Beaton v Equestrian Federation of Australia Limited
[2003] VSC 252
•28 May 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 5993 of 2003
| GARY WAYNE BEATON and BRIAN JOHN SCHOLES | Plaintiffs |
| v. | |
| EQUESTRIAN FEDERATION OF AUSTRALIA LIMITED | Defendant |
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JUDGE: | CUMMINS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 May 2003 | |
DATE OF JUDGMENT: | 28 May 2003 | |
CASE MAY BE CITED AS: | Beaton & Scholes v Equestrian Federation of Australia Limited | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 252 | |
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P.J. Hayes | Simon Nixon |
| For the Defendants | Mr A.A. Nolan | Lander & Rogers |
HIS HONOUR:
By summons filed in this Court yesterday, returnable today, the plaintiffs, Mr G.W. Beaton and Mr B.J. Scholes, seek an order that the defendant, the Equestrian Federation of Australia Ltd, be restrained from proceeding until further order upon a hearing of matters set out in an Infraction Notice of 17 September 2003, before its Procedures and Disciplinary Committee, to sit this evening at 7.30 p.m. unless the defendant allows the plaintiff to be legally represented at any such hearing.
The plaintiffs are the owners of a horse, Lemrac’s Dancing Poet. The horse was the winner of the 2002 National Show Horse of the Year competition, held at Werribee Park on 6 December 2002, which was conducted by the Equestrian Federation of Australia.
At the conclusion of the competition, the horse was swabbed for the purposes of conducting a doping test. Blood and urine samples were taken. The first plaintiff, Mr Beaton, was present during the swabbing of the horse. At the conclusion of the swabbing Mr Beaton was provided by the vet taking the sample, with a sample identity card. On 27 November 2002 Mr R. Cleveland, the national doping officer of the defendant, informed Mr Beaton that the horse had returned a positive result for the testing conducted following the swab taken on 6 December 2002. The prohibited substance detected was Boldenone, an anabolic steroid.
Ultimately, on 26 March 2003, the defendant, by its executive officer, Mr C. Wood, wrote to the first plaintiff, stating that a Procedures and Disciplinary Committee of the defendant's Victorian Branch would be convened to enquire into the matter of the return of a positive swab. The letter concludes, "Either you, or a delegate, not a legal representative, may address the committee. Please confirm that you are able to attend this inquiry."
Then an Infraction Notice, being Exhibit SAN11 to the affidavit of Mr S.A. Nixon, solicitor for the plaintiffs, sworn 27 May 2003, was served on the second plaintiff, Mr Scholes. It was dated 17 February 2003 and signed by Mr R. Cleland, anti-doping-control officer, and Mr C. Wood, Executive Director of the defendant (Victorian Branch). The Notice is of 15 paragraphs. It sets out the relevant particulars.
The solicitors for the plaintiffs, on 13 May 2003, wrote to the executive director of the defendant, in part of which is stated, "Our clients intend to be legally represented at the hearing proposed by the EFA." This was a little earlier than the Notice of Hearing, which was dated 16 May 2003, being Exhibit SAN14 to Mr Nixon's affidavit of 27 May. The Notice sets out the various particulars as to the hearing. Paragraph six states, "Please note at the hearing you can produce witnesses but are not entitled to legal representation." Then on 22 May 2003 Mr Nixon wrote to the solicitors for the defendant and said, in part, "Kindly confirm that your client will allow my clients shall be legally represented at any hearing." In reply, on 23 May 2003, the solicitors for the defendant wrote to Mr Nixon, in part stating, paragraph 3, "Our client is prevented by its own rules to allow legal representation at the initial hearing. We are instructed that legal representation is permitted at any appeal from this hearing. We are also instructed that legal assistance at the hearing is permitted. That is legal representation can be available to parties outside the hearing room for consultation if necessary."
As has been properly relied upon by Mr Nolan, counsel for the defendant, the arrangements between the plaintiffs and the defendant are contractual arrangements and the plaintiffs are bound by the terms of the contract entered into.
The Disciplinary By-Laws of the defendant, made 12 July 1999, are Exhibit GWB15 to the second affidavit of the first plaintiff. Clause 12 states:
"A person likely to be adversely affected by the decision of the Tribunal may, with the leave of the Tribunal, be present, call evidence and put questions to witnesses at any hearing."
Clause 14 states:
"No solicitor or counsel will be heard on behalf of any organisation or person at any disciplinary proceedings."
Those By-Laws are abundantly clear on their face. Because of that precision the plaintiffs turn to another area of support, variously referred to as superior or more relevant, and that is the Anti-Doping Laws.
The Infraction Notice of 17 February 2003 by paragraph 2 in relevant part states that the defendant’s Anti-Doping By-Law (12 August 2002) applied to the event on 7 December 2002. The Anti-Doping By-Law is exhibited as SAN4 to the first affidavit of Mr Nixon. Doping is defined separately in the case of an athlete and in the case of a horse. Doping is defined to mean "(a) the presence in a horse's sample of substances belonging to classes of pharmacological agents prohibited by FEI" (the Federation Equestre Internationale). Under the heading “Obligations” the following appears:
"3.4: Except to the extent required by the rules of FEI, EFA complies with the Anti-Doping Policy of the AOC and the Code (to the extent and not inconsistent with the FEI anti-doping policy)."
Under the heading "Hearing Body," paragraph 9.1 provides:
"A hearing by the EFA Disciplinary Committee will be conducted pursuant to the EFA Constitution, subject to this by-law."
It will be recalled that the Disciplinary By-Laws of the EFA state in clause 14: "No solicitor or counsel will be heard on behalf of any organisation or person at any disciplinary proceedings."
Paragraph 9.2 of the Anti-Doping Code provides:
"A hearing by CAS [the Court of Arbitration] will be conducted pursuant to the Code of Sports-Related Arbitration. All parties to any such hearing may appear in person (or if a body corporate to be represented by its officers) or to be represented by their legal representative."
It is plain, in the scheme to which the plaintiffs agreed, the provision of solicitor or counsel was forbidden at first instance but was available on appeal and, indeed, the provisions of the Anti-Doping By-Laws support that scheme because it is evident that 9.2 picks up the CAS right of hearing, whereas 9.1 is silent as to legal representation at first instance in relation to anti-doping matters, and simply refers across to the Disciplinary By-Laws which are specific, as I have stated, in paragraph 14.
The World Anti-Doping Code, which is exhibited to the second affidavit of Mr Nixon as SAN18, as at 20 February 2003, by Article 8, headed, "Right to a Fair Hearing," states:
"Each Anti-Doping Organisation with responsibility for drugs management shall provide a hearing process for any person who is asserted to have committed an anti-doping rule violation. Such hearing process shall address whether an anti-doping violation was committed, and if so, the appropriate consequences. The hearing process shall respect the following principles: [The third dot point is] The right to be represented by counsel at the person's own expense."
Immediately following the last of the eight dot points, the comment is inserted in parenthesis:
"Comment: this Article contains basic principles relative to ensuring a fair hearing for persons asserted to have violated anti-doping rules. This Article is not entered to supplant each Signatory's own rules for hearings but rather to ensure that each Signatory provides a hearing process consistent with these principles."
Indeed, in the Introduction to the Code, under the heading, "The Code", the following is stated:
"The Code ... is intended to be specific enough to achieve complete harmonisation on issues where uniformity is required, yet general enough in other areas to permit flexibility on how agreed upon anti-doping principles are implemented."
Mr Hayes relies upon Article 8 of the Code in support of his essential submission that the right of legal representation should be articulated at this evening's hearing. It is apparent, as I have stated, that the Disciplinary By-Laws which would appear to be the most immediate applicable law, by paragraph 14, do not support that claim. The Anti-Doping By-Law, which I have reviewed, does not support it, and the closest to Mr Hayes's submission is the World Anti-Doping Code, which is not mandatory for setting forth an applicable requirement to tonight's proceeding but is cultural, contextual and a matter of guidance.
It is plain from Article 8 that it is not intended, or expressed to be, a matter of finality as to its application but is, rather, a matter of principle which is not intended to supplant each society's own rules. So even on its own terms it falls short of that which is contended by the plaintiffs, and quite apart from Mr Nolan's submission as to its applicability to this event.
One then is left with general principle. Mr Hayes has most eloquently argued that as a matter of general principle, that is to say under the common law, the right to legal representation ought be imposed upon tonight's proceeding. He points to the effect upon the livelihood of the plaintiffs as set forth in paragraphs 17 to 19 of Mr Beaton's first affidavit. He points to the stigma and significance of a doping offence and he relies upon the development of the law since Cameron and Ors v. Hogan[1] through McKinnon v. Grogan[2] to Freedman v. Petty and Ors. and Greyhound Racing Control Board[3].
[1](1934) 51 C.L.R. 358 particularly at 384.
[2](1974) 1 NSWLR 275 at 297-298 per Wootton J.
[3](1981) V.R. 1001 at 1014 per Marks J.
I am unpersuaded that the consequence which is feared by the plaintiffs is such as to warrant any intervention by the common law. There are numerous hearings which involve quite significant consequences upon individuals at first instance and as for which, repeatedly, the courts have refused to inject the right of legal representation at first instance. All the more so where there is a consensual contractual arrangement between the parties and, further, where there is a right of legal representation upon appeal, all of which occurs here.
Accordingly, I am not satisfied that the requirements of natural justice, vital though they are, warrant any intervention in this case. Mr Nolan has referred to a number of authorities which do not need rehearsal by me: R. v. Blizzard, ex parte Downs[4], McLelland v. Burning Palms Surf Lifesaving Club[5] and other authority, and academic writing as well. The principles are well known. I am not satisfied that the factual substratum in this case is such as to enliven the Court's interference as a matter of natural justice in the proceedings this evening. On the contrary, I am entirely unsatisfied that any interference, as a matter of natural justice, is warranted.
[4](1993) 1 Q.B. 151 at 163 per Derrington J.
[5](1991) A.L.R. 759 at 796 per Campbell J. (paras. 144 and 145).
For those reasons I refuse the application and the relief sought.
(Discussion ensued re costs.)
HIS HONOUR: I order that the plaintiffs pay the defendant’s costs in these proceedings.
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