Webber v Racing New South Wales

Background

1. Ms Webber was a licensed trainer of thoroughbred racehorses in NSW from 1994 to 1 September 2016. In her summons, she seeks judicial review of a decision made by Mr V'landys, supposedly as a delegate of Racing NSW or perhaps as its representative, to refuse her application for renewal of a training licence for 2016/17 and, so the plaintiff says, to revoke her existing licence. The defendants dispute that the proper characterisation of Mr V'Landys' decision is that it constituted the revocation of an existing licence, although they agree that he refused to renew Ms Webber's licence.
2. Ms Webber also seeks review of various decisions concerning her attempts to appeal Mr V'Landys' decision under the Thoroughbred Racing Act 1996 which need not be further mentioned.
3. The first defendant, Racing NSW, is a statutory body established pursuant to s 4 of the Thoroughbred Racing Act 1996. Its powers relevantly include powers to register or licence, or refuse to register or license, trainers, and cancel, suspend or revoke training licences, (see ss 13 and 14 of the Thoroughbred Racing Act, as well as Australian Rules of Racing, r 7(iii)(b), Local Racing Rules, r 51(3)). As is to be expected, Racing NSW is required to exercise its registration licensing functions so as to ensure that registered or licensed persons are "fit and proper persons to be so registered or licensed (having regard in particular to the need to protect the public interest as it relates to the horse racing industry)" (Thoroughbred Racing Act, s 14AA(1)).
4. It appears that under the Australian Racing Rules and the Local Racing Rules, Racing NSW has the power to delegate its licence renewal function and has done so to the Licensing Committee of Racing New South Wales.
5. In this case, the relevant decision to not renew Ms Webber's training licence was made following an interview with her by the Licensing Committee on 15 July 2016. The Licensing Committee then forwarded a memorandum to Mr V'Landys, as Chief Executive Officer of Racing NSW, recommending her licence not be renewed. Mr V'Landys recorded on the memorandum his acceptance of that recommendation.
6. One issue in the proceedings is whether or not Mr V'Landys had the power to make that decision. However, that issue is not relevant to this application.
7. Placed before the Court on this hearing was the transcript of the interview with the Licensing Committee on 15 July 2016 as well as the Licensing Committee's memorandum. The memorandum summarised what was stated during the interview as well as some material provided by Ms Webber to the Committee both before and after the interview was conducted. Under the heading "matters taken into consideration", the memorandum records four matters that the Licensing Committee stated that it considered to be "particularly relevant".
8. The first matter was the Licensing Committee's dissatisfaction with Ms Webber's submissions in respect of her financial position and, in particular, a business plan that she had put forward. The second matter was the Licensing Committee's conclusion that Ms Webber's training operations are in an "extremely poor financial position".
9. The third matter warrants recitation in full. The Licensing Committee's memorandum stated: "Ms Webber regularly engages staff that have not completed the required processes to be licensed despite those obligations being known to Ms Webber and are not registered to carry out their duties for Ms Webber. Most recently this occurred in the case of [name omitted] who was riding track work for Ms Webber on 17 July 2016 at Rosehill when he fell off a galloping horse, causing him to fracture his clavicle. [Name omitted] was not licensed to carry out track work and had not passed the required rider safety assessment. The Licensing Committee is of the view that Ms Webber's disregard for her work, health and safety obligations poses an unacceptable level of risk of injury to staff she engages as well as others carrying out work at racecourses/training facilities."
10. The fourth matter identified in the memo concerned Ms Webber's injuries which she had suffered during the course of her work. The Committee recorded their view that Ms Webber had shown a "disregard for her work, health and safety obligations" and concluded that she posed "an unacceptable level of risk of injury to herself, staff that she engages as well as others carrying out work at racecourses/training facilities".
11. As noted, the memo then recorded the Committee's recommendation that Ms Webber not be granted a trainer's licence for 2016/17.
12. In relation to the third matter, the material tendered on this application suggests that nothing of that kind was ever raised with Ms Webber in either her interview with the Licensing Committee or the correspondence between her and the Licensing Committee.
13. On 1 September 2016, Mr V'Landys wrote to Ms Webber stating inter alia: "I advise the decision in the matter has been reached. After considering all of the material before it, the Licensing Committee determined that in light of your financial position and performance, particularly with respect to work, health and safety issues, you are unsuitable to continue as a licensed trainer. As a consequence the Licensing Committee recommended you not be granted a trainers licence for 2016/17. By this letter you are notified I have adopted the recommendation of the Licensing Committee and pursuant to the powers delegated to me, I have determined that you will not be granted a trainers licence for 2016/17."

The Summons

1. In her summons, Ms Webber pleads a number of background facts relevant to her circumstances and the decision not to renew, and possibly to revoke, her trainer's licence. Amongst other matters, she pleads that in October 2012 she suffered a fall at work that caused a serious injury to her cervical spine and resulted in some incapacity. By operation of the relevant legislation, Racing NSW is her workers compensation insurer. Ms Webber's summons pleads a number of facts concerning the progress of her workers compensation claim, including complaints that she made to Mr V'Landys and others at Racing NSW about the manner in which it was being progressed.
2. Amongst other matters she pleads that in January 2016, the Workers Compensation Commission assessed her as having a 32% whole person impairment and ordered Racing NSW to pay her an amount of money as lump sum compensation. In paragraph 35 of the summons she pleads that she then applied for weekly benefits from 1 April 2015 to date and continuing in reliance on that determination. She pleads that that claim amounted to approximately $60,000 in weekly benefits as at the date of the filing of the summons. She pleads that as at August 2016, that application was refused by Racing NSW.
3. Ms Webber's summons pleads six grounds of review in relation to Mr V'Landys' decision to not renew, and possibly revoke, her training licence, namely a denial of procedural fairness, a misconstruction of s 14AA of the Thoroughbred Racing Act, unreasonableness, an improper purpose on the part of Mr V'Landys, a reasonable apprehension of bias on the part of Mr V'Landys and a lack of the necessary delegation of power to Mr V'Landys. The summons also pleads that some aspects of Mr V'Landys' decision amounted to an unlawful restraint of trade. The particulars to the unreasonableness grounds and the improper purpose grounds allege that in effect, in making his decision, Mr V'Landys was, at least in part, motivated by a desire for retribution or punishment of Ms Webber for having pursued her claim for workers compensation and complained about it. The particulars to the unreasonableness ground also contend the decision was "irrational" involved "unjustifiable discrimination", and was "inconsistent with the treatment of others".

Approach

1. It is not possible, nor appropriate, on this application to make generalised statements about the scope of discovery in judicial review proceedings. That said, depending on the grounds of review, it is not uncommon for a plaintiff to have access to the material that was actually before, and in some cases constructively before, the decision maker and to obtain that material either by court process or by application under the relevant freedom of information legislation (see, for example, Minister for Aboriginal Affairs v Peko‑Wallsend Limited [1986] HCA 40; 162 CLR 24 at 36).
2. Certainly, in cases where a properly based allegation of improper purpose is made, the party impugning the decision is not confined to the document that is said to formally record the reasons of the decision maker. Instead, they can seek to go behind such reasons to seek direct and indirect evidence of the decision maker's state of mind, including documents brought into existence by the decision maker and received by the decision maker for consideration from which the purpose of the decision may be inferred (see Telstra Corporation v Hurstville City Council [2002] 118 FCR 198 at [50]). It is not uncommon that such documents can be obtained on notice, subpoena and, in some cases, discovery (see for example, Ziad v Randwick City Council [2000] NSWSC 1198 at [43] per Bergin J).
3. Nevertheless, at least so far as discovery is concerned, the request must conform with Uniform Civil Procedure Rules, r 21.2 and the strictures of s 56 and following of the Civil Procedure Act. Further, in deciding what material will be placed into evidence the Court expects the practitioners will apply a very significant degree of rigour in order to reduce the material placed before the Court (see Insurance Australia Ltd t/a NRMA Insurance v Milton (No 2) [2016] NSWCA 173).
4. In the end result there were two areas of dispute between the parties about the scope of the notices. I will deal with each in turn.

Workers Compensation Material

1. Paragraph 2 of the notice to produce directed to Racing NSW seeks production of: "All documents received by Mr Peter V'Landys AM in respect of Pam Webber's Workers Compensation claim against Racing New South Wales including complaints about non-payment of her claims in the period 1 January 2014 to 13 September 2016 including file notes, emails, text messages, reports, memos, letters and statements."
2. Paragraph 1 of the notice to produce to Mr V'Landys is in relevantly identical terms.
3. Counsel for the defendants objected to the production of this material on the basis that the assertion that this material was relevant to Mr V'Landys' decision was pure speculation. It was contended there is no basis whatsoever to the allegation that Mr V'Landys was in any way motivated by the pleaded desire to punish Ms Webber for her progression of her Workers Compensation claim.
4. Even absent the allegation of improper purpose on the part of Mr V'Landys, I would still order the production of this material. Nothing in the material provided by the defendants on this application, including the letter from Mr V'Landys of 1 September 2016, and the memorandum from the Licensing Committee to him, purports to describe, much less limit, the material that it was said that Mr V'Landys considered in deciding to adopt the Licensing Committee's recommendation.
5. Prima facie, any knowledge that Mr V'Landys had previously acquired about Ms Webber, including her workers compensation claim, appears to have been relevant to his consideration of whether to adopt the Licensing Committee's report, bearing in mind that two matters of significance raised by the Licensing Committee were Ms Webber's financial circumstances and her injuries and the circumstances in which they occurred.
6. That said, I would still also require production of this material on the basis that it is relevant to the pleaded allegation of an improper purpose on the part of Mr V'Landys. The allegation is undoubtedly a serious one. It can be expected that Counsel did not draft that part of the summons that raises it without a proper basis.
7. The allegation derives some support from the coincidence and timing of Ms Webber's apparent success on the progression of her workers compensation claim in early 2016, and the fact that her licence was first not renewed later that year in circumstances where it had been renewed in previous years, although questions had been raised upon its renewal for 2015/2016.
8. The allegation of improper purpose also derives significant support from the apparently inexplicable failure of either the Licensing Committee or Mr V'Landys to seek Ms Webber's comments on the third matter noted in the Licensing Committee's memorandum as described above. It was arguably apparent to Mr V'Landys there was a problem in that regard. The memorandum identified the date of the interview with Ms Webber as 15 July 2016, described the interview in terms that did not suggest that Ms Webber was given any opportunity to respond to an allegation that she engaged staff who were not properly licensed, and then referred to an incident that occurred the day after the interview, that is 16 July 2016. The memorandum did not suggest that Ms Webber was given an opportunity to address the matter in the meantime.
9. Connected to the debate about paragraph 2 of the notice to produce directed to Racing NSW is a debate about the scope of paragraph 3. Paragraph 3 seeks production of "all documents authored, caused to be created or signed by Mr Peter V'Landys AM in respect of Pam Webber in the period 1 January 2014 to 13 September 2016 including file notes, emails, text messages, reports, memos, letters and statements". Paragraph 2 of the notice to produce issued to Mr V'Landys was in relevantly identical terms.
10. The defendants seek to limit the scope of this part of the notice to produce so that it only seeks material of the kind described "in respect of Pam Webber's trainers licence" in the period 1 January 2014 to 13 September 2016. I do not accept that that restriction is appropriate in circumstances where Mr V'Landys is the decision maker in question. It is quite conceivable that in any correspondence that he has engaged in concerning Ms Webber, Mr V'Landys has opined on matters concerning her that relate to the four matters raised in the Licensing Committee's memo and which were otherwise arguably relevant to the decision he made to accept their recommendation. Given the breadth of the allegations made concerning the validity of his decision, it seems to me the material written by him about Ms Webber is certainly discoverable.
11. The defendants also raised concerns about the scope of this paragraph. The principal concern was that the use of the phrase "in respect of" will pick up some incidental or operational correspondence that might relate not only to Ms Webber, but also to, say, other trainers including, for example authorisations for the distribution of prize money from particular races or race meets.
12. This can be addressed by substituting the words "that refer to" for the words "in respect of" and by adding the words "other than approvals of distribution of prize money" at the end of the paragraph.

Other Licence Refusals

1. Paragraphs 5 and 6 of the notice to produce to Racing NSW seek the production of the following material: "5. All memoranda of the Licensing Committee of Racing New South Wales to Mr Peter V'Landys AM in the period 30 June 2011 to 1 September 2016 recommending the refusal or renewal of a trainers licence until further order, the name and address of the trainer and identification of any company or individual referred to may be redacted if confidential. 6. All minutes, all memoranda of the Licensing Committee of Racing New South Wales in the period 1 July 2015 to 1 September 2016 in respect of the Committee considering and approving the renewal of a training licence."
2. The defendants objected to the entirety of paragraph 5 as well as so much of paragraph 6 that sought material concerning trainers other than Ms Webber. At first sight these paragraphs appear to be oppressive. However, Racing NSW's 2016 report was tendered on this application. It indicates that only 28 out of 1,024 renewal applications were referred to the Licensing Committee in that year. It follows that the material sought by paragraph 6 is likely to be relatively limited.
3. As for paragraph 5, it can be expected that the number of memoranda sent by the Licensing Committee to Mr V'Landys in any given year is likely to be less than the number of matters that were referred to the Licensing Committee in that year. Although the number of documents sought to be produced in answer to paragraph 5 is likely to be greater than in paragraph 6, it is still likely to be a relatively limited number.
4. The plaintiff seeks the material sought by paragraphs 5 and 6 in an endeavour to prove that Mr V'Landys and, to the extent necessary, the Licensing Committee, had the improper purpose pleaded. Ms Webber also seeks this material to pursue that part of her case that contends that her treatment was unequal and unjustified which, as I have noted, is part of her unreasonableness claim. I accept that in that regard the notices have a legitimate objective. In circumstances where I have already concluded there is some basis for the making of the improper motive claim, I accept that it is not wholly speculative for them to seek this material. Overall, I am satisfied that the discovery of this material is justified in circumstances where the material required is, in size terms, relatively limited.
5. There are three caveats to this that should be noted. First, the ordering of production of this material should not be considered to be some first round of an inquiry into the facts and circumstances of other renewal decisions. Claims of differential treatment which involve a consideration of the facts and circumstances of other administrative decisions are not often successful. The more that that enquiry requires the production of material beyond the stated reasons for renewal, then the more likely it is that the material is irrelevant and that the considerations in s 56 and following of the Civil Procedure Act warrant access not being made available.
6. Second, consistent with what is suggested by the concluding words of paragraph 5, it is appropriate that all the material produced in relation to these two categories redact the name and address of any trainer as well as the name of any company associated with the trainer.
7. Third, even allowing for that redaction, I accept the point raised by Counsel for the defendants that this material is likely to contain material that is confidential. It should not, at this stage, be disclosed to any competitor of the trainers, specifically Ms Webber. It follows that it is appropriate to order that access to this material be restricted to counsel and solicitors for the plaintiff and not Ms Webber herself. On the face of it, it does not seem likely that there is any material in these memoranda that would require Ms Webber's legal representatives to obtain instructions from her.

Further Matters

1. Before I make orders and hear the parties on costs, I will make two observations relating to the future conduct of the proceedings.
2. The first is that the allegation of improper conduct against Mr V'Landys is a serious matter given his status as a public official. Upon the production of the material pursuant to the orders that I will make, it will be incumbent upon the plaintiff's legal advisers to give careful consideration as to whether that allegation can be maintained. They can be expected to be required to provide further particulars in support of the allegation before Mr V'Landys is required to make a choice as to whether he is to provide an affidavit.
3. Second, bearing in mind the above discussion about the third matter raised in the Licensing Committee's memo, the defendants should understand that they are now on notice of the way in which at least one aspect of the plaintiff's case, namely, that there was a denial of natural justice, is to be framed. They should consider their position accordingly.

Orders

1. I order as follows: (1) On or before 24 June 2017, the first defendant produce the material sought in the plaintiff's Notice to Produce issued to it dated 2 March 2017 save that: (a) Paragraph 3 be amended to read: "All documents authored, caused to be created, or signed by Mr Peter V'Landys AM that refer to Pam Webber in the period 1 January 2014 to 13 September 2016 including file notes, emails, text messages, reports, memos, letters and statements other than approvals of distribution of prize money." (b) By the deletion of the words "until further order, the name and address of the trainer and identification of any company or individual referred to may be redacted if confidential" at the end of paragraph 5. (c) Until further order, the first defendant may redact the name and address of any trainer or any company associated with any trainer in the material produced in answer to paragraphs 5 and 6 of the Notice. (d) Until further order access to the material produced in answer to paragraphs 5 and 6 of the Notice be restricted to the plaintiff's counsel and instructing solicitors. (2) On or before 24 June 2017, the second defendant produce the material sought in answer to the plaintiff's Notice to Produce issued to him dated 2 March 2017, save that paragraph 2 be amended to read: "All documents authored, caused to be created, or signed by you that refer to Pam Webber in the period 1 January 2014 to 13 September 2016 including file notes, emails, text messages, reports, memos, letters and statements other than approvals of distribution of prize money."

Costs

1. The appropriate order is that the costs of the application be costs in the cause. In the end result the parties came to debate the appropriateness of the use of a notice to produce and instead it became a discovery application. In circumstances where the Court did not need to resolve that aspect of the dispute between the parties, it is not appropriate that it attempts to do so for the purpose of determining costs. Otherwise, ultimately, whether the material the subject of today's debate does in fact support the plaintiff's case will not be known until the outcome of the proceedings.
2. Accordingly I order that: (3) The costs of the defendant's Notice of Motion filed 19 May 2017 be costs in the cause. [Discussion about future listings and directions]
3. I order that: (4) The existing order that the defendants file affidavits by 1 June 2017 be vacated.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 June 2017