1. The applicants referred me to the Macquarie Dictionary for definitions of the word 'propose':

-verb (t) 1. to put forward (a matter, subject, case , etc.) for consideration,

acceptance, or action: to propose a new method; to propose a toast.

to put forward or suggest as something to be done: he proposed that a messenger be sent.

to present (a person) for some position, office, membership, etc.

to put before oneself as something to be done; to design; to intend.

-verb (i) 7. to make a proposal, especially of marriage.

1. It was submitted that any person who is the subject of a RADB decision, has at the very least 'considered' the possibility of an appeal to VCAT at the time the RADB proceedings are on foot.
2. I do not accept the applicants' proposed reading of section 109(1)(a) for the following reasons.
3. On the applicants' reading, section 109 creates a right of review for a decision which has not been made, which may not be made or may even be entirely in the relevant person's favour. The VCAT Act does not support that reading. That is because, while section 4 of the VCAT Act casts a wide net of decisions which may be the subject of a review - including a failure to make a decision - it does not allow a person to make an application in anticipation of the making of a decision.[6] Similarly, section 51, which contains VCAT's powers on review, assumes the existence of a decision and does not apply to decisions not yet made.[7] Section 66N of Schedule 1 of the VCAT Act confines VCAT's powers on review. It does not widen them to include possible decisions.
4. The applicants' proposed reading gives insufficient weight to the chapeau to section 109(1) which identifies a certain point in time and then describes specific circumstances which must apply at that point in time.
5. The applicants' proposed reading also gives insufficient attention to the phrases 'a decision' and 'apply to VCAT for a review of that decision'. It does not give effect to the heading to section 109 which makes plain the section is directed to the review of 'decisions' of the RADB, not possible decisions.[8] The applicants' proposed reading is more closely aligned to the circumstances which are the subject of section 108(1)(a) - that is, matters at the RADB which are incomplete. There is nothing in section 109 which indicates it is intended to address those circumstances.
6. In order to read section 109(1) in the way proposed, it would be necessary to pay little to no regard to the context in which the word 'decision' is used. Section 109 says (underlining my emphasis):

This section applies if immediately before [1 August 2019] -

(a) a person whose interests are affected by a decision of a [RADB] under section 83OH(1) proposes to apply to VCAT for a review of that decision . . .

1. In my view, the qualifying requirement in section 109(1)(a) describes a definite state of affairs which exist immediately before 1 August 2019. That is, a person is at that time affected by a decision and, at that time they propose to seek review of that decision, not a future and as yet unmade decision.
2. Read in that context, the word 'proposes' is to be understood as protecting the interests of those who have had an adverse RADB decision but have not yet made their application to VCAT or decided to do so.
3. The applicants' proposed reading does not accord with the interpretative principles set out earlier. This is not a case of a conflict between competing provisions where it is appropriate to seek to alleviate that conflict. Rather, when striving to give meaning to every word of the provision, one must give proper weight to the references to 'a decision' of the RADB which may be the subject of merits review by VCAT. I find there is no need to re-write section 109 in the way the applicants propose.
4. I find the qualifying requirement in section 109(1)(a) requires that a RADB decision was made immediately before 1 August 2019 and that, at that point in time, the applicant proposes to apply to VCAT for merits review of that pre-1 August 2019 decision.

Application of the rules of statutory interpretation

1. The applicants' alternative submission was that the rules of statutory interpretation ought to be brought to bear for me to find VCAT has jurisdiction in these matters.
2. The applicants set out the range of reasons why they say the position these applicants find themselves in is unfair and difficult to understand, if it was Parliament's intentions that, matters on foot prior to 1 August 2019 be completed under the then existing arrangements. They explained the consequences of a narrow interpretation of jurisdiction being taken and said it defies common sense for the provisions to be read in a way that extinguishes the applicants' previously existing right to merits review. I have some sympathy with those matters but, as indicated by Judge Bowman, they are an insufficient basis to find jurisdiction. I leave those submissions which are personal to the applicants to one side.
3. The applicants contended that, as a general rule, in deciding whether or not it has jurisdiction, VCAT should:
   • not be bound by mechanical analysis;
   • apply common sense;
   • look at the words, context, and purpose of the legislation;
   • apply the law in a way that is 'fair and workable'; and
   • be mindful of the effect of the interpretation on other cases.
4. The applicants referred to the principle that the legislature will not intend to abrogate rights of individuals to access the Courts (in this case the Tribunal) other than to the extent expressly stated, relying on Public Service Association (SA) v Federated Clerk's Union.[9] They contended that remedial or beneficial provisions such as section 109 should not be construed narrowly, rather, they should be interpreted as broadly, beneficially, and generously as the language allows.[10]
5. I accept those contentions.
6. The applicants referred me to the following paragraphs from Bell J's decision in Director of Housing v Sudi:[11]
   1. VCAT is a tribunal not a court and has no inherent jurisdiction. Although it has certain obligations under the Charter as a public authority, and can determine certain issues under the Charter when they legitimately arise in proceedings within its jurisdiction, it has no express jurisdiction with respect to the question of whether a public authority has breached human rights.
   2. On the other hand, the tribunal has both the jurisdiction and the obligation to determine whether it has jurisdiction . . . It also has the jurisdiction to determine legal issues which legitimately arise in a proceeding within its jurisdiction, including issues concerning the interpretation and application of the Charter. Such determinations are subject to the supervisory jurisdiction of the Supreme Court [the applicants' emphasis].
7. The applicants submitted that the decision in Sudi is authority for the proposition that VCAT has jurisdiction, and indeed an obligation, to resolve the jurisdiction issue. They then said that, if VCAT agrees that the purpose of the legislation was to include a right of appeal to the applicants, then it has the power to effect the intention of the legislators by finding that it has jurisdiction to hear the appeal pursuant to section 109.
8. Reliance was placed on the:
   • Explanatory Memorandum;
   • advice from the Office of Racing;
   • framing of sections 108 and 109; and
   • principle that the lack of an express intention to extinguish rights supports a finding that Parliament did not intend to abrogate those rights,

to conclude that the legislation should be construed as conferring jurisdiction on VCAT to hear these applications. The applicants further contended that, if VCAT had jurisdiction, it extended to review both liability and penalty.

1. For the following reasons, I am not satisfied there is a basis for me to find VCAT has jurisdiction in these matters.
2. The parties agreed that there are indicators that Parliament intended for matters before the RADB as at 1 August 2019 to be dealt with in the same way as they would have had the VRT not been established.
3. While the applicants suggest HRV agreed there was an intention to allow a right of review to VCAT for these applicants, on my reading, HRV's submissions did not go that far. HRV's submissions identified the gap in the legislation and noted the Office of Racing comments but concluded that it was difficult to discern from the Racing Amendment Act any conferral of review jurisdiction on VCAT for people in the position of the applicants.
4. I accept clause 25 of the Explanatory Memorandum (see paragraph 35 above) indicates Parliament intended that some matters proceed under the old arrangements, including a right to merits review at VCAT on both liability and penalty.
5. When considering the terms of the Explanatory Memorandum, I agree with the applicants' proposition that it refers to two groups of people: first, those captured by section 108 whose matters are yet to be completed at the RADB and second, those who fall within section 109 who have a decision from the RADB and propose to seek review by VCAT. As noted earlier, those who have both a decision and an application before VCAT fall within section 110.
6. I also agree with HRV's conclusion that the second paragraph of clause 25 of the Explanatory Memorandum does not describe the applicants' circumstances. That is because, when it refers to review rights at VCAT, it is in the context of a RADB decision being the subject of the review.
7. While I give weight to the advice from the Office of Racing, that is all it is, and cannot amount to a definitive indication of Parliament's intention.
8. The 'gap' not addressed expressly by the Explanatory Memorandum or by the transitional provisions is what is to happen to people like the applicants where the charges were laid before 1 August 2019 (and so could not be referred direct to the VRT under section 50O) but the RADB had not completed its task under section 108 by that date.
9. I agree with the applicants that it seems unlikely that Parliament intended that those matters could proceed through the RADB but then not be able to be reviewed by anybody. I proceed on the basis the legislature ought not to be taken as having intended to abrogate rights of individuals to access courts or tribunals, other than to the extent expressly stated. I accept that the effect of the identified gap in the legislation is that the applicants' previously existing merits review rights appear to have been lost but not by express language.
10. I agree the Tribunal is required to identify its jurisdiction and in doing so not read legislation too narrowly, paying appropriate attention to what may be discerned of Parliament's intention from the legislation itself and aids to interpretation such as explanatory memoranda.[12] If there had been some uncertainty or ambiguity, those principles might have assisted the applicants. As the section 109(3) power for VCAT to hear and determine a review as if section 83OH had not been amended does not arise unless and until the requirements in section 109(1) are met, it of itself cannot be applied to create jurisdiction in VCAT.
11. I have not identified uncertainty or ambiguity in the terms of section 109(1) or in the other available extrinsic aids. Rather, I have found silence on the issue. These circumstances may be contrasted with those considered in JS and LS v Patient Review Panel.[13] In that case, the relevant Second Reading Speech said, 'All decisions of the panel are reviewable by VCAT'.[14] There is no such clear statement available here.
12. Avoiding the loss of a previously existing review right without express words is a strong argument in the applicants' favour. However, that is not enough to support VCAT filling the gap where there is nothing in the legislation itself or in the Explanatory Memorandum which addresses that matter.
13. In order to find the jurisdiction the applicants seek, it would be necessary for me to create a new transitional provision.
14. That new provision would need to replicate elements of section 108 and 109 with the qualifying requirement being an applicant who had a matter before the RADB immediately before 1 August 2019 (which had not been completed - like section 108(1)(a)) and for the powers of VCAT on review to apply to liability and penalty as if section 83OH of the Racing Act had not been amended (like section 109(3) and also 110(2)).
15. Even if I found there was an implied intention to maintain the applicants' review rights, I do not accept that in resolving a jurisdictional issue it is open to VCAT, a body which only has the powers conferred on it by Parliament under its enabling enactments, to do so by, in effect, writing an entirely new provision.
16. I can only agree with HRV that statutory amendment would be required to resolve what appears to be an anomaly.

1. Section 75 of the VCAT Act empowers the Tribunal to, at any time, on its own motion or on an application, summarily dismiss or strike out a proceeding if it falls within certain descriptors.
2. There have been many cases about section 75 and the law about how to approach the section is clear.[15] The Tribunal is required to exercise caution before summarily terminating a proceeding. It should only do so if the proceeding is obviously hopeless or unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail. One of the bases for summarily dismissing or striking out a proceeding under section 75(1)(a) is when the proceeding is misconceived. That descriptor may apply to a proceeding over which the Tribunal has no jurisdiction.
3. As I have found VCAT has no jurisdiction in this proceeding, it is appropriate that the application be dismissed under section 75(1)(a) of the VCAT Act. It is also appropriate for the stay orders made on 23 December 2019 to be set aside.

[1] Ms Tormey was disqualified for 18 months on the Rule 193(7) charge and disqualified for 12 months on the Rule 190(1) charge with six months to be served concurrently with the penalty that was imposed on the Rule 193(7) charge, making a total penalty of two years disqualification. Mr Douglas was disqualified for two years for breach of Rule 193(1).

[2] Wizardry Kennels v Semtech Animal Breeding Services [2006] VCAT 2368 at paragraph 11.

[3] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at paragraphs 69 to 70.

[4] The effect of section 51 of the VCAT Act is that, on review, VCAT stands in the shoes of the decision maker and can exercise all of its powers and functions.

[5] The term 'serious offence' is defined in section as 83OD as an offence that is a serious offence within the meaning of the relevant rules.

[6] Section 4 of the VCAT Act says relevantly:

(1) For the purposes of this Act or an enabling enactment, a person makes a decision if the person -

(a) makes, suspends, revokes or refuses to make a decision, order, determination or assessment (including a decision not to make a decision, order, determination or assessment);

(2) For the purposes of this Act or an enabling enactment -

(c) a refusal by a decision-maker to make a decision under an enactment because the decision-maker considers that the decision cannot lawfully be made is deemed to be a decision made under that enactment to refuse to make the decision;

(d) a failure by a decision-maker to make a decision under an enactment within the period specified by that enactment is deemed to be a decision by the decision-maker at the end of that period to refuse to make the decision.

[7] See Rein v Nurses Board of Victoria [2004] VCAT 979 at paragraph 20; and Chapman v Victoria State Emergency Service [2015] VCAT 1402 at paragraph 55.

[8] Section 36(2A) of the Interpretation of Legislation Act 1984 (Vic) says headings to sections form part of the Act.

[9] (1991) HCA 33.

[10] Referring to JS and LS v Patient Review Panel [2010] VCAT 1813 and section 6 of the Interpretation of Legislation Act 1984 (Vic).

[11] [2010] VCAT 328 (footnotes omitted).

[12] Consistent with section 35 of the Interpretation of Legislation Act 1984 (Vic).

[13] [2010] VCAT 1813.

[15] The cases include the following: State Electricity Commission of Victoria v Rabel & Ors [1998] 1 VR 102; Norman v Australian Red Cross Society (1998) 14 VAR 243; Towie v State of Victoria & Ors [2002] VCAT 1395; Forrester v AIMS Corporation [2004] VSC 506; Naylor v Oakley Thompson & Co Pty Ltd & Ors [2008] VCAT 2074.