Equity - Equitable Remedies - Injunctions - Interlocutory injunctions - Serious question to be tried.

Director-General of Social Services v Chaney [1980] FCA 87; (1980) 47 FLR 80; Minister Administering the State Service Act v Leary and Others [2009] TASSC 24; Irwin v Meander Valley Council [2007] TASSC 91, referred to.

Judicial Review Act 2000 (Tas), s26(2)

Attorney-General: Director of Public Prosecutions

Judgment Number: [2009] TASSC 34

CRAIG TOULMIN v TASMANIAN RACING APPEAL BOARD and

1 The applicant is a harness racing trainer. On 14 January 2008, he presented a horse at a race meeting in Launceston. On 29 January 2008, stewards found that the applicant had breached the Australian Rules of Harness Racing ("the Rules"), r190. Rule 190 provides as follows:

"A horse shall be presented for a race free of prohibited substances."

The stewards found that the horse presented by the applicant had a prohibited substance in its system at the time it raced. The Rules, r188A, provides that an alkalinising agent is a prohibited substance. It also provides that an alkalinising agent evidenced by a concentration of total carbon dioxide (TCO2) of 36.0 millimoles per litre in plasma or less is excepted from that definition. The stewards had before them a Certificate of Analysis which disclosed that the sample taken from the applicant's horse had a concentration of TCO2 of 37.2mmol/L. The applicant was, as a consequence of the breach found, disqualified as a trainer for four months.

2 On 29 January 2008, the applicant lodged an appeal against the stewards' decision with the Tasmanian Racing Appeal Board ("the Board") and sought a stay of the disqualification. The stay was granted, pending the outcome of the appeal. The appeal related not only to the finding of the breach but also to the penalty imposed. On 30 March 2009, the Board delivered written reasons in respect of that part of the appeal which related to the finding of breach and dismissed the appeal insofar as it related to that. At the same time, the Board revoked the stay on the disqualification. There was then a further hearing before the Board in relation to the penalty on 14 or 15 April 2009. On 15 April, the Board confirmed the penalty imposed by the stewards and again delivered written reasons. Those reasons were in the form of an additional part added to the earlier reasons. On that date, the Board directed the four month disqualification run from 30 March 2009.

3 On 11 May 2009, the applicant filed an originating application in this Court. At the hearing of this application, it was confirmed as an application for judicial review pursuant to the Judicial Review Act 2000 ("the JR Act"). On the same date the applicant filed an interlocutory application by which he sought orders, the effect of which would be to stop the period of disqualification running until the review is completed. The applicant, as at the date of hearing of this application, had served approximately six weeks of the four month disqualification imposed.

4 The Board and the chief steward, who are respectively the first and second respondents to this application, have filed notices of submission. The Attorney-General for the State of Tasmania has intervened pursuant to the JR Act, s39.

5 By his originating application, the applicant sought a review of the decision of the Board made 15 April 2009. What in fact the applicant seeks to review is the decision of the Board against both the finding of breach and penalty. The State contends that there are in fact two decisions of the Board, one as to the breach of rule handed down on 30 March 2009, and one as to penalty handed down on 15 April 2009 and that, for the purpose of any application under the JR Act, they are separate decisions attracting different time frames for the making of any application to review. The applicant contends there is only one final decision, and that is that handed down on 15 April. The distinction is relevant because if the State's argument is accepted, the originating application of the applicant filed 11 May 2009 is out of time insofar as it relates to the first decision. While the applicant did not concede the position taken by the State, out of an abundance of caution, his counsel filed in Court a further interlocutory application by which he sought an extension of time pursuant to the JR Act, s23, to file the application to review the March decision.

6 The two decisions are attached to the affidavit of the applicant sworn 11 May 2009. That delivered on 30 March is a discrete document. After a further subsequent hearing, the Board issued a second document which was the original reasons with some paragraphs added as to penalty. The headings on the first pages of each, however, made it clear they related to two separate issues, that is the finding of breach and penalty.

7 The JR Act, s17, provides that a person who is aggrieved by a decision to which this Act applies may apply to the Court for an order of review. The phrase "decision to which this Act applies" is defined in s3 to mean "a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)". Counsel for the State, relying on remarks of Deane J in Director-General of Social Services v Chaney [1980] FCA 87; (1980) 47 FLR 80 at 100, submitted that the March decision was a determination effectively resolving an actual substantive issue. If the term "decision" had that limited meaning, it could refer, quoting from the remarks of Deane J, "to any such determination whether final or intermediate... or be limited to referring only to a determination which effectively disposes of the matter in hand...". This matter was dealt with by Porter J in Minister Administering the State Service Act v Leary and Others [2009] TASSC 24, where at par21, he said in respect of Chaney (supra):

"Deane and Fisher JJ (Northrop dissenting) held that an appeal lay only from a decision which constituted the effective decision or determination of the application for review. At 104, Deane J said that as the ruling did not effectively dispose of the proceedings, it was not a decision from which an appeal lay."

8 Porter J distinguished Chaney's case by reference to the wording of the legislation with which he was dealing. However there is nothing in the wording of the JR Act which might suggest that should happen here. In the present case, as counsel for the applicant pointed out, there was a single appeal to the Board. The decision of 30 March did not deal finally with all aspects of that appeal, although I accept it dealt finally with a substantial aspect of it. The finalization of all aspects of the appeal only occurred on 15 April. If the State's argument is accepted, the applicant may for example, had the penalty decision been handed down more than 28 days after the first decision, have had to file a review application before the penalty decision, and then either file a second application, or seek to amend the first. That, with respect, has the potential to create entirely unnecessary expense for litigants and increased pressure on court resources. Common sense dictates in that circumstance that the decision for the purpose of the JR Act, s23, should be that combined one, delivered on 15 April, as it finally disposed of the applicant's appeal.

9 In those circumstances, the originating application is within time, and it is unnecessary to deal with the applicant's interlocutory application filed in court.

10 The applicant, in effect, seeks to stop the period of disqualification from continuing to run until his review application is dealt with. That application was filed on 11 May 2009 and is currently listed for a first return date before the Associate Judge on 9 June 2009. By that date, the applicant will have served almost two and half months of his four month disqualification. It is quite likely in those circumstances that, if a stay is not granted, he will serve the whole, or a substantial part, of the disqualification before his review is dealt with. The effect of any stay order will not be that the applicant never serves the period of disqualification, simply that his service of it will be delayed if he is ultimately unsuccessful.

11 The parties were not at odds as to the principles to be applied to an application such as this. Ultimately, the primary focus of counsels' submissions was on whether the applicant had shown that he had an arguable case or that there was a serious question to be tried. To this end, counsel for the applicant addressed the Court at length about the contents of the originating application. It is not the role of the Court on this application to consider in detail the merits of the originating application or to make final determinations about disputed issues. The Court's role is simply to determine whether the applicant may or may not have an arguable case. Most of the matters raised in the application for review are matters which were not raised before either the stewards or the Board, a matter which counsel for the State submitted was relevant to the exercise of my discretion. Some of the grounds clearly have less substance than others. Some, if they succeed, will have some considerable impact upon how the Board and stewards deal with future prosecutions for breaches of certain rules.

12 What underpins many of the grounds is what the applicant asserts is the proper construction of the Rules, r188A. Rule 188A(1) provides that substances falling within the following categories of substances are prohibited substances. One of those categories is "Alkalinising Agents". Rule 188A(2) provides that certain named substances, when present at, or below, the levels set out, are excepted for the purpose of sub(1). One such substance was "Alkalinising Agents, when evidenced by total carbon dioxide (TCO2) present at a concentration of 36.0 millimoles per litre in plasma".

13 The contention by counsel for the applicant is that the Board has interpreted this rule to mean that TCO2 is an alkalinising agent and that, if it is found in a concentration greater than 36.0 mmol/L, then it is a prohibited substance. He argues that the rule cannot be interpreted in that way and that all it says is:

- alkalinising agents are prohibited substances;

- TCO2 at a level less than 36.0mmol/L is not.

In those circumstances, neither the Board nor the stewards could find a breach of r190 proved, unless they had evidence that TCO2 was an alkalinising agent, and they did not. Further extrapolated from that, counsel argued that the only evidence of what was found in the applicant's horse, was contained in a certificate of analysis which said that TCO2 was present in the horse's system at a concentration of 37.2mmol/L. Without evidence TCO2 was an alkalinising agent, there was nothing upon which the Board could have relied. There were further arguments about averaging of sample results, an expectation that the Board would afford the applicant the benefit of the margin for uncertainty factor, an attack as to whether the Board had made a finding that it should have made, and a consequential attack on its decision to refund the applicant's deposit to him.

14 In Irwin v Meander Valley Council [2007] TASSC 91, Underwood CJ said at par26:

"It is trite law that this Court will not engage in a merits based review of the respondent's decision. It is confined to determining if legal error attended the making of the decision. If there is any evidence to support the decision, then it cannot be said that error occurred in making a decision without evidence. As Mason J. (as he then was) pointed out in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355, a question of whether there is any evidence to support a decision is a question of law. His Honour went on to say at 356:

'But it is said that "(t)here is no error of law simply in making a wrong finding of fact": Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54; per Brennan J at 77. Similarly, Menzies J. observed in Reg v The District Court; ex parte White [1966] HCA 69; (1996) 116 CLR 644, at p654: 'Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg illogical) inference of fact would not disclose an error of law'."

15 Grounds 10 to 14 of the originating application are all predicated on the applicant's interpretation of r188A. Counsel for the State conceded that, if this Court took the view that there was an argument with some substance in relation to this issue, then there would be a serious issue to be tried. Conversely however, if this Court took the view that the argument simply had no real foundation, then there would not be. Counsel for the applicant, while not stating just what rules of interpretation should apply, somehow inferred that, because the Rules did not have the status of statutory rules, they were somehow a lesser being, and different rules of interpretation might apply. Whatever the status of the Rules, they are rules which have been put in place by an industry to govern the day-to-day operation of that industry, and were clearly intended to bind any participant in the industry. Unless therefore there is a clear ambiguity or uncertainty, they should be given their ordinary meaning as it appears from the wording.

16 With respect, the interpretation suggested by the applicant would make a nonsense of the relevant rule. Sub(1) clearly talks about categories of substances. It describes one of those categories as being "Alkalinising Agents". Any substance falling within that category is a prohibited substance. In sub(2), substances at certain levels are excepted from the application of sub(1). One of those substances is described by reference to the category "Alkalinising Agents", but then by reference to the substance itself, namely TCO2. There is no other conclusion reasonably open from a reading of the rule, other than TCO2 is an alkalinising agent. It clearly follows that if a concentration of TCO2 of 36.0 millimoles per litre in plasma is excluded from the operation of sub(1), a concentration greater than that is not.

17 In my view, having regard to the foregoing, the applicant has not shown that he has a sufficiently arguable case in respect of the grounds of review identified above to warrant the exercise of the Court's discretion in his favour to grant a stay.

18 As to ground 15, even were a court to accept that somehow there needed to be a further step taken by the Board, apart from the dismissal of the appeal, from which the only inference which could be drawn is that the Board affirmed the decision of the stewards, it is unlikely to be an issue which would enliven the discretion of the court in favour of the applicant on the review application.

19 As to ground 16, there was no evidence at all to support the assertion made by the applicant's counsel that the Board did other than conduct a hearing de novo, save what he submitted was the inference to be drawn to that effect from the structure of the Board's decision. Again, it is unlikely to be an issue which could possibly enliven the Court's discretion in favour of the applicant.

20 Ground 22 is dependent on the success of ground 15. I have already concluded there is little merit in the latter, and would not be satisfied that this ground provided the applicant with an arguable case on his review.

21 Grounds 17 and 18 of the application to review are predicated on an assumption that the Board was obliged to average the samples of the two racing test laboratories. There is no rule to that effect, nor was there any authority put to the Court to suggest that the Board was required, in the circumstances affecting the applicant, to do that. As to ground 18, by its wording it asserts that r188A requires that there be a margin for uncertainty considered when determining the concentration level of a substance. Counsel conceded the rule provides no such thing. In any event, it is apparent from the Board's reasons that they did in fact take into account the margin for uncertainty allowed for by the testing laboratories.

22 As to ground 20, it is again predicated on an assumption that the Board was obliged to average the results from the two testing laboratories and then apply a margin for uncertainty, and asserts in fact that, firstly, the Board did not do that, and secondly, that it failed to warn the applicant it did not intend to do so. This ground suffers in the absence of any evidence that the Board was required to average the samples as asserted and, in any event, because the Board did in fact apply the margin for uncertainty to the test results upon which it relied.

23 As to ground 21, again, it is also predicated upon an assumption that the Board was required to average a number of testing results and then apply a margin for uncertainty.

24 Counsel for the applicant submitted that this Court was unable to properly consider a number of the grounds raised in the application to review by reason of the level of material available to it constrained by the short notice of the hearing. He submitted that it was likely there would be further evidence sought to be put before the final hearing, so that the grounds of review could be more fully argued. While this is no doubt correct, and, as I have indicated, it is not my role at this stage of the proceedings to finally determine issues, the material that is before me is sufficient to satisfy me at this stage of the proceedings that the applicant does not have an arguable case. That is not to say that, with the benefit of further evidence or more considered submissions, and I do not suggest that the submissions of counsel for the applicant were ill-considered before me, a judge hearing the applicant's review might not be persuaded to exercise the Court's discretion in his favour and set aside the decision of the Board.

25 I have not addressed issues such as balance of convenience and prejudice. While counsel for the applicant addressed both, counsel for the State focused only upon the issue of an arguable case. I infer in those circumstances that he did not dispute that issues of balance of convenience and prejudice might favour an exercise of the Court's discretion in favour of the applicant. I have therefore confined myself to dealing with whether or not the applicant has established that he has an arguable case or that he has demonstrated there are serious issues to be tried. The extent of my determination as to that is simply for the purpose of determining whether this Court should exercise its discretion pursuant to the JR Act, s26, in favour of the applicant to stay the order of the Board, which had the effect of reinstating the disqualification imposed on the applicant. I am not satisfied that I should exercise my discretion in his favour. The applicant's interlocutory application for a stay is refused.