Riley v Racing Appeals Tribunal [2001] VSC 259

I reimpose the penalty of two years disqualification.

31. By the Master's Order, the Order of the Tribunal was stayed, subject to further order, until 4 pm on 17 May 2001, and on that date, Master Kings extended the stay until the determination of this proceeding.

34. The grounds contained in the Master's Order, on which it was sought to review the decision, are inconsistently numbered and oddly set out, and adopt inconsistent and inaccurate terminology. However, if I have correctly understood the written submissions of both counsel, the numbering system, setting out and terminology adopted below correctly convey the intent of the Order. On that basis, the grounds may be read as follows:

1. The Tribunal denied the applicant procedural fairness by:

(a) admitting into evidence the transcript of the proceedings before the stewards as truth of its contents;

(i) without hearing the applicant on the question as to whether leave should be granted pursuant to section 83M(8) of the Act to admit other than oral evidence;

(ii) without hearing the applicant as to whether evidence should be admitted;

(iii) considering that it was not bound by the rules of evidence with respect to the contents of the transcript contrary to section 83M;

(iv) without warning the applicant that it would be relying on the contents of the transcript so admitted as evidence of opinion in the absence of making an order under the Act.

(b) admitting the statement of steward Mr Brewer and acting on it as evidence notwithstanding it had no jurisdiction so to do as

(i) the Tribunal was prevented from so doing under section 83M(8)(b) of the Act;

(ii) there was no leave granted under section 83M(8)(a) of the Act.

2. The findings by the Tribunal of guilt and the penalty imposed were unreasonable.

47. At the hearing the applicant applied to amend the Master's Order by including the additional grounds of review set out below, that application having been made initially to Master Kings on 17 May 2001 and referred by her to the Judge who was to hear the review. The text of those proposed additional grounds has been taken from the written submissions to this Court of counsel for the applicant. The text has not been altered here save for renumbering to follow on from the numbering of the grounds included in the Master's Order, and punctuation. On that basis the proposed additional grounds read:

3. The Tribunal misconstrued the nature of its appellate function amounting to an error as to jurisdiction.

4. The Tribunal failed to comply with audi alterem partem in that it failed to hear the applicant as to:

(a) applicability of Weissensteiner v R to the facts, in comparison to the submissions of the second respondent;

(b) the acceptance of the opinion of Mr Gleeson as to the qualification of the witness to give the evidence or raising the matter with the applicant;

(c) the acceptance of the opinion of Mr Bill Brewer, given at the stewards' inquiry who was not called before the Tribunal without explanation given by the second respondent.

5. The Tribunal displayed ostensible bias against the applicant by:

(a) His Honour Judge Nixon being a member of the VRC being the controlling body under [the Act], such body responsible for the conduct of the stewards it employed, as such was a judge in his own cause;

(b) failing to declare the interest referred to above;

(c) failing to hear the plaintiff on the matters referred to in paragraph [4] herein and as to the matters referred to in the order of the Master;

(d) failing to require the stewards of the controlling body to give the applicant particulars of the charge;

(e) ruling that the submission of the applicant that natural justice was denied the applicant at the stewards' inquiry was "unfounded as it was inaccurate" when the conduct of the controlling body's stewards denied the applicant:

(i) any reason for its decision to find the applicant guilty;

(iii) any information the [sic] as to the case he had to meet;

6. The Tribunal denied the applicant natural justice when it failed to require the second respondent to give particulars of the charge.

7. The Tribunal erred as to its jurisdiction in admitting statements made at the stewards' inquiry and treating such statements as sworn evidence notwithstanding all statements at the inquiry were unsworn.

8. The Tribunal's finding that the principle of the right to silence had no application in an alleged breach of the Rules of Racing was an error of law on the face of the record.

9. The use by the Tribunal against the applicant of his exercise of his right to silence prior to the stewards' inquiry constituted prohibited reasoning and as such was an error of law on the face of the record.

69. It was agreed (subject to a formal objection by Mr Forrest, for the respondent, that the grounds in question had no weight) that the application for leave to add those grounds should be dealt with at the same time as the grounds themselves.

73. Evidence was put before the Court in the affidavits, with exhibits, of the applicant, of Mr Poulton, the solicitor for the stewards, and of Mr Sullivan, membership manager of the VRC. Pursuant to leave given, a further affidavit sworn by Mr Campbell, Registrar of the Tribunal, with one exhibit, was filed after the conclusion of the hearing. The solicitor for the applicant indicated to the Court that his client did not wish to make any submissions in relation to that further affidavit.

76. The applicant has at all relevant times been a licensed racehorse trainer, licensed pursuant to the Rules of Racing of the VRC which are constituted by the Australian Rules and the Local Rules, Rules of Betting and Regulations of the VRC, and are hereafter referred to as "the VRC Rules". It is important that in his application for a licence to train, signed on 27 May 2000, the applicant acknowledged that:

. . . any Licence or Permit which may be issued to me is subject to the following conditions:

(a) That it may be revoked at any time by the Committee of the [VRC] in accordance with the Rules of Racing of the said Club.

(b) That I shall be bound at all times by the said Rules and By-Laws of the said Club.

(f) That I agree to open my stables for inspection at any reasonable time to an authorised Official or Steward of the [VRC].

84. On 10 November 2000, four employees of the VRC, being two stewards, an investigator and a detective, attended the applicant's stables at Moorooduc in order to pursue inquiries in relation to a drug irregularity returned by a racehorse trained by the applicant. In the course of inspecting the stables they found an electric apparatus ("the apparatus") in a cupboard in a tack room. The apparatus consisted of two spurs, each linked separately by a long insulated wire to a small battery-operated device, which was linked by a third long insulated wire to a remote switch.

87. An inquiry into the discovery of the apparatus was convened by the stewards, conducted by a panel of five of their number, namely Mr Gleeson as Chairman and Messrs Sharp, Bill Brewer, Cram and McGinley, who sat on 17 November 2000, 4 December 2000 and 8 January 2001**.** It is convenient to note here that Mr Bill Brewer is so designated to avoid confusion with Mr Ivan Brewer of counsel, who represented the applicant on the third day of the stewards' inquiry, at the Tribunal hearing, and as junior counsel before the Court.

90. Towards the end of the proceedings on 4 December 2000 the applicant was charged in the terms set out in paragraph 6 above, and his assistant trainer, Mr Cosgriff, was charged with a similar offence as assistant trainer. Both were found guilty as charged and, after submissions as to penalty, both were disqualified for two years. Both appealed to the Tribunal.

93. On 19 February 2001 Judge Nixon, constituting the Tribunal, held a directions hearing at which the applicant was represented by Mr Ivan Brewer and Mr Cosgriff represented himself. The appeal was heard by Judge Nixon, with Mr Downey and Mrs Carlyon as advisers, on 10 and 11 April 2001. Mr Ivan Brewer appeared for the applicant and Mr Gillespie-Jones of counsel for Mr Cosgriff. Mr Forrest QC and Mr Bracken of counsel appeared for the stewards. The decision of the Tribunal was delivered on 18 April, and the Tribunal directed that the disqualifications take effect from midnight on that day. Mr Cosgriff is not a party to the present proceeding.

96. The applicant's evidence in his defence before the Tribunal, as set out in his affidavit sworn on 20 April 2001, was that he had never seen the apparatus before 10 November 2000. He said that he had been told of its existence at the end of June 2000 by Mr Cosgriff, who had found it when moving from a shared stable at Caulfield Racecourse to the stables currently occupied by the applicant at Moorooduc. He had instructed Mr Cosgriff to dispose of the device and had assumed that that had been done. Mr Cosgriff gave evidence consistent with that evidence, and further that he had placed the apparatus in a chaff bag to be taken to Moorooduc but on arriving at Moorooduc he had been unable to find it and had assumed that it had been thrown out with the rubbish. The Tribunal disbelieved that evidence of the applicant and Mr Cosgriff.

101. The relevant provisions of section 83M of the Act read as follows:

(1) Subject to this Part and any regulations made hereunder, the Tribunal--

(b) is not bound by formal rules and practices as to evidence, but may inform itself as to any matter in such manner as it thinks fit.

(a) be held at such place and time as is determined by the Tribunal, save that it shall be held in public; and

(b) be by way of rehearing unless the Tribunal otherwise directs.

(a) shall be given orally unless the Tribunal has given leave to allow the evidence to be given in writing or partly orally and partly in writing; and

(b) shall be given on oath unless the law permits that evidence to be given on affirmation or by declaration instead of on oath.

(9) The Chairman and Deputy Chairmen are hereby empowered to administer an oath or, as the case may be, to take and receive an affirmation or declaration for the purpose of receiving evidence.

116. At the outset of the Tribunal hearing, counsel for the stewards, in opening, tendered the transcript of the proceeding at the stewards' inquiry ("the stewards' transcript"), which was accepted into evidence over the objection of counsel for both appellants. As I understood him, the principal complaint of Mr Gillespie-Jones under this head was that the stewards' transcript contained an unsworn statement from Mr Bill Brewer, one of the panel of stewards conducting the inquiry, to the effect that he had tested the apparatus and "it had a kick like a mule" and that it could be inferred from that statement that the apparatus was "capable of affecting the performance of a horse in a race or training gallop" in terms of Rule 175(hh). That evidence, in the submission of Mr Gillespie-Jones, was not admissible because it was unsworn when given at the stewards' inquiry, and the stewards' transcript when accepted into evidence by the Tribunal was not given orally or supported by any sworn evidence as required by section 83M(8).

119. That submission turns on the assumption that it was necessary for the stewards to satisfy the Tribunal that the apparatus was "capable of affecting the performance of a horse in a race or training gallop", and that that state of satisfaction must be reached on the basis of admissible evidence.

122. Section 83H of the Act requires that the Chairman of the Tribunal be a duly qualified legal practitioner of no less than seven years' standing. That is the only qualification prescribed for the Chairman, who is not required to have any knowledge of racing. However, section 83I provides for the formation of a panel of advisers, each of whom is to have, in the Minister's opinion, sound knowledge of at least one of the three principal racing codes to which the Act applies, namely horse racing, harness racing and greyhound racing. And section 83L, already referred to, requires that the Chairman, constituting the Tribunal, shall sit with two advisers appointed by the Minister from the panel. It has not been suggested in this case that the two advisers who sat with Judge Nixon did not have sound knowledge of horse racing.

125. Given that structure, it is clear that the Tribunal is intended by Parliament to be an expert tribunal, analogous to the tribunal described in the well-known passage from the judgment of Stephen J in Spurling v Development Underwriting (Vic.) Pty. Ltd. [1973] VicRp 1; (1973) VR 1 at 11, which reads:

In approaching the decision of an expert tribunal I must, I think, not only refrain from making up my own mind on the evidence before it, must not only confine myself to inquiring whether on any reasonable view of the evidence the [Town Planning Appeals] Tribunal's decision on a question of fact can be supported, but must also bear in mind that I am concerned with areas in which members of the Tribunal have special expertise and experience which the legislation plainly intends them to employ. I must, therefore, be slow to conclude that on no reasonable view could this Tribunal decide a particular matter of fact as it has.

. . . the essence of an expert tribunal is that it is expected to some extent to bring to bear its own expertise; . . .

130. It should be noted in this context that section 83NA of the Act specifically limits the jurisdiction of this Court to hear certain proceedings where the Tribunal has jurisdiction; which again indicates the intention of Parliament that such proceedings shall be dealt with by a body with "special expertise and experience" which the body is "intended to employ".

133. Rules 8 to 10 of the Australian Rules and 9-17 of the Local Rules, as well as a number of later Rules of the VRC Rules set out at considerable length the powers and duties of the stewards. I am satisfied from those provisions that the qualities required of persons who are to exercise those powers and perform those duties are such that a panel of stewards, conducting an inquiry pursuant to the VRC Rules, also constitute an expert tribunal with special expertise and experience in matters concerning horse racing.

136. There is considerable authority consistent with that view. In the case of R v Brewer; Ex parte Renzella [1973] VicRp 36; [1973] VR 375 Adam J at 380 accepted the concession of counsel that the stewards conducting an inquiry "are entitled, nay bound, to act upon their own personal observations as part of the evidence before their inquiry". In Calvin v Carr [1979] UKPC 1; [1980] AC 574 at 596 the Privy Council, on an appeal from the Supreme Court of New South Wales, but speaking generally of the "reality" of horse racing, referred to the stewards being "entitled to use the evidence of their eyes and their experience".

139. In a different context, in Australian Football League v Carlton Football Club Ltd [1998] 2 VR 546, Hayne JA said at 569, speaking of the AFL Tribunal:

. . . in my view the members of the tribunal may bring to their deliberations whatever expert knowledge they may have about football.

It does not follow, however, from the conclusions which I have just expressed that the tribunal cannot bring to account its own knowledge concerning matters of general application in the world of football.

145. I am satisfied accordingly that the panel of stewards conducting the inquiry were, as an expert tribunal, entitled to be satisfied on the basis of the unsworn observations of Mr Bill Brewer, one of their own number, as well as their own expertise and experience, that the apparatus was "capable of affecting the performance of a horse in a race or training gallop" in terms of Rule 175(hh). And further, that the Tribunal, also an expert tribunal, was entitled to accept that finding of the stewards on the basis of the expertise and experience of the two advisers, without requiring it to be supported by evidence given on oath.

148. However, in case I am wrong in that, I turn to consider the effect of sub-sections (1), (2) and (8) of section 83M of the Act. Sub-section (2) provides that the appeal is to be by way of rehearing unless the Tribunal otherwise directs. Mason J in Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 at 621, considering the effect of such a provision, began by saying:

Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect.

Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing.

How far fresh evidence will be received, in the absence of statutory provision and subject to considerations of fairness, reasonableness and justice, depends upon the procedure of the court to which the appeal lies.

The Tribunal stated in this case that the hearing being conducted by it was a rehearing, not a hearing de novo.

157. In my view, sub-section 83M(8) is a relevant statutory provision which serves as an indication that the legislative intent is that the rehearing shall be conducted upon the evidence which was before the stewards, but with a power to admit fresh evidence (as would be the case in a hearing de novo). Sub-section (1), a provision of a kind very common in legislation establishing tribunals (see for example section 98(1) Victorian Civil and Administrative Tribunal Act 1998, and section 33(1) Administrative Appeals Tribunal Act 1975 (Cth)) empowered the Tribunal, if it thought fit, to admit the transcript of the hearing below, appropriately for a rehearing, and to do so without requiring formal proof of that document. Sub-section (8), on the other hand, prescribes the manner in which any fresh evidence, not before the stewards, is to be put before the Tribunal, and in so doing indicates the legislative intent to which I have referred. Extensive oral evidence was in fact received by the Tribunal, and the witnesses were sworn.

160. Mr Gillespie-Jones, for the applicant, submitted that sub-section (8) overrode sub-section (1) so that, despite the provisions of sub-section (1), all evidence before the Tribunal should be given orally and on oath, in terms of sub-section (8). However, to accept that proposition would be to render section 83M(1)(b) meaningless. The section was enacted as a whole, with a number of other relevant provisions, by the Racing (Amendment) Act 1983, the enactment which established the Tribunal, and has not been amended. To remove sub-section (1)(b) would go far towards negating the purpose of those provisions of the Act which concern the establishment and operation of the Tribunal. That purpose would appear to be to establish an expert tribunal, with the powers normally conferred upon tribunals, as opposed to courts, to hear appeals from decisions of the VRC as controlling body or of the stewards (see sections 83F and 83K).

163. I would, with respect, adopt the following passage from the judgment of Winneke CJ in Norton v Long [1968] VicRp 23; [1968] VR 221 at 223:

The principles of statutory interpretation governing a case of this kind are, in my opinion, conveniently stated in the decision of the Privy Council in Pye v Minister for Lands (NSW), [1954] 1 WLR 1410, at p. 1423; [1954] 3 All ER 514, at p. 524. Lord Normand, delivering the judgment of the Board, there said: "In approaching their decision their Lordships have borne in mind the warning contained in Magor and St. Mellons Rural District Council v Newport Corporation, [1952] AC 189; [1951] 2 All ER 839, that the duty of the court is limited to interpreting the words used by the legislature and it has no power to fill in any gaps disclosed, but in the meaning which they have put upon the Act as now framed their Lordships have refrained from adopting any such course and have confined themselves strictly to interpretation."

In reaching a conclusion as to the meaning to be placed upon an Act of Parliament, it must always be remembered, as Lord Dunedin said in Murray v Inland Revenue Commissioners, [1918] AC 541, at p. 553: "It is our duty to make what we can of statutes, knowing that they are meant to be operative and not inept, and nothing short of impossibility should in my judgment allow a judge to declare a statute unworkable."

A similar view was expressed by Lord Simon in Nokes v Doncaster Amalgamated Collieries Ltd, [1940] AC 1014, at p. 1022; [1940] 3 All ER 549, at p. 554, in the words: "If the choice is between two interpretations the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result." . . .

In seeking to ascertain and declare the intention of the legislature, the court is of course limited to such intention as is disclosed by the words used in the Act. If there is a possible interpretation that would render the Act inoperative or inept in any substantial degree and another interpretation that would give it operation and effect, the Court should construe it ut res magis valeat quam pereat and adopt the latter interpretation unless the words of the enactment are too intractable to permit such course to be followed.

170. On the basis set out in paragraph 30 above, I find that section 83M(8) does not govern the manner in which the stewards' transcript should be placed before the Tribunal. There was no denial of procedural fairness in admitting that transcript into evidence, including as it did the unsworn statement of Mr Bill Brewer as to the effect of the apparatus. The Tribunal was entitled to admit the stewards' transcript by virtue of section 83M(1), without reference to section 83M(8).

173. The statement of Mr Bill Brewer was not the only evidence before the Tribunal as to the effect of the apparatus. Oral evidence as to the manner of its operation was given by Mr Gleeson, who had been the chairman of the stewards' inquiry. He was asked at the conclusion of examination in chief whether anyone who had had an involvement in racing would have any doubt as to what they were dealing with, having seen the apparatus, and replied "No doubt whatsoever".

176. Further, it was not submitted for the applicant at any stage, either before the stewards or before the Tribunal, that the apparatus did not have the capability claimed for it. The applicant's father, brother, grandfather and great grandfather were or are trainers. He was apprenticed as a jockey in 1977 and has been a licensed trainer since 1989. He clearly has considerable experience of the racing industry. The statement of Mr Bill Brewer which is in question was made not only when the applicant was present, but in response to a question from the applicant. Had the applicant held the view that the apparatus did not have the claimed capability, relevant evidence would no doubt have been called and submissions to that effect would no doubt have been made. His defence, as set out in paragraph 18 above, was that he had never seen the apparatus, had told Mr Cosgriff to dispose of it, and had assumed that this had been done. That defence is consistent with a knowledge of the capability of an apparatus of the kind in question. The terms in which he said that he had directed Mr Cosgriff could be described as vehement. He agreed in cross-examination that he knew at that time that possession of the apparatus was contrary to the VRC Rules, and that having it on his premises could jeopardise his licence.

179. An issue which was not raised before the Tribunal, and which, had it been raised, could have been the subject of further evidence, is not available to be raised in this Court. The justification for that principle, set out in Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 per Gibbs CJ, Wilson, Brennan, and Dawson JJ, is as relevant to an appeal from the Tribunal to this Court as it is in the context where it there arose. Their Honours said at 7-8:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. . . . The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this court has firmly maintained the principle that the point cannot be taken afterwards. . . .

In our opinion, no distinction is to be drawn in the application of these principles between an intermediate court of appeal and an ultimate court of appeal.

At 8 they cited with approval the summary by the Court of Appeal of New South Wales in the matter before them as to the relevant principles:

[T]he finality of litigation; the difficulty of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance, keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court.

And see the extensive discussion of relevant authorities by Tadgell J in Geelong Building Society v Encel [1996] VicRp 44; [1996] 1 VR 594 at 604 and following. There were no exceptional circumstances (see University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483) to justify an exception to this principle. The applicant was represented by experienced counsel and had, as has been said, considerable experience of the racing industry.

191. As to the finding of guilt, I understood the essential submission of Mr Gillespie-Jones to be that no reasonable tribunal could have found the applicant guilty of the charge on the basis of admissible evidence; and that the evidence on which the Tribunal relied as to the capability of the apparatus was inadmissible on the basis set out in ground 1. I have already found that not to be the case, and further, that the Tribunal, like the panel of stewards, was an expert Tribunal, and was entitled to rely on the knowledge of the advisers on such a matter.

194. Mr Gillespie-Jones's submission on the question of penalty appeared to be that because the penalty would fall hard on the applicant and on other people, including his employees and members of his family, this case required strict proof. That is essentially the same submission as to admissibility as that with which I have already dealt. He did not attempt to submit that the penalty was, of itself, inappropriate.

201. As I have said, the Tribunal stated, consistently with section 83M(2), that the hearing before it was a re-hearing and not a hearing de novo, and it did not exercise its discretion to direct otherwise. It did, as it was entitled to do on a rehearing, hear evidence other than that which had been put before the stewards (see paragraph 30 above). None of this involved a misconstruction of its appellate function.

204. Mr Gillespie-Jones submitted that because of the peculiar characteristics of the stewards' inquiry, it was unlikely to produce a record that would form the basis for a subsequent review. In this context he relied upon the absence of a right of legal representation, the absence of a requirement to comply with the rules of evidence, the fact that no reasons were given for the decision as to fact or penalty, and the fact that the stewards who decided the case conducted the cross-examination of the applicant and framed the charge.

207. Those characteristics of a stewards' inquiry were considered by Adam J in R v Brewer; Ex parte Renzella (see paragraph 26 above) where his Honour said at 381:

As it is their duty after inquiry to find the charges sustained or otherwise, and if sustained also to impose an appropriate punishment, we are presented under the rules with a tribunal of a character radically different from that of an ordinary court of law, but required to exercise powers of a similar nature. It is clearly quite contrary to the ordinary concept of a fair trial that the judge should also have acted in the role of a policeman and made personal observations on the very matters to be adjudicated upon, that he should himself be the accuser, that he should himself be, as in many instances here must be the case, the principal witness for the prosecution, and entitled, if persuaded by the accuracy of his own personal observations, to act on such evidence, whatever evidence to the contrary may be adduced.

That the stewards should be empowered to adjudicate under such circumstances offends many of the more elementary rules of natural justice, the rule, for example, that a judge must not be a judge in his own cause and must be in a position to make a detached and impartial adjudication. In substance, the only requirements of natural justice unaffected by the rules relating to the stewards and their inquiry, because not therein dealt with, are that the stewards must give adequate notice to a person charged of the precise charges against him, and a fair opportunity after hearing the evidence against him of making his defence thereto.

Before I part with this matter, I wish to make one or two short observations lest it be thought that I intended to be critical, from the legal point of view, of the racing rules affecting stewards' inquiries and their apparent disregard of principles of natural justice.

From the evidence before me and from decisions cited to me from other countries, it is evident that the relevant rules of racing of the VRC relating to stewards' inquiries are in a common and universally accepted form. Furthermore, that the form taken by such inquiries appears readily enough justified as a matter of practical necessity as being conducive to the interests of well-organised racing if, as usually must be the case, the inquiry should be held expeditiously, and the stewards, of whom three at least must act, are to be in a position to take prompt action based on their personal observation of what happens at the race meeting which it is their responsibility to control. Great powers are vested in the stewards, but obviously they are chosen because of their responsibility as persons capable of controlling racing.

Much of the criticism which might otherwise have been levelled at the racing rules in connexion with stewards' inquiries and their apparent disregard of some of the rules of natural justice lose force when it is found that the rules of racing do not treat the proceedings at the stewards' inquiry as final, but give ample opportunity for appeals by way of rehearing to racing committees in which the stewards are but witnesses, and in no sense judges in their cause.

That decision, of course, predates the establishment of the Tribunal by the Racing (Amendment) Act 1983, but the system of stewards' inquiries there described has not changed. See also Calvin v Carr (paragraph 26 above) at pages 596-597.

217. The judgment of Adam J in Renzella was specifically approved by Gray J in Sellen v The Victorian Amateur Turf Club (unreported, decided on 15 June 1988). His Honour said at 15a, after quoting extensively from Renzella:

What emerges from the judgment of Adam J is that a person who voluntarily submits to the Rules of Racing must accept that transgressions alleged against him will be dealt with in accordance with the long-standing practice of stewards, which is authorised by the Rules. Racing is a sport in which sharp practice is not unknown. The stewards have the unenviable duty of endeavouring to ensure that the sport is conducted fairly. Prompt action will often be required. Enquiries will have to be undertaken in circumstances of urgency. In such cases, adherence to legal niceties is likely to prove an impediment to the attainment of justice. If, in a particular case, an injustice stems from the special nature of the enquiry, a right to a full re-hearing before an independent tribunal is provided by law.

For the appellant's voluntary submission to the VRC Rules, see paragraph 13 above.

222. On appeal (sub. tit. Sellen v Gleeson & Ors, unreported, decided on 5 October 1989), the Full Court, constituted by McGarvie, Beach and Hampel JJ, said at 23-24:

There is no substance in the complaint that the Stewards have acted and are acting as investigators, prosecutors, fact finders and decision makers. The Stewards perform these combined roles because they are acting in accordance with the practice of Stewards and in accordance with the rules which the learned primary judge held to be binding on the appellant. The departures by Stewards from the practices of natural justice which would be expected, for example, of a court, are a consequence of those stringent practices being excluded by reason of the nature of the tribunal, the nature of the inquiry, the nature of the power being exercised and the applicable rules. Compare R v Brewer, Ex parte Renzella [1973] VicRp 36; [1973] VR 375.

226. Parliament, in establishing the Tribunal, can be taken to have been aware of the characteristics of a stewards' inquiry, and of the authorities to which I have referred, and to have decided that an appeal by way of rehearing was the appropriate procedure for review of the decisions of those inquiries. As to the likelihood of production of a reviewable record, the stewards' transcript was before the Tribunal and before this Court, and indeed was relied on extensively by counsel for the applicant.

229. Leave to raise ground 3 is granted and the ground fails.

233. As to ground 4(a), Mr Ivan Brewer represented the applicant before the Tribunal and made submissions as to the applicability of Weissensteiner v R [1993] HCA 65; (1993) 178 CLR 217. There is no indication in the transcript that the Tribunal "failed to hear the applicant" on that matter, and I say no more about it.

236. The principal submission of Mr Gillespie-Jones under this head appeared to be that the Tribunal should have informed the applicant, during the hearing, of which parts of the evidence in the stewards' transcript it proposed to rely upon in reaching its decision; and in particular that it proposed to rely on the evidence of Mr Gleeson and the statement of Mr Bill Brewer, referred to above in paragraphs 34 and 20 respectively.

239. In support of that submission Mr Gillespie-Jones relied upon various cases which he submitted established that "a judge should not stay silent having drawn the conclusions that are apparent from his reasons". None of those cases is authority for that proposition.

242. Three of the cases in question (Brand v Parson [1994] VicRp 17; [1994] 1 VR 252, Fagioli v Ure (1996) 85 A Crim R 504 and Flynn v DPP [1998] 1 VR 322) related to the duty of a judge hearing an appeal against sentence, and who contemplates an increase in the sentence, to warn the accused of that possibility; a principle which has no application to this case. Three other cases (R v Duong [1998] 4 VR 68, R v Downie and Dandy [1998] 2 VR 517 and R v Li [1998] 1 VR 637) related to the duty of a judge, who proposes to take into account material which is not part of the evidence before the court, to put that material to the relevant party and give that party an opportunity to respond to it. In Wajnberg v Raynor & Board of Works [1971] VicRp 82; [1971] VR 665 McInerney J applied that principle to a tribunal empowered to "inform itself in such manner as it thinks fit". There is no suggestion in the present case that the Tribunal relied on any material which was not before it.

245. Charles JA in R v Palmieri [1998] 1 VR 486 at 498 cited with approval a passage from the judgment of Lamer J in Brouillard v R (1985) 17 CCC (3rd) 193 which reads:

We now not only accept that a judge may intervene in the adversarial debate but also believe that it is sometimes essential for him to do so for justice in fact to be done. Thus a judge may and sometimes must ask witnesses questions, interrupt them in their testimony and if necessary call them to order.

That passage has no relevance to the proposition which Mr Gillespie-Jones seeks to establish. Further, it was cited by Charles JA in the context of an ultimate finding that the judge whose sentence was under appeal had, during the plea hearing, "crossed the border of permissible intervention and adopted an excessively inquisitorial role in the proceedings".

250. Brennan, Deane and Gaudron JJ in Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 571 referred to the desirability of a trial judge making known during the hearing "his or her views about the issues, problems and technical difficulties involved in the case" but went on in the next paragraph, not cited to me by Mr Gillespie-Jones, to speak of the "ill-defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular medical witnesses could threaten the appearance of impartial justice".

253. There was no obligation on the Tribunal to advise the parties, during the hearing, that it proposed to rely on one or other passage in the evidence. It was for the Tribunal to reach its findings on the basis of the whole of the evidence before it. The parties and their representatives were aware of what was before the Tribunal and were in a position to call their own evidence and make their own submissions in response to that material. The issues of the expertise of the stewards and the admissibility of the statement of Mr Bill Brewer have already been dealt with (see paragraphs 25, 28 and 33 above).

256. Leave to raise ground 4, omitting 4(a), is granted and that ground fails.

260. Deane J set out the test of apprehended (or ostensible) bias in the following terms in Webb v R [1994] HCA 30; (1994) 181 CLR 41 at 67:

In a series of recent cases, the Court has formulated the test to be applied in this country in determining whether a judicial officer ("a judge") is disqualified by reason of the appearance of bias, as distinct from proved actual bias. That test, as so formulated, is whether, in all the circumstances a fair-minded lay observer with knowledge of the material objective facts "might entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question" in issue. . . . the test is an objective one and the standard to be observed in its application is that of a hypothetical fair-minded and informed lay observer. That being so, it is convenient to frame the test itself in terms of reasonable apprehension on the part of that particular inhabitant of the common law.

Mason CJ and McHugh J at 53 and Brennan J at 57 referred to "a fair-minded and informed member of the public".

265. In Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2000) 75 ALJR 982 the High Court, constituted by Gleeson CJ, Gaudron and Gummow JJ, had cause to consider the applicability to tribunal proceedings of the rule as to apprehended bias. Their Honours said at [5] with citations added:

It was held in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52 that administrative decisions may be reviewed in this Court for failure to observe the rules of natural justice. Further, it was accepted in Minister for Immigration and Multicultural Affairs v Jia (2001)75 ALJR 679 . . . that such a failure would extend to cases in which apprehended bias is established. However, the rule with respect to apprehended bias, as it has developed in relation to the judicial process, is not based solely on the concept of natural justice. Its development is also referable to the need to maintain confidence in the judicial process. Thus, the rule as to apprehended bias, when applied outside the judicial system, must take account of the different nature of the body or tribunal whose decision is in issue and the different character of its proceedings. Moreover - and on this the parties are in substantial agreement - regard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject-matter with which the decision is concerned.

The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the [Refugee Review] Tribunal, proceedings are held in private.

Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.

Though the test in administrative proceedings, as in curial proceedings, is, in our view, one of objective possibility, the non-curial nature of the body or tribunal in question and the different character of the proceedings must, as already indicated, be taken into account. In the present case, a significant difference between curial proceedings and the proceedings of the [Refugee Review] Tribunal is that the former are adversarial and the parties are usually legally represented, whereas the latter are inquisitorial in nature and the parties are not represented.

273. There can be no doubt that the decisions of the Tribunal are reviewable on the ground of apprehended bias. The proceedings of the Tribunal are required to be held in public (section 83M(2)(a) of the Act) and it is apparent from the material before me that its proceedings are adversarial, and that the parties are represented before it; or at least that that was so in the appeal with which I am concerned. To that extent, the Tribunal has more in common with a court that does the Refugee Review Tribunal. Nevertheless, there are several "significant differences between curial proceedings and the proceedings of the Tribunal". As I have already found, the Tribunal is constituted as an expert tribunal, with all that that implies. It "is not bound by formal rules and practices as to evidence, but may inform itself as to any matter in such manner as it thinks fit" (section 83M(1)(b) of the Act). And in considering an appeal from the decision of a stewards' inquiry, it must be mindful of the unusual nature of such an inquiry, as set out in the passage from the judgments of Adam J in Renzella, and Gray J and the Full Court in Sellen, cited in paragraphs 43 to 45 above. It is appropriate therefore that the submissions for the applicant on the issue of apprehended bias be considered against that background.

276. The submission of Mr Gillespie-Jones was that there were three principal reasons why the hypothetical lay observer might think that Judge Nixon, as a member of the VRC, might not bring an impartial mind to the resolution of the question to be decided, that is, the appeal of the applicant against the findings of the stewards' inquiry. First, the VRC was the employer of the stewards. Second, his Honour did not disclose his membership at the hearing before the Tribunal. Third, at the conclusion of the reasons, after stating his decision, his Honour said:

I propose to add this, although what I am about to say played no part whatsoever in the decision which I have just announced. In the course of his final submissions Mr Brewer of counsel launched a vitriolic attack on the panel of stewards which conducted the inquiry which followed the finding of the device. In particular the attack seemed to be directed at Mr Des Gleeson, the chairman of stewards and the chairman of the panel.

Mr Brewer alleged, amongst other things, that every notion of fairness and natural justice had been swept aside in the course of the inquiry. In my judgment the attack was as unfounded as it was inaccurate. Those stewards who were present at Moorooduc when the device was found, were not part of the panel at the inquiry. Witnesses who gave evidence at the inquiry did not ask questions of Mr Riley or Mr Cosgriff and in my judgment Mr Gleeson and the members of the panel of stewards conducted the inquiry in a perfectly proper manner.

281. Those three matters appear in grounds 5(a), (b) and (e) of the written submissions of Mr Gillespie-Jones, set out in paragraph 10 above. Ground 5(c) repeats grounds 1, 2 and 4, all of which I have found to fail, and that ground need not be considered further. Ground 5(d) is dealt with at paragraphs 70 and 71 below.

284. Mr Gillespie-Jones also referred to the possibility that Judge Nixon might have received complimentary hospitality from the VRC associated with his position as Chairman of the Tribunal, or might have had private communications with the VRC of a kind which might give rise to an apprehension of bias. If I understood him correctly, his submission was that there would be concern in the mind of the hypothetical lay observer as to the nature of the relationship between Judge Nixon and the VRC. No evidence on these matters was before the Court and I see no reason why any person's membership of any club should, without evidence, give rise to considerations of that nature. I refer to the submission only to dismiss it.

287. Mr Gillespie-Jones indicated that the reason why no submission as to apprehended bias had been made at the Tribunal hearing was that his client was unaware at that time that Judge Nixon was a member of the VRC. The applicant deposes in his affidavit of 14 May 2001:

At the time of the hearing in the tribunal I was unaware that any member of the Tribunal was a member of the [VRC]. I was present throughout the hearing at the Tribunal and at no stage did any member of the Tribunal declare such an interest. Mr John Alducci informed me that His Honour Judge Nixon was a member of the [VRC] on the 2nd May 2001.

I note that the reference to "any member of the Tribunal" is irrelevant, as, for reasons already explained, there was only one member of the Tribunal, namely Judge Nixon.

292. Mr Forrest did not adduce evidence to support his statements to the effect that his Honour had never been involved in the administration of the VRC, and that as a member he was entitled to enter upon the racecourse operated by the VRC, to watch races from the Members' stand at that racecourse and to vote for the VRC committee (the implication being that those were his sole entitlements). I doubt that matters of that kind could be said to be within the knowledge of the hypothetical informed lay observer. He submitted that a person appointed as Chairman or Deputy Chairman of the Tribunal is likely to have an interest in horse racing and a person in Victoria with an interest in horse racing is likely to be a member of the VRC. In support of that submission Mr Sullivan deposed that the VRC has 20,000 members.

295. I have said already that although the Tribunal is an expert tribunal, this status is established by the provision that the Chairman is to sit with two advisers, the Chairman not being required to have any knowledge of horse racing. However, the evidence of Mr Campbell that since the establishment of the Tribunal with effect from 3 January 1984 every Chairman and Deputy Chairman of the Tribunal to date has been a member of the VRC throughout his or her period of service on the Tribunal supports the submission of Mr Forrest. I note, on the other hand, the evidence of Mr Sullivan that Mrs Carlyon, one of the two advisers who sat with Judge Nixon on the occasion with which I am concerned, was a member of the VRC only from 1998 to 1999, although the other adviser, Mr Downey, has been a member since 1963.

298. The hypothetical fair-minded and informed lay observer must be assumed to have some knowledge of horse racing in this State. The VRC has a peculiar status under the Act, which distinguishes it from other clubs in Victoria associated with horse racing. In Part IIIB of the Act, which deals with the Tribunal, section 83F defines "controlling body" as follows:

(a) in the case of horse racing the Victoria Racing Club;

(b) in the case of harness racing the Harness Racing Board; and

(c) in the case of greyhound racing the Greyhound Racing Control Board;

The Harness Racing Board and the Greyhound Racing Control Board are authorities established by the Act. The VRC, however, while it exists independently of the Act, is appointed by the Act as the controlling body of horse racing in Victoria. Mr Forrest no doubt had that situation in mind when he described the VRC as "the paramount [scilicet racing] club in Victoria" without adducing evidence in support or explanation of that statement.

306. Before the establishment of the Tribunal in 1984, the Local Rules of Racing of the VRC provided for an appeal from a stewards' inquiry to be heard by the committee of the VRC (see Vowell v Steele, cited in paragraph 4 above). In that situation, all members of the body hearing the appeal would have had a far closer connection with the VRC than that of mere membership. In a case where the appeal was brought from the stewards of the VRC, as in this case, the committee would have had a much closer relationship with the stewards, as employees of the VRC, than that of a mere member.

309. In Ebner v Official Trustee [2000] HCA 63; (2000) 75 ALJR 277 Gleeson CJ, McHugh, Gummow and Hayne JJ said at 279 of the principle as to apprehension of bias:

Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

Mr Gillespie-Jones did not articulate to my satisfaction any logical connection between Judge Nixon's being one of the 20,000 members of the VRC and the possibility of his deviating from the course of deciding the case on its merits.

314. Having considered the matter, I find that the hypothetical fair-minded and informed lay observer would not reasonably apprehend that, by virtue of his membership of the VRC, Judge Nixon might not have brought an impartial mind to the resolution of the question before him. It follows that neither his Honour's membership of the VRC nor his failure to disclose that membership has any significance in this context.

317. The observations made by his Honour at the close of his reasons, and set out in paragraph 59 above, were made in response to submissions made by counsel for the applicant at the Tribunal hearing, the nature of which appears from those observations. The submissions were made without reference to the passages from Renzella and Sellen cited in paragraphs 43 to 45 above as to the peculiar nature of a stewards' inquiry. His Honour had the stewards' transcript before him and was able to form his own view as to the manner in which the inquiry was conducted. It was appropriate for his Honour, as Chairman of the Tribunal, to express his approval of the conduct of the inquiry, and in no way was it inconsistent with his duty as a tribunal hearing an appeal. Nor could it, in my view, give rise to an apprehension of bias on the part of a fair-minded and informed lay observer.

320. Ground 5(d) is badly expressed. It was not possible for the Tribunal "to require the stewards of the controlling body to give the applicant particulars of the charge". The stewards had completed their inquiry. Presumably what is meant is "to find that the stewards should have given the applicant particulars of the charge".

323. The evidence of Mr Poulton in his affidavit is that neither the applicant, nor Mr Ivan Brewer, who represented the applicant on the third day of the stewards' inquiry, requested particulars of the charge, and no such request was made by Mr Ivan Brewer at the directions hearing on 19 February 2001 or at the Tribunal hearing. The submission of Mr Gillespie-Jones that particulars were sought at the outset of the inquiry does not appear to me to be supported by the transcript. In any case, Mr Gillespie-Jones volunteered in this context that "at the end of the day I don't think I can say that anyone was under any illusion as to what the nature of the charge was, so I don't think it goes anywhere." I note that the stewards, before asking the applicant whether he wished to plead, had asked him whether he understood the nature of the charge and he had agreed that he did. In these circumstances there was no reason for the Tribunal to find that the stewards should have given particulars of the charge, and its failure to do so cannot be regarded as an indication of apprehended bias.

326. Leave to raise grounds 5(a), (b), (d) and (e) is given and those grounds fail.

330. This ground is identical with ground 5(d), save that the claimed circumstance is put as a denial of natural justice rather than an indication of apprehended bias. For the reasons appearing from paragraph 71 above, the failure of the Tribunal to find that the stewards should have given particulars of the charge cannot be regarded as a denial of natural justice. Leave to raise this ground is given and the ground fails.

334. It did not appear to me that Mr Gillespie-Jones made any submissions as to this ground additional to those already made in respect of ground 1. Leave to raise this ground is not given.

338. These grounds are essentially the same. The Tribunal in its reasons said:

Mr Riley, when interviewed at the stables after he had seen himself the device, simply at that time answered "No comment" to relevant questions put to him. I accept the submission by Mr Forrest of Her Majesty's Counsel for the stewards that the principle of the right to silence has no application in a case involving an alleged breach of the Rules of Racing. . . .

But while Mr Riley spoke out about the right to search his property and against the removal of items from his property, he passed up the perfect opportunity to tell the stewards then and there about Mr Cosgriff's failure to dispose of the device as he had, so Mr Riley later claimed, been told to do. Even allowing for the fact that Mr Riley and Mr Cosgriff did not confer while the stewards were at the property, the evidence is that Mr Riley spoke with Mr Cosgriff very shortly after the stewards had departed the property.

He ascertained from Mr Cosgriff what he, Mr Cosgriff, had told the stewards. Yet, with that information at his fingertips and an innocent explanation available to him, he failed to inform the stewards of the phone call until the first day of the inquiry, at which stage he had obtained legal advice which was, of course, his absolute right.

Mr Riley had a number of opportunities to tell the stewards of his innocent explanation before the inquiry opened but he failed to take up any of those opportunities.

345. Mr Gillespie-Jones submitted that the Tribunal "ought to have indicated to the applicant that he was [not going to] apply . . . the right to silence and that he was going to draw an adverse inference on the basis that the silence, if the right, if exercised, would be contrasted with an explanation subsequently proffered." That submission fails for the reasons set out in paragraph 54 above and no more need be said about it.

348. Mr Gillespie-Jones's essential submission was that the Tribunal was not entitled to take into account the initial silence of the applicant when considering the validity of his subsequent explanation, particularly as the credit of the applicant was fundamental to the decision of the Tribunal. The applicant was entitled to remain silent when asked questions the answers to which might tend to incriminate him, and the Tribunal's taking into account the applicant's initial refusal to answer questions from the stewards was a fundamental error of law.

351. He relied on the decisions of the High Court in Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1983) 152 CLR 328, Sorby v The Commonwealth of Australia [1983] HCA 10; (1983) 152 CLR 281 and Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397. Pyneboard related to a requirement to furnish information under the Trade Practices Act 1974 (Cth), Sorby to proceedings before a Royal Commission under the Royal Commissions Act 1902 (Cth), and Morris to proceedings for disciplinary offences under the Police Regulations 1957. While accepting that "the privilege against self-incrimination is inherently capable of applying in non-judicial proceedings" (Mason, Wilson and Dawson JJ in Sorby at 309), the Court in each case decided on the basis of an examination of the relevant legislation and its purpose, whether the privilege enabled a refusal to answer questions asked pursuant to a power in that legislation.

354. Thus in order to determine whether the privilege is available in a specific non-judicial proceeding, it is necessary to consider the circumstances surrounding the putting of the questions which are in issue, and the basis on which they are authorised to be put. The powers of the stewards derive from the VRC Rules. The applicant's agreement to be bound by the VRC Rules appears from paragraph 13 above. Thus the powers of the stewards in relation to his operations as a trainer derive from that agreement by him, and not from any statutory provision. There is no suggestion in any of the cases that the privilege extends to questions asked pursuant to a voluntary consensual arrangement of that kind.

357. Beach J in Vowell v Steele was concerned with the applicability of the Administrative Law Act to the committee of the VRC, hearing an appeal from a stewards' inquiry prior to the establishment of the Tribunal. His assessment of the position of that committee in the context then prevailing is equally applicable to the position of the stewards at the present time. His Honour said at 138:

Its jurisdiction to hear appeals from decisions of the stipendiary stewards is not reinforced by statute. Its jurisdiction to do so, is founded solely on consensual acceptance by those engaged in the various activities connected with horse racing. It is a private arbitral body which derives its jurisdiction from contract. There is no legislation which imposes upon it an obligation to comply with the Rules of Racing. The Rules of Racing which it administers bind not by force of statute, but by force of contract. It exercises its functions according to the Rules of Racing not according to statute. Its decisions, therefore, are not decisions which operate in law.

361. Rules 8B and 8D of the VRC Rules read, so far as relevant:

8B. The stewards shall have the power at any time to enter upon the premises occupied by or under the control of a licensed person and used in any manner in relation to any licence (hereinafter referred to as the premises) to:

(i) Inspect and search the premises and also search any licensed person thereon. . . .

8D. Any licensed person who, whilst the stewards are exercising the powers vested in them by Rule 8B or carrying out their duties, refuses to obey any reasonable direction of stewards or obstructs, hinders or delays stewards in exercising such powers, or carrying out their duties . . . may be punished.

Those provisions authorise the stewards to put questions to the licensed person whose premises are being inspected or searched.

368. The purpose of the VRC Rules appears from the passages from Renzella and Sellen which are cited in paragraphs 43 to 45 above. The need for investigations to be dealt with as a matter of urgency is perceived as a major justification for conferring on the stewards extensive powers of inquiry. That factor alone militates against the availability of the privilege in the context of such an investigation.

371. I find that there was no error of law in the use made by the Tribunal of the applicant's refusal to answer questions put to him by the stewards at the stables. Leave to raise grounds 8 and 9 is given and those grounds fail.

375. The Master's Order will be discharged. Counsel may wish to make submissions as to costs.