(1998) 157 ALR 522
Dawson v Greyhound Racing Victoria [2017] VSC 123
Freeman v The Secretary, Department of Social Security (1988) 19 FCR 342
[1988] FCA 294
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Source
Original judgment source is linked above.
Catchwords
(1998) 157 ALR 522
Dawson v Greyhound Racing Victoria [2017] VSC 123
Freeman v The Secretary, Department of Social Security (1988) 19 FCR 342[1988] FCA 294
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Judgment (2 paragraphs)
[1]
Judgment
This is an application for judicial review of a decision of the Racing Appeals Tribunal of NSW. The Tribunal is the first defendant. It has filed a submitting appearance. Stewards appointed by Harness Racing NSW, the first defendant ("HRNSW"), found the plaintiff guilty of a breach of the Australian Rules of Harness Racing. On 5 April 2019 the plaintiff lodged an appeal with the Tribunal against that decision. On 20 May 2020 the Tribunal granted leave to HRNSW to amend the particulars of the charge. Judicial review is sought in respect of the decision to grant leave.
The plaintiff contends that the Tribunal has no jurisdiction or power to permit an amendment of the particulars of a charge that is the subject of an appeal before it. At the conclusion of the argument I dismissed the plaintiff's summons with costs and reserved my reasons. These are the reasons for those orders.
The decision of which judicial review is sought is interlocutory to the proceedings before the Tribunal. Submissions were made on behalf of HRNSW that the plaintiff's summons should be dismissed in exercise of the Court's discretion, on the basis that there is as yet no "ultimate determination". It was further submitted that sub-ss (3) and (4) of s 69 of the Supreme Court Act 1970 (NSW) are not engaged in relation to the Tribunal's interlocutory decision. HRNSW submitted that the absence of an "ultimate determination" means that the Tribunal's reasons are not part of the record for the purposes of the review and also that relief in the nature of a prerogative writ cannot be granted.
Rather than endeavour to dispose of the summons upon the basis of these preliminary questions I have determined it on the merits of the plaintiff's argument that the Tribunal lacks jurisdiction to allow an amendment. I have taken this course because both parties filed detailed written submissions addressing the merits, with extensive citation of authority. An expression of the Court's conclusion on the issue may be of assistance to the Tribunal in discharging its function in this and other cases.
Until his disqualification by stewards with effect from 1 April 2019 the plaintiff was a stud master; that is, he was in the business of standing a stallion for mating with mares in the breeding of standardbred horses. He has also been an owner of standardbred horses. He was until 1 April 2019 registered with HRNSW as a stud master. HRNSW is a corporation constituted under s 4 of the Harness Racing Act 2009 (NSW), charged by s 9 with the control, supervision and regulation of harness racing in this State.
Pursuant to s 22 of the Harness Racing Act, HRNSW has the power to make rules with respect to a wide range of matters, including the breeding of harness racing horses. In exercise of that power HRNSW has adopted the Australian Rules of Harness Racing. Rule 218 is in these terms:
218 A person having responsibility for the welfare of a horse shall not fail to care for it properly.
In 2018 the plaintiff kept horses and carried on his activities as a stud master at a property named Rosswood Stud near Dubbo. On Friday 16 March 2018 stewards appointed by HRNSW inspected the property and found that a mare named High Rolling Rena had died and appeared to have been in very poor condition leading up to her death. According to information obtained from the plaintiff during the stewards' inspection, the mare had become lame some time before. The plaintiff said that from Wednesday, 14 March 2018 she had laid down and remain immobile and he had erected a shade cloth over her. The plaintiff said he had taken away the shade cloth on Thursday, 15 March 2018. The stewards recorded that the plaintiff said he had proposed to try to raise the animal with a sling. He said he had not sought any veterinary assistance when the mare became lame or at any subsequent time up to the point of death.
On 11 December 2018 the stewards commenced an inquiry in relation to the welfare of horses in the plaintiff's care at Rosswood Stud. During that inquiry they took evidence from the plaintiff and obtained answers that they considered inconsistent with information he had provided in March 2018, including an assertion that the mare may have become ill through ingestion of poisonous foliage and that he had attempted, unsuccessfully, to secure the attendance of a veterinarian. The stewards received a report from a veterinarian named Dr Justus who had examined video footage of the mare after she had died. Dr Justus said that she was "severely under conditioned" and that "substantial earth movement around her legs [suggested] distress before she died".
By letter of 8 January 2019 the stewards notified the plaintiff that following the inquiry they had commenced on 11 December 2018 they had determined that he should be charged under r 218. The letter stated:
Mr Robert Ross you are hereby charged pursuant to AHRR 218 [followed by quotation of the rule]
Particulars of the charge
Under Rule 218 the particulars of the charge are:
You, Mr Robert Ross, the person responsible for the welfare of the horse High Rolling Rena did fail to care for that horse properly in that you failed to ensure that High Rolling Rena received appropriate veterinary care from Wednesday, 14 March 2018 when the horse became incapacitated until its death on Friday, 16 March 2018.
The plaintiff was given an opportunity to answer the charge by written submissions and to attend a formal enquiry if he should so elect. He chose to make written submissions only. On 5 March 2019 the stewards notified the plaintiff that they found the charge proved and invited his submissions on penalty. On 1 April 2019 the stewards determined that he should be disqualified from that date for 2 years and 3 months; that is, up to 30 June 2021.
On 4 April 2019 the plaintiff lodged his notice of appeal with the Tribunal. The Tribunal is constituted under s 5 of the Racing Appeals Tribunal Act 1983 (NSW). The plaintiff's right of appeal from any decision of stewards appointed by HRNSW is provided for in the following section of that Act:
15B Appeals to Tribunal relating to harness racing
(1) Any person who is aggrieved by any of the following decisions may, in accordance with the regulations, appeal against the decision to the Tribunal -
(a) a decision of a harness racing club (within the meaning of the Harness Racing Act 2009),
(b) a decision of a steward of HRNSW.
(2) Any of the following persons or bodies that are aggrieved by a decision of HRNSW may, in accordance with the regulations, appeal against the decision to the Tribunal -
(a) any person,
(b) a harness racing club (within the meaning of the Harness Racing Act 2009).
The nature of an appeal to the Tribunal is specified in s 16 of the Racing Appeals Tribunal Act, as follows:
16 Procedure on appeal
(1) An appeal to the Tribunal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the decision appealed against was made, may be given on the appeal.
(2) Proceedings on an appeal are to be held as in open court before the Tribunal.
The scope of the Tribunal's powers to dispose of an appeal from the HRNSW stewards is provided for in s 17A. Following are relevant extracts from that section:
17A Determination of appeals relating to greyhound racing or harness racing
(1) The Tribunal may do any of the following in respect of an appeal under section 15A or 15B -
(a) dismiss the appeal,
(b) confirm the decision appealed against or vary the decision by substituting any decision that could have been made by the steward, […] or HRNSW (as the case requires),
(c) make such other order in relation to the disposal of the appeal as the Tribunal thinks fit.
(2) The decision of the Tribunal is final and is taken to be a decision of the person or body whose decision is the subject of the appeal.
Section 18 of the Racing Appeals Tribunal Act provides that regulations may be made with respect to, amongst other things, "the procedures to be followed at or in connection with any appeals under this Act" and "any matters incidental to or connected with appeals under this Act". Clauses of the Racing Appeals Tribunal Regulation 2015 that are relevant for present purposes are as follows:
9 Decisions from which an appeal lies to Tribunal
(1) An appeal may be made to the Tribunal under section 15A or 15B of the Act only in respect of a decision -
(a) to disqualify or warn off a person, or
(b) to cancel the registration of, or to refuse to register, a person, or
[…]
(g) to suspend any licence, right or privilege granted under the rules
16 Evidence on appeal
(1) The Tribunal, when hearing an appeal, is not bound by the rules of, or practice as to, evidence but may inform itself of any matter in such manner as it thinks fit.
(2) The Tribunal may require a witness to be examined on oath or affirmation, or may require evidence to be proven by a statutory declaration.
18 Conduct of appeal
(1) The Tribunal may, subject to the Act and this Part, direct the manner in which an appeal is to be conducted.
(2) Without limiting subclause (1), the Tribunal may make directions as to the preparation of the matter for appeal (including directions to the appellant to provide to the Tribunal the names of witnesses who may provide statements, and the nature of any other documents, on which the appellant intends to rely).
The plaintiff's notice of appeal to the Tribunal specifies that his appeal is against both conviction and penalty. It nominates that he wishes to produce evidence additional to that presented to the stewards' inquiry and that he requires at least one steward of HRNSW who participated in the decision appealed from to attend for cross examination at the appeal hearing. On 23 October 2019 the plaintiff filed grounds of appeal. Apart from generally denying the charge, the grounds for the appeal against conviction appearing in this document are as follows:
i At all material times the [plaintiff] took all such appropriate steps to produce a vet to attend upon the animal and treat the said animal.
ii The particularisation is bad in law as inter-alia the conduct complained of was not in the control and/or able to be made manifest by the [plaintiff].
iii The charge is unreasonable in the circumstances of the case.
iv The stewards have not had proper and/or lawful regard to the facts and/or law in the matter.
On 17 April 2020 HRNSW, as respondent to the appeal, applied in writing to the Tribunal for leave to amend the particulars of charge by deleting the words "failed to ensure that High Rolling Rena received appropriate veterinary care" and substituting "failed to take appropriate steps to attempt to obtain veterinary care for High Rolling Rena". The effect of the change may be seen in the following marked up text:
You, Mr Robert Ross, the person responsible for the welfare of the horse High Rolling Rena did fail to care for that horse properly in that you failed to ensure that High Rolling Rena received appropriate veterinary care take appropriate steps to attempt to obtain veterinary care for High Rolling Rena from Wednesday, 14 March 2018 when the horse became incapacitated until its death on Friday, 16 March 2018.
A charge of breach of r 218 can be analysed into its legal elements, dictated by the terms of the rule, and its factual particulars by which the occasion of infringement is specified. There are two legal elements of a breach of r 218:
1. that the person charged was responsible for the welfare of horse and
2. that he failed to care for the horse properly.
The factual particulars of the instance of breach found by the stewards, in the charge as they formulated it, were as follows:
1. the horse for which the plaintiff was responsible was the mare High Rolling Rena;
2. the time and place of the breach was between 14 and 16 March 2018 at Rosswood Stud and
3. the respect in which the plaintiff failed to care for the horse properly was in failing to ensure that it received appropriate veterinary care.
The effect of item (3) was to allege that, in the provision of proper care, the plaintiff was required to "ensure" the provision of veterinary care - which he did not. The only effect of the amendment allowed by the Tribunal is to change this to an allegation that the plaintiff was required to "take appropriate steps to attempt to obtain veterinary care" - which, again, he did not.
The plaintiff seeks declarations that the Tribunal's decision to allow the above amendment of the particulars of charge was "invalid and of no effect" and that the Tribunal "does not have jurisdiction or power to amend or vary, or permit the amendment or variation, of the particulars of a charge" that is the subject of an appeal before it. The plaintiff submits that the absence of power to permit amendment is absolute. He contends that no question arises of examining the extent or significance of the amendment that the Tribunal allowed in this case. He does not accept that an amendment may be allowed up to some limit, such as to a degree that would not change the substance of the allegation of breach that is under appeal. On the plaintiff's case, the proceedings before the Tribunal must be conducted upon the precise words of the charge as it was considered and found proved by the stewards.
In support of these contentions the plaintiff submits that for the Tribunal to allow an amendment of particulars of a charge is "fundamentally inconsistent with the nature of the appeal process" and that:
It is fundamental to the concept of an appeal that it is a challenge to a decision of a subordinate or anterior decision-making body.
It can be accepted that the Tribunal's jurisdiction is limited by its appellate nature. It is a jurisdiction that can only be invoked under s 15B of the Racing Appeals Tribunal Act in relation to "a decision of a harness racing club" or "a decision of a steward of HRNSW". The categories of decisions of those bodies that are appellable are prescribed in reg 9. It follows that when an appeal is instituted and the Tribunal becomes seized of the question that the club or a steward decided, the Tribunal has no authority to embark upon hearing and determining any question that is in substance different from that which the club or steward decided.
With respect to breaches of the Rules, the only power conferred upon the Tribunal under s15B is to hear and determine a charge that has been the subject of a decision of a club or of the stewards. It follows that the Tribunal does not have power to allow an amendment if it would result in the Tribunal hearing a charge that is in substance different from that which the club or stewards found proved. The authorities relied upon by the plaintiff support a limitation upon the power of amendment to this extent.
The plaintiff cited Freeman v The Secretary, Department of Social Security (1988) 19 FCR 342; [1988] FCA 294. In that case the Secretary of the Department had determined that the applicant was no longer eligible to receive a pension and cancelled her entitlement. On an application for review brought in the Administrative Appeals Tribunal of the Commonwealth (AAT) the decision was affirmed. The AAT purported also to find that at the time of its own decision the applicant was eligible to receive the pension, because of changed circumstances. On appeal to the Federal Court Davies J held that the AAT had jurisdiction only to review the Secretary's decision concerning ineligibility at the date of the original decision and had no jurisdiction to determine the different question of whether the applicant had at a later date become eligible by reason of changed circumstances. In so far as the AAT purported to determine eligibility at the date of its own decision, I would characterise this as a very clear case of a tribunal whose jurisdiction was solely one of review purporting to decide a question that was in substance different from that which had been considered by the original decision maker.
Comcare v Brown [1998] FCA 1144; (1998) 157 ALR 522 also concerned a decision of the AAT. Comcare had determined that a claimant in respect of injuries sustained in the course of employment was not entitled to reimbursement of certain taxi fares. On review of this decision the AAT purported also to determine whether the claimant was entitled to compensation for permanent impairment. In the Federal Court Finn J held that the AAT lacked jurisdiction to consider permanent impairment because that question had not been before the decision-maker whose determination was under review in the AAT. This is another clear instance of the AAT exceeding its jurisdiction by purporting to decide something that was in substance different from the subject matter of the decision in respect of which its power of review at been invoked.
The plaintiff relied upon Dawson v Greyhound Racing Victoria [2017] VSC 123. The defendant (GRV) was an incorporated body constituted under s 69 of the Racing Act 1958 (Vic). It had the function of controlling the sport of greyhound racing, with powers that included making rules The Greyhound Australasia Rules were adopted. GRV had the power to register greyhound trainers. Mr Dawson was a registered trainer. The Rules provided for appointment of stewards. The stewards charged Mr Dawson with, inter alia, a breach of r 86(o) which made it an offence to do anything in relation to greyhound racing "which, in the opinion of the stewards … is … improper or constitutes misconduct".
The particulars of the charge were that on a certain date Mr Dawson had "allowed … Mr Tony Vass, who you knew to be a disqualified person under the [Rules], to enter and remain on a greyhound training facility known as Darnum Slip Track". This charge was heard by the GRV Appeals and Disciplinary Board, which found the charge proved and disqualified Mr Dawson for 12 months. Pursuant to the Racing Act Mr Dawson had the right to apply to the Victorian Civil and Administrative Tribunal (VCAT) for review of the Disciplinary Board's decision. Under s 51 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) the review was by way of a hearing de novo.
Before VCAT it was conceded by GRV that Mr Dawson had not "allowed" Mr Vass to enter and remain on the Darnum Slip Track. The evidence showed that the gate to the track was unlocked, that various people were using the track and that Mr Dawson "had no legal authority to prevent Mr Vass entering". On that evidence VCAT treated the particulars of the charge as "in effect" amended by GRV, to an allegation that the "Mr Dawson failed immediately to leave when Mr Vass came on the track" - although GRV had not sought an amendment and there was never any discussion of amendment in the running of the case. VCAT found the charge proved on the basis that Mr Dawson "allowed Mr Vass to remain on the track with him, in that Mr Dawson failed to immediately remove himself from the track while Mr Vass was there" (emphasis added).
Forrest J held as follows:
[18] [The charge] was amended to allege as an ingredient of the offence that the appellant omitted or failed to leave the track the moment he became aware of the disqualified person's presence. In my view, if this is an offence at all, it is certainly a different offence to that alleged by [the charge] in its original form. I consider the sentence in [VCAT's] reasons "..(h)e allowed Mr Vass to remain on the track with him, in that Mr Dawson failed to immediately remove himself from the Track..." exposes both the difference between the two offences, and a logical flaw in the reasons. Had Mr Dawson promptly removed himself from the track, in my view this action could not impact upon whether Mr Vass stayed or left. In modern language, there is a 'disconnect'. Mr Dawson's [failure to make a] prompt exit is irrelevant to the central ingredient of the charge - that he allowed Mr Vass to stay.
[24] It follows that I consider an element of [the charge] was substantively amended. In so doing, the Senior Member considered a fresh charge that had not been the subject of any earlier determination.
His Honour considered Freeman v The Secretary, Department of Social Security and Comcare v Brown and the following general proposition stated by Kiefel J in Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 at [142]:
In considering what is the right decision, the [AAT] must address the same question as the original decision maker was required to address.
Kiefel J dissented in Shi v Migration Agents Registration Authority. The difference between her Honour and the majority of the High Court concerned the temporal element of the decision in that case, the issue being whether the AAT had to decide the fitness of a person to be registered as a migration agent as at the date of the AAT's determination, taking into account all evidence before the AAT, or as at the date of the decision under review on the basis of the material that was before the original decision maker. Her Honour's general statement had application by analogy to the case before Forrest J, where no temporal element was involved.
Applying the authorities to VCAT's decision, Forrest J held:
[35] … I consider that the charge in its amended form raised a substantially different question from that considered by the primary decision-makers. It follows that I consider that the amendment was impermissible and that [VCAT] has fallen into jurisdictional error.
The above decisions do not support the plaintiff's ambitious submission that the Racing Appeals Tribunal has no jurisdiction to allow any amendment whatsoever to the particulars of a charge that is the subject of an appeal before it. Nor is any support for that submission derived from consideration of the nature of the appeal, as prescribed by the Racing Appeals Tribunal Act and the Regulation.
Section 16 of the Act requires that an appeal "is to be by way of a new hearing". Whenever such an appeal is brought in respect of a finding by HRNSW stewards of a breach of the Rules, the charge concerning the breach will receive its first consideration under adversarial procedure before the Tribunal. The stewards' process commences with an investigation. If the evidence they uncover appears to indicate an infringement, they formulate a charge. The stewards notify the alleged offender of the charge and afford him an opportunity to be heard. They consider the evidence that they have gathered, including anything advanced by the alleged offender, and decide whether the charge is proved. The process is inquisitorial rather than adversary. The outcome is the result of an inquiry rather than an adjudication. There is no decision-maker independent of the stewards who hears the evidence that they have assembled, hears the response of the person charged and then makes a judgment as between the two sides as adversaries.
For this reason, alone, an appeal to the Tribunal from a decision of the HRNSW stewards must necessarily assume much of the character of a first instance hearing. The appeal is an adversary procedure in which the Tribunal, independent of both parties, is called upon to judge the issue between the alleged offender and his accusers. The accusers are the stewards, who come before the Tribunal in the name of HRNSW as respondent.
The statutory requirement that the appeal "is to be by way of a new hearing" tends further to imbue the appeal with qualities of a first instance hearing of the charge. By force of s 16 the evidence on the appeal need not include the evidence considered by the stewards. "Evidence in addition to or in substitution for" the evidence upon which the stewards acted may be adduced. The "new hearing" provided for in s 16 is what has traditionally been referred to, for example in relation to an appeal from Justices to the District Court under the Justices Act 1901 (NSW)(rep) prior to its amendment in 1998, as a hearing de novo: Builders Licensing Board v Spurway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620-621 (Mason J).
The circumstance that the Tribunal only has jurisdiction to hear and determine an allegation of infringement that is the subject of a prior decision by either a club or a steward does not dictate that the Tribunal must have absolutely no power to allow amendment of a charge. Subject to the jurisdictional limit that the Tribunal may not allow an amendment that would result in it hearing a charge different in substance from that upon which the stewards made their decision, other aspects of an appeal to the Tribunal indicate that it has an implicitly conferred power to allow amendment of the particulars.
The charge will, in most if not all cases, have been formulated by stewards rather than lawyers. At the point of embarking upon an adversarial hearing in the Tribunal amendment of the particulars maybe desirable to clarify the manner in which it is alleged that the rule has been breached. The Tribunal may find this necessary in order to ensure that the person accused has clear notice of the case he or she has to meet. Regulation 18 confers upon the Tribunal the power to determine its own procedure including with respect to preparation for the hearing of the appeal. Clarification of the particulars by amendment may be an important aspect of this.
The present case is an example of the utility of amendment to achieve clarity. If drafted by a careful lawyer, the stewards' particulars of the charge as failure "to ensure" that the horse received appropriate veterinary care would be understood as a contention that the obligation in r 218 could only have been satisfied by actually securing the attendance of a veterinarian and that proof of no attendance by any veterinarian was therefore, alone, sufficient to establish breach. However, the stewards as non-lawyers appear to have intended the allegation of failure "to ensure" the attendance of a veterinarian in a looser sense, as embracing failure to take any step or to take reasonable steps to secure veterinary care.
This is apparent in their reasons for finding the charge proved, dated 5 March 2019. Those reasons do not stop at merely recording that the horse required veterinary care and that none was provided, as would be sufficient if they were assessing the particulars of charge on the strict literal meaning of failure "to ensure". On the contrary, the stewards examined the evidence carefully to determine whether reasonable endeavours had been made. They found as follows:
The evidence with regards to Mr Ross contacting a vet is vague at best, if it occurred at all. […]
It is clear to Stewards, however that veterinary care was not obtained or provided to the mare High Rolling Rena from the time the horse became incapacitated until her death. Further, it is clear that Mr Ross had not sought or obtained veterinary care for the lameness he had observed in the mare […] for some time prior to her death.
Included in Mr Ross' submissions in response to the charge issued by Stewards was a reference from Dr Don Crosby, one of the vets Mr Ross claimed to have made attempts to contact. In the reference provided by Dr Crosby dated 10 December 2018, it is noted that there are no comments at all in relation to the deceased mare […]. In addition, it is noted that there is no mention of any involvement of staff at his practice or any contact made by Mr Ross in relation to the mare […].
Is not surprising that the stewards used the expression "failed to ensure" imprecisely when, as their findings show, they were actually examining a failure to make a reasonable attempt to secure veterinary care. Such imprecision is often seen by the Court in negligence cases, even in pleadings that have been drafted by lawyers. It is erroneous but not uncommon for lawyers to draft particulars of negligence in terms such as "failed to ensure that the plaintiff was not exposed to [some danger]", for example, whereas the intended meaning, in accordance with the settled law of negligence, is "failed to exercise reasonable care to avoid exposure of the plaintiff to" the relevant danger.
The amendment allowed in this case has not resulted in the Tribunal embarking upon the determination of a charge that is in substance different from that which the stewards found proved. Given that the stewards are not trained lawyers it would be unreasonable and impractical to construe their use of the words "failed to ensure that [the mare] received appropriate veterinary care" in a strict and precise sense and then to treat the amending words "failed to take appropriate steps to attempt to obtain veterinary care for [the mare]" as a change of meaning. There appears to be no change of meaning from what the stewards intended, at all. Even if there were a change of meaning in this minor respect, it would not result in the charge containing the amended particulars being different in substance from the original charge.
The charge before the Tribunal, as amended, remains a charge of contravention of r 218, constituted by the same legal elements, particularised by reference to the same horse, allegedly not cared for properly by the plaintiff on the same dates, at the same place and with the same outcome. The only difference is that by making the amendment HRNSW has expressly accepted that the obligation of proper care did not impose an inescapable requirement actually to secure the attendance of a veterinarian and that breach of the rule is not established simply by proof that no veterinarian attended the horse. Rather, HRNSW accepts that, in the circumstances, the obligation of proper care required only that reasonable steps be taken to summon a veterinarian and that in order to establish breach it must show that the plaintiff did not make reasonable endeavours to that end.
The Racing Appeals Tribunal has jurisdiction to allow amendment of the particulars of a charge that is the subject of an appeal before it, within the limits explained in these reasons. Those limits were not exceeded by the Tribunal allowing the amendment that it did on 20 May 2020. The plaintiff is not entitled to relief in respect of the Tribunal's decision.
[2]
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Decision last updated: 12 October 2020