Absalom v Greyhound Racing New South Wales ABN 61018166136

[2018] NSWSC 207

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Absalom v Greyhound Racing New South Wales ABN 61018166136 [2018] NSWSC 207

Hearing dates:

06 February 2018

Date of orders:

28 February 2018

Decision date:

28 February 2018

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   Summons dismissed;

 

(2)   The plaintiff shall pay the first defendant’s costs of and incidental to the proceedings; and

 (3)   Otherwise, the proceedings are dismissed.

Catchwords:

ADMINISTRATIVE LAW – challenge to implementation of policy of Greyhound Racing NSW as inconsistent with Rules and not authorised by Act - duty to prevent harm to dog not inconsistent with procedure to provide water in kennel at racetrack, even though particular dog may harm itself.

Legislation Cited:

Greyhound Racing Act 2009 (NSW), ss 5, 9, 10, 23, 24, 29, 48(1)(b)
Racing Appeals Tribunal Act 1983 (NSW), s 15A

Cases Cited:

Australian Maritime Officers’ Union v Assistant Minister for Immigration and Border Protection (2015) 230 FCR 523; [2015] FCAFC 45
Commonwealth v Grunseit (1943) 67 CLR 58; [1943] HCA 47
Day v Sanders; Day v Harness Racing New South Wales (2015) 90 NSWLR 764; [2015] NSWCA 324
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26
Minister for Industry & Commerce v. Tooheys Ltd (1982) 60 FLR 325; [1982] FCA 135
Sullivan v Department of Transport (1978) 20 ALR 323; (1978) 1 ALD 383
Vanstone v Clark (2005) 147 FCR 299; [2005] FCAFC 189

Category:

Principal judgment

Parties:

Carly Abaslom (Plaintiff)
Greyhound Racing New South Wales ABN 61018166136 (First Defendant)
Racing Appeals Tribunal (Second Defendant)

Representation:

Counsel:
D Robertson (Plaintiff)
A Shearer/K Pham (First Defendant)

  Solicitors:
DCE Lawyers (Plaintiff)
Dentons Australia (First Defendant)
Submitting Appearance (Second Defendant)

File Number(s):

2017/300861

Judgment

1. HIS HONOUR: By Summons filed 5 October 2017, Carly Absalom (the “plaintiff”) seeks judicial review of a decision of the Racing Appeals Tribunal purporting to find that the plaintiff was guilty of a breach of Rule 86(ag) of the GRNSW Greyhound Racing Rules (“the Rules”), by reason of her failure to comply with a policy of Greyhound Racing New South Wales (the “first defendant”), namely, the Race Day Hydration and Hotweather Policy (“the Hydration Policy”), by not providing a bowl of water to a greyhound, “Celestial Folk”, on a number of occasions when it was kennelled. The second defendant, the Racing Appeals Tribunal (the “Tribunal”) submits to any order of the Court save as to an order for costs.

2. Essentially, there is no factual dispute about that which gave rise to the purported finding of guilt. Rather, the plaintiff alleges that the Hydration Policy under which the plaintiff was obliged to provide the water was ultra vires the power reposed in the first defendant to make Rules and/or inconsistent with the Greyhound Racing Act 2009 (NSW) (“the Act”), in that as a policy or decision, there was no statutory basis for the Hydration Policy to override the duty imposed by Rule 106. Further, the plaintiff alleges that the Tribunal failed to deal with an issue raised by the plaintiff before the Tribunal concerning the alleged inconsistency and evidence which, according to the plaintiff, disclosed that the placing of a water bowl in the kennel for Celestial Folk would cause the greyhound harm.

Facts

3. Facts may be shortly stated. As earlier indicated, the facts are uncontentious, except, perhaps, to the extent that there is no acceptance of the proposition, upon which the plaintiff relies, that the provision of a water bowl to Celestial Folk would cause harm. For reasons which will become apparent, it is unnecessary for the Court to determine that issue.

4. On or about 25 February 2017, at a race meeting, the plaintiff provided a water bowl when kennelling Celestial Folk and obtained permission from a Steward to use towelling underneath and around the water bowl. On 3 March 2017, the Chief Steward advised the plaintiff that no other foreign objects would be allowed during kennelling.

5. At a race meeting on 4 March 2017, the plaintiff kennelled Celestial Folk without providing water and was issued with a fine of $100 for breach of Rule 86(ag) of the Rules. The foregoing rule renders breach of, or failure to observe, the first defendant’s policy an “offence”.

6. On 9 March 2017, the General Manager Regulatory of the first defendant permitted the plaintiff to use padding around the water bowl for Celestial Folk. On 11 March 2017, the plaintiff kennelled Celestial Folk with a water bowl with the aforesaid padding utilised.

7. On 15 March 2017, the plaintiff emailed the Chief Steward and sought an exemption from the Hydration Policy. On 16 March 2017, the Chief Steward refused that exemption.

8. At a race meeting on 25 March 2017, the plaintiff again kennelled Celestial Folk without a water bowl and was again issued with a fine of $100 for breach of Rule 86(ag) of the Rules .

9. The plaintiff kennelled Celestial Folk without a water bowl on 1 April, 31 May, 7 June, 14 June and 24 June 2017. On or before 26 June 2017, the plaintiff was charged with five breaches of Rule 86(ag), being those 5 dates to which the Court last referred.

10. On 26 June 2017, the enquiry of the Stewards found that each of the 5 charges had been proved and imposed a penalty of 16 weeks’ suspension of the plaintiff’s licence. That penalty was wholly suspended on the condition that the plaintiff complied with the Hydration Policy, and the Rules for a period of 12 months.

11. On 28 June 2017, the plaintiff appealed to the Tribunal, inter alia challenging the validity of the Hydration Policy and Rules and the purported failure of the Stewards’ enquiry to consider relevant evidence and to provide procedural fairness.

12. The plaintiff’s appeal to the Tribunal was heard on 11 August 2017. The Tribunal’s decision was issued on 17 August 2017 and rejected the plaintiff’s grounds of appeal.

Grounds

13. The Summons challenges the decision of the Tribunal of 17 August 2017. The Grounds for judicial review of the Racing Appeals Tribunal, filed in this Court, are in the following terms:

“The Tribunal

(1) The Second Defendant (‘the Tribunal’) is created by the Racing Appeals Tribunal Act 1983.

(2) The Second Defendant misconstrued the Rules of Greyhound Racing promulgated under the Greyhound Racing Act in particular failing to apply Rule 106 and in finding that a policy purportedly promulgated by the First Defendant could and did override the provisions of the rules.

(3)    The Second Defendant found the Plaintiff guilty of a failure to comply with a policy purportedly promulgated by the First Defendant which was ultra vires the First Defendant and invalid.

(4)    The Second Defendant failed in reaching its decision to have regard to the evidence presented by the Plaintiff concerning the impact upon the greyhound Celestial Folk of placing water in its race day kennel as purportedly required by the Race Day Hydration and Hot Weather Policy.

Conclusion

(5)    By reasons of each and all of the foregoing matters, the Decision was attended by jurisdictional error, and is accordingly amenable to the relief sought by the Plaintiff as set out above.”

14. Essentially the issues involved in the proceedings concern the construction of and interrelationship between the Act, the Rules made thereunder, and the decision of the first defendant, by means of the Hydration Policy, to prescribe that all kennelled greyhounds be supplied with a bowl of water of not less than 250 ml. Otherwise, the application for judicial review concerns the failure of the Tribunal to deal with the factual assertion that is said to give rise to a conflict between the Rules and the prescription by the first defendant that a bowl of water is to be provided. It is necessary to deal with the legislation.

Legislation and Other Instruments

15. The Act does not have defined objects but its long title recites that it is a statute “to make provision with respect to the control and regulation of Greyhound Racing; and for other purposes.” By s 5 of the Act, the first defendant is not the Crown and does not represent the Crown.

16. The functions of the first defendant are defined in s 9 of the Act and, relevantly, it provides:

“9    Functions of GRNSW

(1)    GRNSW has the functions conferred or imposed on it by or under this or any other Act or law.

(2)    Without limiting subsection (1), the functions of GRNSW include the following:

(a)    to control, supervise and regulate greyhound racing in the State,

(b)    to register greyhound racing clubs, greyhound trial tracks, greyhounds, owners and trainers of greyhounds, bookmakers for greyhound racing and other persons associated with greyhound racing,

(c)    to initiate, develop and implement policies considered conducive to the promotion, strategic development and welfare of the greyhound racing industry in the State,

(d)    to distribute money received as a result of commercial arrangements required by the Totalizator Act 1997,

(e)    to allocate to greyhound racing clubs the dates on which they may conduct greyhound racing meetings.

(3)    GRNSW may affiliate with such organisations, whether in or out of New South Wales, as GRNSW considers appropriate.

(4)    The functions of GRNSW are not limited by the rules and are to be exercised independently of Greyhounds Australasia Limited or any successor.”

17. The powers of the first defendant are defined in s 10 of the Act, which grants to the first defendant the “power to do all things that may be necessary or convenient to be done for or in connection with the exercise of its functions” and, without limiting those words, the power to supervise the activities of persons registered by the first defendant and all other persons engaged in or associated with Greyhound Racing; to enquire into and to deal with any matter relating to Greyhound Racing and to refer any such matters to Stewards or others for investigation and report; to enquire at any time into the running of any greyhound on any course; to impose a penalty on a person registered or on an owner of a greyhound for contravention of the Rules; to publish material, including periodicals, to inform the public; and to take such steps and do such acts and things as are incidental or conducive to the exercise of its powers and the performance of its functions: s 10(1) and s 10(2)(b), (c), (i), (p) and (r) of the Act.

18. Section 23 of the Act deals with the Rules in relation to Greyhound Racing and allows the first defendant to “make Rules, not inconsistent with this Act or the regulations, for or with respect to the control and regulation of Greyhound Racing”: s 23(1) of the Act. Without limiting those words, the first defendant is empowered to make Rules for or with respect to a number of subject matters including “the keeping of greyhounds that are in the care or custody of persons registered under the Rules”: s 23(2)(f) of the Act.

19. The first defendant also has the power to make Rules conferring on stewards the function of enforcing the Rules (s 23(2)(k) of the Act) and, in the circumstances in which Stewards may exercise their functions to the exclusion of greyhound racing club Stewards: s 23 (2)(l) of the Act.

20. It is appropriate for the Court to set out the terms of s 24, which is in the following terms:

“24    Rules generally

(1)    A provision of a rule made under this Division may:

(a)    apply generally or be limited in its application by reference to specified exceptions or factors, or

(b)    apply differently according to different factors of a specified kind, or

(c)    authorise any matter or thing to be from time to time determined, applied or regulated by any specified person or body, or may do any combination of those things.

(2)    A rule made under this Division may apply, adopt or incorporate any publication as in force at a particular time or as in force from time to time.

(3)    A rule made under this Division may not be made for or with respect to any of the matters for or with respect to which regulations may be made by virtue of this Act (section 48 (1) (b) excepted).”

21. Particular note should be made of subs 24(2) and subs 24(3) of the Act. While a Rule may be made adopting or incorporating a publication in force from time to time, a Rule may not be made with respect to any of the matters for which regulations may be made by virtue of the Act. The exception provided in subs 24(3) to those matters that may be made the subject of regulation pursuant to the terms of s 48(1)(b) is relevant.

22. Section 29 of the Act empowers the first defendant to set minimum standards in connection with the conduct of greyhound races by greyhound racing clubs, and of all meetings, including minimum standards with respect to, relevantly, greyhound training facilities and such other matters relating to the conduct of greyhound races and greyhound racing meetings as may be prescribed by the regulations. Pursuant to the terms of s 29(4) of the Act, the minimum standards set may be inconsistent with a provision of a by-law and, in the case of any such inconsistency, the minimum standards will prevail to the extent of the inconsistency.

23. The exception to which the Court earlier referred, in relation to the prohibition on Rules for which regulations may be made is somewhat circular. The provisions of s 48(1)(b) of the Act permit regulations to be made, not inconsistent with the Act, in respect to “any matter for or with respect to which rules may be made under Division 2 of Part 3”.

24. Part 3, Division 2 consists of ss 23 and 24 of the Act to which earlier reference has been made.

25. It is necessary to deal with the Greyhound Racing Rules. Those Rules are either “National” Rules or “Local” Rules. The National or “General” Rules mean the Australasian Rules and apply nationally and to New Zealand.

26. There is recognition that the legislation governing individual jurisdictions may prevent the National Rules applying and, by virtue of Rule 6, the Local Rules are incorporated in the National Rules. By Rule 7, the Local Rules take precedence over the National Rules.

27. National Rules do not apply (or a variation to them does not apply) until adopted by a resolution of a Controlling Body in the jurisdiction to which they purport to apply. The first defendant is a Controlling Body in New South Wales (Rule 8).

28. Rule 3 of the Rules is in the following terms:

“R3    Rules to apply to

(1)    These Rules apply to the Controlling Body, every Club, and their members, officers, officials, stewards and servants, and every person who takes part in any event or attends any race meeting or trials or wagering at race meetings or any other proceeding or matter purporting to be conducted pursuant to or which is governed by these Rules and any greyhound registered with or appearing in the records of a Controlling Body in any capacity.

(2)    A person or Club to whom these Rules apply, in the absence of any other provisions that serve to bind that person to these Rules in the manner indicated in this Rule, is deemed-

(a)    to have knowledge of and to consent to be bound thereby; and

(b)    to have agreed that these Rules shall be a defence to any alleged civil liability arising out of the operation of these Rules.

(3)    A Controlling Body or Club, member, officer, official, Steward or servant shall not be liable to any person for any loss or damage sustained by that person as a result of or in any way (either directly or indirectly) arising out of the exercise of any right, privilege, power, duty or discretion conferred or imposed, or bona fide believed to have been conferred or imposed, pursuant to the Rules.”

29. Rule 5 deals with the capacity of the various individual jurisdictions to make Local Rules in order to provide for the legislative requirements of that individual jurisdiction.

30. Rule 14 empowers a Controlling Body to appoint Stewards, officials and other authorised persons; to revoke the appointment of such persons; to enquire into any matter concerning Greyhound Racing; to prohibit any greyhound from competing if, in the opinion of the Controlling Body, that action is necessary for the proper control and regulation of Greyhound Racing; to publish, in any manner, the Controlling Body’s decisions made in the exercise of the powers or functions granted by the Act, the National Rules, the Local Rules and the Rules of the club; to prohibit persons from being employed or appointed or participating in the management of a club; to prepare and maintain records of racing performances; and, in relation to every meeting, to direct the club conducting the meeting to publish a range of particulars of the greyhounds and the event in which it is participating.

31. Rule 27(1) provides that the trainer of a greyhound shall be responsible for and shall make provision for the proper care and handling of each greyhound from the time the greyhound arrives at a racecourse until the time the greyhound leaves the racecourse.

32. Rule 41 is in the following terms:

“R41    Kennelling procedure and security

(1)    Each greyhound shall be allotted a separate kennel.

(2)    A greyhound shall not be permitted to be kennelled with any gear other than that ordered to be worn or approved by the Stewards.

(3)    The door of a kennel shall not be covered with any type of material.

(4)    A greyhound shall not be allowed to enter the kennel area unless the handler is in possession of the appropriate pass with the kennel allocation recorded on it.

(5)    The Stewards may prohibit the introduction to the kennel building of any item which, in the opinion of the Stewards, is inappropriate, excessive in quantity, or in an unacceptable condition.

(6)    A handler shall not be permitted to remain in the kennel building once his greyhound is kennelled and shall not be permitted to re-enter the kennel building until permitted by the Stewards.

(7)    A greyhound whilst kennelled shall at all times be kept so that only authorised persons shall have physical access to it.

(8)    A person shall not in any manner excite or attempt to excite any greyhound in the kennel building.”

33. By the terms of Rule 86 of the National Rules, a person (including an official) shall be guilty of an offence against the Rules if the person contravenes any of the Rules: Rule 86(a).

34. By Rule 86(ag) a person is guilty of an offence against the Rules if the person fails to comply with a policy adopted by a Controlling Body. It is this last aspect which is said to be one of the more relevant Rules in the issues between the parties in these proceedings, because, as previously stated, the first defendant published the Hydration Policy, which required that a bowl of water, containing no less than 250 mls of water, be kept in the kennel for the greyhound that is accommodated in that kennel. It is conduct by the plaintiff in breach of that policy which is said to be the basis of the offence against the Rules and that has given rise to the penalty imposed by the first defendant and confirmed on appeal by the second defendant.

35. Lastly, in terms of the Rules, Rule 106 provides for the proper care and welfare of greyhounds and, relevantly, is in the following terms:

“R106    Proper care (welfare) of greyhounds

(1)    A registered person must ensure that greyhounds, which are in the person’s care or custody, are provided at all times with-

(a)    proper and sufficient food, drink and protective apparel;

(b)    proper exercise;

(c)    kennels constructed and of a standard approved by the Controlling Body which are adequate in size and which are kept in a clean and sanitary condition; and

(d)    veterinary attention when necessary.

(2)    A registered person must exercise such reasonable care and supervision as may be necessary to prevent greyhounds pursuant to the person’s care or custody from being subjected to unnecessary pain or suffering.

(3)    At any time after the notification of the result of service pursuant to Rule 136, the last registered owner of the greyhound at the relevant time, shall notify the Controlling Body by lodging the prescribed form:

(a)    within ten working days, if that greyhound has transferred ownership, been retired as a pet or a breeding greyhound, been transferred to an adoption program, exported or surrendered to another agency;

(b)    within two working days if that greyhound has been humanely euthanased by a veterinary surgeon or deceased. (amended – 01.09.15)

(4)    It shall be a requirement to include a veterinary certificate of euthanasia when lodging the appropriate form for any greyhound that has been euthanased by that veterinary surgeon.

(5)    An owner or person responsible at the relevant time who fails to comply with any provision of this rule shall be guilty of an offence and liable to a penalty in accordance with Rule 95. (amended 01.01.11)”

Submissions and consideration

36. As earlier stated, the plaintiff was found guilty by the Stewards of the first defendant on five charges under Rule 86(ag), namely, that the plaintiff had failed to comply with the Hydration Policy that requires the provision of a bowl with no less than 250 mls of water during Celestial Folk’s kennelling. The dates and place of the alleged offences is only marginally relevant.

37. Further, as also earlier stated, the plaintiff appealed the decision to the Tribunal, pursuant to s 15A of the Racing Appeals Tribunal Act 1983 (NSW). That appeal was by way of a new hearing and evidence was permitted to be adduced being evidence in addition to that which had been before the Stewards.

38. As is clear from the foregoing, the plaintiff sought to adduce evidence and rely upon what was said to be the “harm” that would be caused to Celestial Folk if a bowl full of water was placed in the kennel with the particular greyhound without supervision. The evidence upon which the plaintiff relied was contained in a statement of Dr Brian Daniel, a veterinarian, and Ms Patricia Bouchier, a prior owner of Celestial Folk. There was also a statement of the plaintiff dated 14 June 2017.

39. In short, the plaintiff expressed her concerns relating to the dog injuring itself on a stainless steel bowl that it may knock; the danger that the dog will become entangled; the risk that the dog will spill water, rendering its bed, kennel and the dog itself wet; if wet, the risk associated with the dog remaining wet in its kennel and on a wet bed in air-conditioning; the concern that the dog will drink too much before the race and be bloated; the risk of the dog walking on wet ground; and the risk of contamination. Such concerns were communicated by email by the plaintiff to a race official and the first defendant on 23 February 2017.

40. The plaintiff also asserts that she utilised a water bucket on 25 February and had been given permission by the Steward to use towelling in and around the bowl. She recites that, as to this occasion, the particular greyhound rarely drinks “plain water”, so the concerns relating to it drinking too much water before the race and being bloated were not relevant, but the plaintiff was still concerned that Celestial Folk would play with any water bowl, like a toy, knocking the bucket and becoming wet.

41. When Celestial Folk was retrieved from the kennel, the race meeting having been cancelled, she had removed the towels to which reference has been made in the immediately preceding paragraph. Both the towels were wet but the dog and the rest of the kennel were not.

42. The plaintiff further testifies that on 11 March 2017, the plaintiff again used a water bucket with padding around it when she kennelled Celestial Folk. After Celestial Folk was collected from the kennel, it was apparent that Celestial Folk had had her feet in the bucket, with wet paw prints throughout the kennel and on her bedding. Her feet were saturated. The greyhound was “visibly upset”.

43. Celestial Folk raced below the plaintiff’s expectations and, in the plaintiff’s view, the poor performance was due to the water bowl. Later that evening, when Celestial Folk was checked by the plaintiff, the plaintiff noticed a slight soreness in the dog’s right metacarpal.

44. Applications were made to the Stewards for exemption from the requirement to have a water bowl in the kennel but such applications were refused. Celestial Folk had raced on a number of occasions without a water bowl being present in the kennel and, seemingly, without ill effect. The Stewards’ refusal of the application for exemption is not before the Court.

45. The statement of Dr Brian Daniel is to the effect that greyhounds vary in nature and conduct and, in his opinion, the introduction of a water container will “entice a particular type of greyhound to spill the water, play with the equipment or get caught in the equipment.” He also confirms that many greyhounds will not drink while in the kennel.

46. He asserts that the risk of injury to an excitable greyhound from the presence of a water container in its race kennel is “greater than any risk from possible dehydration”. He compares the first defendant’s Hydration Policy with the NSW Animal Welfare Code of Practice for transporting companion animals.

47. The prior owner, Ms Bouchier, executed a statement in which she observed that Celestial Folk was friendly but cautious and behaved well when kennelled at home; behaved badly when kennelled at the racetrack; became stressed and stirred up at the racetrack; would only drink fluids with her meals and refused water offered from the hose; and, after racing, (at the car) when offered water with ‘electrolytes’, would willingly drink, but only if the water also contained milk.

48. The evidence of Ms Bouchier was that she would muzzle the greyhound in order to calm her down and so that she would not chew her kennel mat and also that the greyhound appeared not to like being confined to a small kennel. She expressed concern that, if a metal bucket or bowl with water were used, Celestial Folk may damage herself on it

49. It is unnecessary to summarise or repeat the evidence given by the plaintiff before the Stewards. Nevertheless, that evidence confirms the approach taken in the statement before the Court. In that evidence, the plaintiff stated that her “key concern with the provision of water to greyhounds in the kennels is that the presence of a bowl could result in water spillage”: Ex A p 165.

50. Fundamentally, the plaintiff submits, as she did in the evidence in the proceedings before the Stewards and the Tribunal, that where adherence to a policy would result in a risk of harm that is not fanciful, the policy must give way to the provisions of Rule 106 and to the duty imposed upon the plaintiff not to subject her greyhound to harm. In that way, the plaintiff submits that the Hydration Policy is inconsistent with the Rule 106, invalid and ultra vires.

51. The foregoing proposition is put in a number of different ways, but, ultimately, the proposition remains the same. Further, the plaintiff submits that the Tribunal was in error in refusing to deal with the proposition that the greyhound would be the subject of harm if the plaintiff were to have complied with that particular requirement of the Hydration Policy.

52. In dealing with the invalidity of the Hydration Policy, the plaintiff submits that the Hydration Policy is legislative in nature or effect and relies upon authority the effect of which is that legislation may not be promulgated by a body other than the parliament without the authority of the Parliament: Vanstone v Clark (2005) 147 FCR 299; [2005] FCAFC 189 at [101]; Australian Maritime Officers’ Union v Assistant Minister for Immigration and Border Protection (2015) 230 FCR 523; [2015] FCAFC 45 at [74]. It is submitted the Hydration Policy has legislative effect, because it creates or formulates new rules or law having general application: Minister for Industry & Commerce v Tooheys Ltd (1982) 60 FLR 325 at 331; [1982] FCA 135; Commonwealth v Grunseit (1943) 67 CLR 58 at 82; [1943] HCA 47.

53. The difficulty with the submission based on the aforementioned principles is that the principle applies to legislation and delegated legislation; it does not apply to a private body. The first defendant is exercising a power consequential upon a person (in this case, the plaintiff) seeking to be licensed by them and/or seeking to have a greyhound under her or his control race in the meetings conducted by the first defendant.

54. In other words, the first defendant is acting as a regulator of those persons who voluntarily submit themselves to the control of the first defendant in order to race greyhounds. The first defendant only regulates the conduct of persons who, for their own purposes, voluntarily submit to the control of the first defendant.

55. The power exercised by the first defendant is akin to the power exercised by an unincorporated association over persons who join voluntarily as the members thereof. Another example is a sporting body, exercising powers over those people who seek to participate in sporting activities.

56. Further, the “offence” to which Rule 86(ag) refers is not a criminal offence; it is an offence of the kind for which a participant in a sporting activity might be suspended or a professional person might be disciplined. In other words, it sets forth a regulatory scheme for the conduct of races, under the auspices of the first defendant, and, for those persons who voluntarily embark upon the activity of racing greyhounds, it provides remedies for a breach of the conduct rules for the participation in that racing activity.

57. In that sense, the policy is of general import and applies to all greyhounds involved in a race meeting conducted by the first defendant. Such a circumstance does not render the Hydration Policy ultra vires or invalid. The fact that the Hydration Policy is enforced by virtue of Rule 86(ag) takes the matter no further.

58. One must then deal with the alleged inconsistency between Rule 106(2) and the Hydration Policy. The foregoing analysis as to the voluntary participation in race meetings and the submission of participants to the Rules of the first defendant is relevant to the alleged inconsistency.

59. As earlier stated the “offence” provisions in the Rules are, by analogy, in the same position as that discussed by the Court of Appeal (Basten JA, with whom Leeming and Simpson JJA agreed) in Day v Sanders; Day v Harness Racing New South Wales (2015) 90 NSWLR 764; [2015] NSWCA 324 at [70].

60. The provisions in Rule 106(2) cannot be read in isolation. Rule 106(2) is a general provision dealing with greyhounds, which are otherwise subject to the Rules of the first defendant and with trainers that are, likewise, subject to the Rules of the first defendant. It prohibits greyhounds, generally, from being subjected to “unnecessary pain or suffering”.

61. The provisions of Rule 106(1)(a) provide that the registered person must ensure that greyhounds are provided with “proper and sufficient food, drink and protective apparel” at all times. The Hydration Policy is a policy intended to give effect to the requirement that greyhounds not be subjected to unnecessary pain or suffering and are, at all times, while in the care of a registered person, provided with proper and sufficient drink.

62. The mischief to which the Hydration Policy is aimed is obviously the dehydration of racing greyhounds. That the policy, if implemented, may cause pain or suffering to a particular greyhound does not, without more, render the Hydration Policy inconsistent with Rule 106.

63. A number of examples make the foregoing proposition obvious. Let us assume a particular greyhound cannot drink water and race, without being sick. Such a circumstance would not necessarily be inconsistent with the proposition that the greyhound would, if the greyhound did not drink, suffer dehydration. It may well be, in those circumstances, that the greyhound is not an appropriate dog to race. But, of itself, there is no inconsistency with the Hydration Policy or with the prohibition on subjecting the greyhound to “unnecessary pain or suffering”.

64. Another example may be even more obvious. Let us assume that a greyhound becomes extraordinarily stressed by being kennelled (or, alternatively, by being placed in a starting gate). That would not render those procedures for a race meeting that required kennelling (or, in the alternative, a starting gate) inconsistent with Rule 106(2). Rather, it would point to the fact that the particular greyhound was not an appropriate greyhound for racing, because it could not race in accordance with the prescribed procedures of the first defendant, without suffering pain.

65. There is no evidence before the Court upon which the Court could definitively conclude that Celestial Folk would be subjected to unnecessary pain or suffering by the provision of water, or water with electrolytes or water with electrolytes and milk (assuming the latter two would be allowed under the Hydration Policy).

66. If Celestial Folk would be subjected to unnecessary pain or suffering as a result of compliance with the conditions imposed upon a licensed person in control of a racing greyhound at a meeting, then it may be inconsistent with the provisions of Rule 106(2) for the licensed person to enter the greyhound in a race. It would not render the procedures for the conduct of the meeting or the requirements for the kennelling of the dog (including the provision of water) inconsistent with the provisions of Rule 106(2).

67. As stated, Rule 86(ag) renders policies, adopted by the first defendant, prescriptions by which persons, who embark upon Greyhound Racing under the first defendant’s guidelines, would be bound. Rule 86(ag) is within the power conferred by s 24 of the Act.

68. The policies, to which Rule 86(ag) refers, include the Hydration Policy which provides:

“Subject to any direction from an authorised person, water must be provided during race day confinement to all greyhounds kennelled for the race meeting”.

69. A detailed procedure is prescribed as to the manner in which that water will be provided. It is unnecessary to repeat those detailed prescriptions.

70. It is Rule 86(ag) that renders the policy binding in relation to persons who submit greyhounds to a race meeting conducted by the first defendant. In my view, such a policy does little more than provide the manner in which the requirement in Rule 106(1)(a) is to be implemented in relation to greyhounds at a race meeting.

71. Even if that were not the case, plainly, the first defendant is entitled to make policy. There is no legislative or common law restriction on the first defendant’s capacity to make and to publish policy. Further, the Rules provide that the policy is binding by creating “an offence” for the failure to observe the policy. Nothing in the foregoing renders the act of the first defendant ultra vires or the Hydration Policy invalid.

72. The provisions of s 24 of the Act make clear that a Rule “may apply, adopt or incorporate any publication as in force at a particular time or as in force from time to time”: s 24(2) of the Act. Rule 86(ag) simply renders applicable or adopts or incorporates the policy as published from time to time and makes it binding on licensed persons conducting themselves in a manner to which the policy relates.

73. Lastly, it is necessary to deal with the submission that the Tribunal fell into error, being an error of law, by failing to consider the plaintiff’s submissions before it that the placing of a water bowl in Celestial Folk’s kennel would subject Celestial Folk to “unnecessary pain or suffering”.

74. The rules of natural justice require that a party be given a reasonable opportunity to prepare and to present its case before a Tribunal that is required to act judicially: Sullivan v Department of Transport (1979) 20 ALR 323 at 343; (1978) 1 ALD 383. The tribunal is not required to ensure that a party uses such an opportunity to its best advantage: ibid.

75. A second aspect of procedural fairness, or the rules of natural justice, requires that the case that is presented be heard and dealt with: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [24], [89] and [95]. Such a hearing involves a hearing that is by a person who is not biased, in which the judgment is not capricious or arbitrary and in which the conclusion is rational. In some instances, it may require the provision of reasons.

76. The difficulty with the plaintiff’s submission is that it cannot be said of the Tribunal decision that it is irrational, capricious, arbitrary or denied the plaintiff a hearing. The Tribunal took the view, as has the Court, that there is no inconsistency between the provisions of Rule 106(2) and the provisions of the Hydration Policy. If the evidence was so compelling that it was clear that the provision of water in a bowl to a greyhound in a kennel on the day of a race would cause the greyhound “unnecessary pain or suffering”, then the answer is that the greyhound is obviously not one that the first defendant considers appropriate to have racing at its meetings.

77. In other words, even if, at its highest, the plaintiff could prove the provision of a water bowl and water to Celestial Folk would cause it “unnecessary pain or suffering” that would not be a defence to the charge under Rule 86(ag) that the Hydration Policy was contravened.

78. As a consequence, it was unnecessary for the Tribunal to deal, either in detail or at all, with the proposition and, even if it were, on the view taken by the Court, such an argument could not succeed.

79. Last, either because there is no denial of procedural fairness in failing to deal with the argument, or, because, as a matter of discretion going to the making of orders by this Court, no remedy could or should be granted on the basis of a failure to deal with the evidence and proposition to which the plaintiff refers in this aspect, this submission by the plaintiff must fail.

80. For the foregoing reasons, the plaintiff does not succeed on the Summons.

81. The Court makes the following orders:

1. Summons dismissed;

2. The plaintiff shall pay the first defendant’s costs of and incidental to the proceedings; and

3. Otherwise, the proceedings are dismissed.

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Decision last updated: 28 February 2018