressed a concern for their own safety or the safety of others.
3. I accepted from reading the references that there are many people in the industry who admire Mr Nikolic's skill as a rider and wish to see him riding again. I also accept that he has, in this regard, offered a great deal to the industry over the years. I similarly accept, from reading the references, that Mr Nikolic has made close friends with and earned the respect of other jockeys, trainers and owners alike. I accept that he has acted as a mentor for younger riders.
4. I did not, however, hear evidence from any of the authors of the written references. Most made very broad statements about Mr Nikolic's positive general reputation within the industry and the desire of many to have him back riding.
5. Whilst I appreciate the time taken by the referees to write to the Tribunal, the letters on the whole lacked detail or substance, other than that referred to above.
6. Some authors, for example, did not appear to know any of the detail of the matters before me, such that it was difficult to place much weight on their assertions

Good reputation, character and fit and proper person tests

1. In order to be licensed as a jockey, I need to be satisfied that Mr Nikolic meets the character requirements of the Policy and the intention to ride requirement of the Policy.
2. Integrity in racing and the maintenance of the public perception of the integrity of racing are relevant considerations to the decision-making exercise.
3. In Racing Victoria Ltd v Riley [2016] VSCA 230 at [1] the Court of Appeal said:

Horse racing in Australia is a highly regulated industry. This is hardly surprising, given the high level of public interest and participation and the consequent need to maintain public confidence in the industry. As has long been recognised, regulation is necessary both to ensure fair and open competition in racing and to maintain the health and well-being of horses and their jockeys.

1. There are no two cases exactly alike and each case must be determined on its own merits following an objective examination of the material facts.

1. In Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35, (18 February 2011), Newnes JA, with whom Pullen and Buss JJA agreed, stated at [28] in the context of the expression 'good character and repute' :

The expression "good character and repute" itself involves two discrete elements. While "good character" does not have a precise meaning, it ordinarily refers to a person's moral qualities (whether known to others or not) as opposed to the estimations in which (fairly or unfairly) the person is held by others, that is, their repute.

1. The expression "fit and proper" person is widely used in the regulation of various vocations. The test was laid down in Hughes v Vale (1955 ) [1955] HCA 28; 93 CLR 127 (Hughes & Vale) at 156- 157 per Dixon CJ, McTiernan and Webb JJ.:

... To give the widest scope for judgement and indeed for rejection. ""fit (or "idoneous") with respect to an office is said to involve three things honesty knowledge and ability ("honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it" - Coke.

1. It is clear from the authorities that the test of a "fit and proper person" must depend, in each case, on the purpose of the legislation under which the test is being applied. An understanding of the statutory objectives and evaluation of the ability of an individual to discharge the responsibilities of a particular licence is what is required.
2. Unfitness may be demonstrated by an individual's conduct within a vocation, but is not necessarily restricted in this way. Conduct in an individual's personal life may also lead to the conclusion that he or she is not a fit and proper person to engage in a particular vocation.

1. Racing Victoria contends that there has been widespread media publicity surrounding Mr Nikolic, which provides a substantial evidentiary basis for the conclusion that Mr Nikolic does not enjoy a good reputation. It submits that I have before me no evidence as to a positive reputation and that Mr Nikolic's reputation is unarguably tarnished by the media publicity, including allegations of high-profile thoroughbred race fixing and recent NRL match fixing allegations. Racing Victoria encouraged me to take the press articles into account.
2. Racing Victoria further contends that the existence of exclusion orders is relevant to Mr Nikolic's reputation and the question of whether he is a fit and proper person to hold a jockey licence and ride in races in Victoria.
3. Racing Victoria seeks to rely on the facts underlying Mr Nikolic's criminal convictions and various findings of guilt against him to provide objective insight into his character. Racing Victoria contends that the disciplinary incidents involving Mr Nikolic also support this conclusion. Racing Victoria submits that Mr Nikolic has a history of violent, intimidating and aggressive conduct which extends beyond the racing industry. Racing Victoria submits that these facts compel the conclusion that he is not a person of good character or a fit and proper person to participate in the industry. Racing Victoria stresses that I can learn about Mr Nikolic's likely future conduct by looking to his previous conduct.
4. Mr Nikolic submitted that his reputation cannot be assessed by media articles. He contends that saying something publicly does not and cannot, of itself, establish reputation. No evidence, he said, was led before me, to establish whether the articles were accepted and believed by readers or whether the readers formed an adverse view as to his general reputation. Mr Nikolic contends that Racing Victoria has not offered any evidence to support the unsubstantiated and unattributed gossip in newspapers concerning him.
5. Mr Nikolic accuses Racing Victoria of making assertions about his reputation, without offering direct evidence to support the assertions other than hearsay. He criticises the fact that the assertions were based on unverified newspaper reports based on unnamed third sources or speculative opinion.
6. Mr Nikolic further contends that the making of the exclusion orders is irrelevant to my decision. He contends that a discretion exercised by the Chief Commissioner (or delegate) is not a finding of fact which it would be appropriate for me to use in reaching my conclusions.
7. Mr Nikolic contends that he is of good character. He emphasises that he has maintained a successful and decorated career in the racing industry since 1990. He contends that his disciplinary antecedents are mostly misdemeanours spread over a career of over 20 years and that his criminal history is not a serious one. He has attended counselling to assist him and will not make such errors again. A number of personal pressures, unsubstantiated serious allegations and negative media speculation placed him under enormous pressure at the time of his negative conduct. He has a number of references from within the racing industry, all supportive of his application.
8. Mr Nikolic emphasised that I should consider whether he is currently of good reputation and character and a fit and proper person. Past wrongs, I was told, do not determine the question.
9. Mr Burnside submitted that there was no evidence before me of current behavioural problems. He has not transgressed any boundaries in recent years and is well aware that all eyes would be upon him if he returned to racing. He has a great deal to lose if he reverts to his previous form.
10. Mr Nikolic contends that I must look to the man before me today to make my decision.

1. Ultimately I am satisfied that the correct and preferable decision in this case is that I should affirm the decision of Racing Victoria to refuse to grant Mr Nikolic a jockey's licence. In doing so I acknowledge that it is an enormous decision to refuse to grant a licence to so accomplished a jockey. The industry arguably loses much in my doing so. Mr Nikolic is unable to participate in the career of his choice. However there are too many factors which weigh against Mr Nikolic's application, the combination of which lead me to conclude that he is not a person of good reputation and character and a fit and proper person to hold a licence to ride.
2. I have a degree of sympathy for Mr Nikolic and his circumstances in recent years. I fully accept that he was under enormous stress as a result of serious allegations of race fixing. He has never been found guilty of any such incidents. His former father-in-law was murdered and he found himself the subject of intense media and public scrutiny. He has never been charged with anything to do with that murder. He suffered a difficult marriage breakdown. He apparently had some personal financial pressures. He was generally under media coverage.
3. Although these matters contextualise the circumstances of much of Mr Nikolic's conduct, they cannot completely excuse it. They also cannot turn back time.
4. Racing Victoria is responsible for the administration and control of thoroughbred racing in Victoria. It is an activity that has a substantial public profile and involvement. Integrity at every level of racing is a matter of vital public interest. Maintaining that integrity and the appearance of integrity, is the responsibility of Racing Victoria.
5. It is not appropriate for Racing Victoria to grant a licence to ride to an individual who:

- has an extensive disciplinary record in which he has refused to follow directions; disobeyed rules; swore at various individuals within the racing industry including but not limited to stewards;

- has acted in a rude and disrespectful manner during stewards inquiries;

- lied giving evidence before the RAD Board; lied giving evidence before this tribunal and intimidated a witness giving evidence before this tribunal.

- has a criminal history both of violent behaviour and disregarding apprehended violence orders

- is excluded from crown casino under an exclusion order

- is excluded from race meetings under an exclusion order

- has stated publicly that he believes the chief steward of Racing Victoria and other senior officials to be corrupt; and

- has placed the head steward in a position where he does not believe he could work with Mr Nikolic

1. The nature, role and responsibilities of a jockey would bring Mr Nikolic into contact with stewards. His previous record of positive engagement with stewards, has now been overtaken by many negative engagements (particularly with, but not limited to the Chief Steward).
2. A fit and proper person to ride in race day events must be willing to follow the direction of the stewards. I am not satisfied that Mr Nikolic would be so willing.
3. Mr Nikolic's demonstrated inability to obey lawful direction and authority is in direct conflict with the steward's role in officiating jockeys riding in races. Mr Nikolic's disciplinary record does not stem from an isolated instance, but occurred over an extended period of time.
4. The ability of stewards to confidently conduct race meetings without intimidation, threats and/or abuse from participants in those race meetings is paramount to the integrity of racing.
5. The race day is a day like no other. Decisions which may ultimately prove to go the heart of racing's integrity, sometimes need to be made quickly. They will not always be popular decisions. It is the environment in which jockeys are forced to operate. It is not appropriate conduct to be rude and disrespectful during Stewards' Inquiries to the extent that they have to be aborted.
6. It is not appropriate for an individual who seeks to be licensed, to lie during the course of disciplinary proceedings, in order to have himself viewed in a better light. Once again, the integrity of racing is brought into question in these circumstances.
7. It is not appropriate for an individual who seeks to be licensed to ride in races to have a violent criminal history, or a history of disregard for Court orders.
8. I am concerned that Mr Nikolic now has an unenviable criminal record in addition to his disciplinary record. He has had numerous relevant altercations with a range of different people. He had "shown his teeth" to stewards, a car park official; another jockey, police, members of the public and family members.
9. Mr Nikolic contends that the criminal incidents are unrelated to racing. He contends that minor physical altercations which did not result in serious injury to the victims, non-violent breaches of an Intervention and Apprehended Violence order, a drink-driving charge and minor shop theft, are not relevant to whether he is a suitable person to hold a licence to ride.
10. There is some force in the argument that less weight should be attached to offences which occurred in an individual's private life, unless a real nexus can be drawn between those offences and the holding of the licence to ride. I am not however in the circumstances of this case, prepared to ignore or quarantine Mr Nikolic's behaviour; isolating his behaviour in the racing environment from his behaviour outside the racing industry. I am satisfied that the behaviour shows a consistency of conduct which is reflective of the character of Mr Nikolic.
11. There is a troubling theme which makes all of these matters relevant to his career as a jockey and permeates many of those events - namely Mr Nikolic's seeming inability or unwillingness to accept the will of those around him. Mr Nikolic has demonstrated that he reacts poorly when incidents happen which do not accord with his want or desire. He has demonstrated an inability to follow directions with which he does not agree. He has demonstrated a willingness to take matters into his own hands when things are not running his way.
12. It is impossible to ignore the fact that Mr Nikolic has had unfortunate confrontations in almost all aspects of his life.
13. I consider that the existence of both the Casino Exclusion order and the Racecourse Exclusion order also negatively affect Mr Nikolic's application.
14. The Racecourse Exclusion order, in particular, is directly relevant to the very industry in which Mr Nikolic seeks to participate. It would be a most unusual situation to have a licensed jockey, excluded from race courses. To grant a licence in the circumstances in which particularly the Racecourse Exclusion order was made, would bring into question the integrity of racing.
15. The fact of the exclusion order forms part of my overall consideration that Mr Nikolic is not a suitable person to hold a jockey licence at this point in time. I accept the submissions made on behalf of Racing Victoria that such an order made by the Deputy Commissioner of Police would have to negatively impact on Mr Nikolic's reputation within the racing community and the public at large.
16. The statements of the Deputy Commissioner were properly characterised by Racing Victoria, as the observations and opinions of another person. Whilst not determinative of the relevant facts, I agreed with Racing Victoria's submission that I could take them into account, particularly in light of the position and status of the person making the observations and expressing the views as being one of Victoria's most senior serving police officers. It was also submitted that I should take into account the basis upon which he made some of his observations being credible protected information and that the consequences for the reputation of Mr Nikolic were accordingly highly damaging.
17. Mr Burnside submitted that the exclusion order was irrelevant but that, if I found it to be determinative, I should await the outcome of the appeal process before delivering my determination in this matter. It is not appropriate that I defer my decision. The exclusion orders have been but one of the many factors leading me to conclude that Mr Nikolic is not a suitable person to hold a jockey licence and forms part of the overall context in which I must consider whether Mr Nikolic is a suitable person to hold a jockey licence.
18. Whether Mr Nikolic was led into it or not, he has repeatedly in evidence stated his belief that the Chief Steward is corrupt. He has also stated his belief that he considers other senior officials to be corrupt.
19. Mr Nikolic accordingly does not accept the validity or integrity of the very organisation from whom he seeks a licence.
20. It is difficult to contemplate a person holding such strong views toward head officials in the industry in which he wishes to participate as being a fit and proper person to do so.
21. When considering the perception of the integrity of racing, I have no doubt that his comments would be detrimental.
22. I agree with the submissions of Racing Victoria that Mr Nikolic's evidence in this regard placed Racing Victorian a very difficult position. Any decisions made by, particularly the Chief Steward, will potentially have an appearance of being affected by the relationship between the men.
23. I accept that the Chief Steward, Mr Bailey, has with good reason stated that he could not work with Mr Nikolic. This is also an untenable situation.
24. The evidence would not of itself be sufficient reason to found basis to consider Mr Nikolic is not meeting the probity requirements to be licensed. However I am satisfied that Mr Nikolic has through his conduct, forced Mr Bailey, a senior official within Racing Victoria, into this position.
25. I have not been persuaded that Mr Nikolic has changed.
26. I accept that he has sought some professional assistance and engaged in some self-reflection. I have not however been persuaded that the limited counselling he engaged in with Ms Carmon is a sufficient guard against any further such conduct. I am mindful of the fact that Mr Nikolic did not find the rest of the counselling to be very helpful.
27. Whilst Mr Nikolic frequently in his evidence acknowledged that he had behaved badly, there were very few occasions where Mr Nikolic accepted full responsibility for his conduct. Most of his responses were peppered with justifications for his conduct. He frequently attributed blame (in varying degrees) to others involved in the relevant incident. He blamed others for "starting incidents" or "provoking him" or "treating him unfairly or unjustly".
28. In this context I was unable to positively find that Mr Nikolic has developed sufficient insight into his previous misdemeanours to confidently say they will not be repeated.
29. The triggers for Mr Nikolic's conduct were sometimes when he felt aggrieved at decisions made by others, or when he felt picked on or harshly treated. Other times, the triggers were less clear - when he is pushed for time or the needs of others do not meet his needs, or when someone is in the wrong place at the wrong time.
30. Although Mr Nikolic gave evidence that he would walk away from, or avoid, such incidents, I did not find his evidence convincing. Many of the matters which arise on a race day are unforeseen, but need to be dealt with immediately. They may have grave consequences. It may not be open to Mr Nikolic to simply walk away.
31. Mr Nikolic has demonstrated, over a lengthy period of time, an inability to control his impulses; both within his place of work and outside of it. In the absence of persuasive evidence, that he now has a battery of tools to deal with daily pressures, I am left with great uncertainty as to whether if Mr Nikolic were to resume the stresses inherent in a riding career, he would not return to his previous form.
32. I am not satisfied that Mr Nikolic has addressed the issues which led him to behave in the manner in which he behaved, both within the racing environment and outside the racing environment.
33. I was asked to look to Mr Nikolic's impressive conduct and self-control in the witness box. There is no doubt that Mr Nikolic presented calmly. This however did not assist me. He had no reason to behave otherwise.
34. I was asked to consider that there has been a significant passage of time since many of the incidents the subject of these proceedings took place. There has been some passage of time. However the incidents occurred over a protracted period of time. They were not isolated incidents. They were not one-offs. In these circumstances, I am not persuaded that the passage of time, in and of itself, can lead me to conclude that Mr Nikolic is a changed man.
35. In any event, Mr Nikolic's antipathy to those in authority was expressed as recently as during the hearing. Mr Nikolic still considers himself a victim. He views various officials within Racing Victoria in an exceedingly poor light. I am not persuaded that Mr Nikolic would abide by directions given by the stewards, particularly, the Chief Steward. His negativity towards the Chief Steward has not in any way diminished. If anything, it has cemented.
36. I was asked to take into account the fact that Mr Nikolic has served his punishments and suspensions for his various infractions.
37. This is of course true. But each penalty was based on different considerations, not in contemplation of the myriad of matters before me. The question as to whether or not to license an individual is quite different from a determination as to the appropriate penalty to impose following a particular infraction. Whilst a relatively low penalty may be imposed for individual infractions, when it comes to re-licensing an individual, these matters rear their head again. The issue of a licence involves different considerations to the imposition of a penalty.
38. Given the difficult and stressful environment in which a licensed jockey is required to perform, I am not satisfied that Mr Nikolic would not repeat the type of conduct he previously engaged in.
39. There is an absence of evidence to enable me to conclude that Mr Nikolic has changed. There is an absence of evidence to enable me to conclude that Mr Nikolic's attitude to those in authority has altered. There is evidence to suggest that it has not.
40. I accept that Mr Nikolic does enjoy a good reputation amongst some of those who were prepared to submit references on his behalf from within the Racing industry. Nevertheless those references were insufficient to sway the balance in Mr Nikolic's favour.
41. Having determined that Mr Nikolic is not an appropriate person to receive a grant of a licence to ride, I do not need to determine whether he intends to ride regularly in Victoria. Nevertheless, for the sake of completeness, I briefly address this point.

Rule 3(g)

1. Racing Victoria submitted that Mr Nikolic could not be granted a licence because he does not satisfy the requirements set out in rule 3(g) of the Policy that he intends to ride in Victorian races on a regular basis.
2. Racing Victoria emphasises the interpretation of the word "regularly" and invited me to interpret this as meaning the same as the word "frequently". I accept "regularly" has its natural meaning. I consider the word implies more than "never" or "occasionally", but in my opinion, in the context of the Policy, falls short of "frequently". In the modern climate, in which the Policy was written, jockeys will ride in many jurisdictions. It cannot have been the intention of the Policy to restrict the modern jockey from doing so.
3. I was satisfied that Mr Nikolic has sufficient intention to ride regularly in Victoria if re-licensed in order to meet the intention to ride requirements of 3(g). Although his evidence oscillated on this point, it was ultimately clear to me that if offered work in Victoria, he would accept it. I accept that, although he intends to be based in Queensland, he would travel to Victoria. I accept that no jockey knows for certain where they will get the most rides. Mr Nikolic, given his recent history would probably be less certain than other jockeys.

[1] See Nikolic v Chief Commissioner of Police (no 2) 2016 VSC 333