Canty & Ors v Greyhound Racing Victoria
[2015] VSC 71
•27 February 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL JURISDICTION
S CI 2015 00928
| BRADLEY CANTY & ORS | Plaintiff |
| v | |
| GREYHOUND RACING VICTORIA | Defendant |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 February 2015 |
DATE OF RULING: | 27 February 2015 |
CASE MAY BE CITED AS: | Canty & Ors v Greyhound Racing Victoria |
MEDIUM NEUTRAL CITATION: | [2015] VSC 71 |
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PRACTICE AND PROCEDURE —Application for interlocutory injunction — Decision by defendant to prevent first plaintiff’s greyhound participating in race — Decision based on retrospective rules introduced after greyhound’s nomination accepted — Construction of rules — Whether first plaintiff denied procedural fairness.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Stirling | Richmond & Bennison Lawyers |
| For the Defendant | Mr O P Holdenson QC with Mr J B Davis | Corrs Chambers Westgarth Lawyers |
HIS HONOUR:
This is an application by the plaintiffs for an interlocutory injunction to restrain the defendant from taking steps to prevent or hinder the greyhound Awesome Project from participating in a race at the Meadows Racecourse tomorrow evening.
The matter has come before me as a matter of urgency during the afternoon of today, Friday, 27 February, and notwithstanding the short notice to counsel on each side, they have each presented their cases very thoroughly and most competently.
The facts may be relatively briefly stated.
Until 13 February, the third plaintiff, Darren McDonald, was a licensed greyhound trainer and he was the registered trainer of the dog ‘Awesome Project’.
The second plaintiff, Joanne Gane, is the de facto partner of Mr McDonald. She, in her own right, is a registered greyhound trainer and owner, licensed by the defendant.
The first plaintiff, Bradley Canty, is the owner of Awesome Project. Until today, that dog had been accepted to run in the race to which I have already referred, which is a qualifying heat for the Australia Cup which is to be held on Saturday, 7 March.
The defendant is Greyhound Racing Victoria.
The background to these matters arises out of the revelation, in recent times, of the practice of using live bait while training registered greyhounds in this state and in other states. That practice is understandably forbidden by the rules of the defendant. It is a practice which would be regarded as abhorrent by any right thinking member of our community.
There is evidence before me that the third plaintiff, Darren McDonald, has in fact been engaged in that practice, in particular in November 2014. However, there is no evidence that the dog in question, Awesome Project, has itself participated in the practice, nor is there any evidence that either of the other plaintiffs, the first plaintiff, Bradley Canty, or the second plaintiff, Joanne Gane, have been at all implicated in the practice. Indeed, as I shall shortly relate, Mr Canty has made a statutory declaration to the effect that he was not aware at all that McDonald had engaged in that practice.
That then is the background to the matter.
As a result of those revelations on 13 February, Mr McDonald, the third plaintiff, was suspended from acting as a trainer of greyhounds. On the same day, the defendant suspended greyhounds, including Awesome Project, which had been trained by McDonald, from racing.
On the next day, 14 February, Mr McDonald transferred the training of the dog, Awesome Project (to which I shall hereinafter refer to as ‘the greyhound’) to Ms Gane.
On 20 February, the defendant sent to both Ms Gane and Mr Canty, an email stating that the defendant’s board had resolved on the previous day to lift the suspension of any greyhounds provided that the owners of those greyhounds provided sworn evidence that the owner had made reasonable inquiries and believed that the greyhound had not been trained using live baiting.
In response to that notification, on 20 February, Mr Canty made a statutory declaration stating that he had made reasonable inquiries and he did not believe that the greyhound or indeed another greyhound, owned by him had been trained using live baiting.
As a result of that, the suspension of the greyhound was lifted.
On the next day, on 21 February, accordingly, the greyhound participated in a race called the Temlee.
The greyhound has also been nominated and accepted for the race to which I have referred, tomorrow at the Meadows, on 28 February which, as I stated, is a qualifying race for the Australia Cup.
Yesterday, on 26 February, the greyhound was collected by or on behalf of Ms Elizabeth Lloyd, who is a registered trainer, and it was conveyed to her property at Anakie. An application to transfer the training of the greyhound to Ms Lloyd was lodged online with the defendant.
The website of the defendant today has listed Ms Lloyd as the trainer of the greyhound and has also listed the greyhound as participating in the race tomorrow with Ms Lloyd as its trainer.
At 4.58 pm yesterday, 26 February, the defendant sent an email to the solicitors for the plaintiffs stating, in effect, that it proposed to introduce new rules 11.7 and 11.8 to the Greyhound Racing Victoria Local Racing Rules, and stating that those rules would be introduced at 9 am on today’s date and that it was then intended, consequent on the introduction of those rules, that the greyhound be scratched from tomorrow’s race, such scratching to take place at 10 am, today’s date.
Pursuant that notification, the rules were passed this morning and introduced and became effective, and at 10 am, the greyhound has been scratched from tomorrow’s race.
Rule 11.7, as amended, in effect provides that no registered person may train any greyhound at any property that is deemed by the defendant's board as being the greyhound training property of a person who has had their registration ceased as a result of having been suspended for a breach or potential breach of the rules.
Rule 11.8 as introduced, in effect, provides that no person who is suspended as a result of unacceptable conduct by that person, shall be permitted to transfer any ownership of any greyhound or any training responsibilities for any greyhound they train, to any other person who resided with them at or about the time of the offence the subject of the suspension.
Rule 11.8, in its last sentence, then provides:
Any transfer that may have occurred in breach of this rule, whether before or after the introduction of this rule, may be voided by the board.
The application that was made on behalf of the plaintiffs was first made, in broad terms, effectively to restrain the defendant from preventing the greyhound racing not only tomorrow but also in the Australia Cup, if it qualifies for that race.
In argument, Mr Stirling disavowed pursuing the second aspect of that relief and rather confined the application before me to an interlocutory injunction to restrain the defendant from implementing its decision to prevent the greyhound from racing in the race tomorrow.
Mr Stirling submitted that the proceeding which would be issued in this case would be brought on a number of different bases. For the purposes of this application he submitted that there is a serious issue to be tried in those proceedings on four bases.
First, he submitted that there was a contract between the first plaintiff, Mr Canty, and the defendant that the greyhound, having been duly nominated and accepted to participate in tomorrow’s race, would be entitled to participate in it and would only be precluded or scratched from doing so in accordance with the rules. He submitted that there is no rule permitting the scratching of a greyhound which had been validly nominated and accepted to participate in tomorrow’s race and which would permit a scratching of that dog in the circumstances that have occurred.
Secondly, Mr Stirling submitted that his client, the first plaintiff, had a right to a hearing in relation to any decision, made by the board of the defendant, to act pursuant to Rule 11.8, and, in particular a decision to void any transfer of the training of the greyhound that would detrimentally affect the rights of the first plaintiff to have the greyhound participate in a race.
He submitted that the first plaintiff was not given any appropriate opportunity to make representations to the board of the defendant before that board, pursuant to Rule 11.8, acted to void the transfer of the training of the greyhound from McDonald to Gain, and acted to scratch the greyhound from participating in tomorrow night’s race.
Thirdly, Mr Stirling submitted that Rule 11.8, in any event, is ineffective to invalidate the constitution of Elizabeth Lloyd as the trainer of the greyhound as of today’s date.
He submitted that the transfer of the training of the greyhound to Elizabeth Lloyd took effect before the board acted under Rule 11.8 to void the transfer of the training from McDonald to Gain. Accordingly, Ms Lloyd is constituted as a valid trainer of the greyhound and no basis exists upon which the defendant can therefore preclude the greyhound from participating in tomorrow’s race.
Fourthly, Mr Stirling submitted that his client would be entitled to rely on an estoppel, and in particular he relied upon the conduct of the defendant between 20 February and 26 February which was conduct that entitled the plaintiffs, and in particular the first plaintiff, to act on the basis that Ms Gane, between those dates, was entitled to lawfully train the greyhound and, on the basis that the dog was not suspended.
Accordingly, he submitted that the first plaintiff acted in reliance on that expectation and a departure from that legitimate expectation would be to his detriment.
On the issue of balance of convenience, Mr Stirling particularly relied on the fact that if the greyhound is not permitted to participate in tomorrow’s race, it would therefore be disentitled from not only qualifying for the prize money in that race but also having the opportunity to qualify for the Australia Cup.
He pointed out to the material in the affidavit to the effect that if the greyhound succeeded in tomorrow’s race and also succeeded in the Australia Cup, not only would the greyhound earn for its owner substantial prize money, but in addition, its value for sale and particularly for stud purposes would be very significantly enhanced.
In those circumstances, he submitted that if the greyhound is not permitted to race tomorrow, irreparable prejudice would be occasioned to the first plaintiff which could not be adequately calculated and compensated in damages.
In response, Mr Holdenson, of Queen’s Counsel, who appeared with Mr Davis on behalf of the defendant, submitted that the plaintiffs had failed to demonstrate any serious issue to be tried or, as the authorities now require it, a prima facie case entitling the plaintiffs to interlocutory relief.
In particular, Mr Holdenson submitted that the effect of a decision made by the board under Rule 11.8, to void the transfer of the training rights of the greyhound from McDonald to Gain, operated ab initio. Accordingly, as a result, Ms Gane was never capable of validly transferring the training of the greyhound to Ms Lloyd.
As a result, Mr McDonald is still the trainer of the greyhound. He is currently under a suspension, to which I have already referred to and, as such, the defendant, under Rule 29.1 is empowered to prevent the greyhound from competing tomorrow.
Mr Holdenson therefore submitted that if there is any contract between the plaintiff and the first defendant, it is subject to Rule 11.8, so that the decision by the board to implement Rule 11.8 in respect to the transfer of the greyhound’s training to Ms Gane has the effect that, under the contract, the defendant, is entitled to and indeed obliged to prohibit the greyhound from participating in tomorrow’s race.
In respect to the second basis relied on by Mr Stirling, Mr Holdenson submitted that in fact the first plaintiff was accorded an appropriate right to make representations in relation to the foreshadowed decision by the board to invalidate the transfer from McDonald to Gane. In that respect, he referred to the email sent by Mr Brian Williams, the steward, in employment of the defendant, to the solicitors for the plaintiffs, notifying the solicitors of the defendant of intention to amend the rules in the manner I have described, and notifying the plaintiff that as from 10 am the following day, that rule would be implemented in relation to the greyhound so it would then be scratched from racing.
In relation to the third argument relied on by Mr Stirling, he submitted, again, that the transfer from Mr McDonald to Ms Gane having been invalidated, Ms Lloyd is not the trainer any more of the greyhound. The trainer is Mr McDonald and accordingly, the dog has been validly scratched from tomorrow's race.
In relation to the submissions made on estoppel, Mr Holdenson submitted that the plaintiffs had failed to demonstrate any detriment if the defendant were to depart from any expectation it had engendered in the plaintiff as a result of its email, dated 20 February.
In determining the application, it is of course to be borne in mind that what is sought is interlocutory relief although, if I were to grant it, that would have a positive effect on the rights of the plaintiffs because the first plaintiff would then be entitled to have the greyhound entered in tomorrow’s race.
In order to establish a right to such relief, the plaintiffs, or at least one of them, must demonstrate a prima facie case, that is the plaintiffs must demonstrate a sufficient likelihood of success at trial to justify, in the circumstances, the preservation of what is described in the authorities as the status quo, namely the right of the greyhound to race in tomorrow’s race.
Secondly, the plaintiffs must also demonstrate that the balance of convenience lies in their favour (see Australian Broadcasting Commission v O'Neill).[1]
[1](2006) 227 CLR 57 at 68 and 81‑2.
In applying that formulation of the principles, a court generally takes whichever course appears to carry the lesser risk of injustice if it should turn out that the decision of the court, on an interlocutory stage, can be described as wrong. In other words, if the court granted the injunction which is not sustained at trial or if the court failed to grant on injunction where the applicant succeeds at trial (see Tymbook Pty Ltd v Victoria).[2]
[2](2006) 15 VR 65 at [35].
The first question, then, is whether the plaintiffs, and in particular the first plaintiff, has demonstrated a prima facie case based on those principles.
Much of Mr Holdenson’s response to the first and third points made by Mr Stirling concerns an interpretation of Rule 11.8, and in particular, the last sentence of that rule and thus an interpretation of the effect of the board acting to void the transfer of the training of the greyhound from McDonald to Gane.
It seems clear from the facts that I have recited, that at the time the board exercised those powers, Ms Lloyd had taken over the training of the greyhound. On its website, the defendant recorded that Ms Gane was the trainer of the greyhound to 26 February and that Ms Lloyd was the trainer as from 27 February.
While the position is not altogether clear, on the limited materials available to me, it would seem at least arguable that, thus, as of today’s date, Ms Lloyd was registered as the trainer of the greyhound.
It is not clear from the materials I have, nor do the rules appear to define, how any transfer of the training of a greyhound is effected. For the purposes of reaching a conclusion in this matter, I am prepared to assume that the decision of the board on 27 February to avoid the transfer of the training by McDonald to Gane operated ab initio. However two points, nevertheless, remain open for consideration.
Firstly, if it were a fact that the training of the greyhound was transferred by Gane to Lloyd, the question remains open as to whether the action of the board today invalidated or voided that transfer, bearing in mind that the transfer took place at a time that preceded the board’s decision under Rule 11.8.
In my view this is a question which is at least arguable in favour of the plaintiffs. I have reached that conclusion because the rules themselves are, of course, delegated statutory legislation. While they purport to provide retrospective rights to the board and powers to the board, as a matter of construction, such rules are ordinarily interpreted quite strictly.
In the absence of clear language, it is at least reasonably arguable, on behalf of the plaintiffs, that the decision by the board on 27 February did not have the effect contended for by Mr Holdenson, that is, retrospectively not only invalidating the transfer from McDonald to Gane, but also retrospectively invalidating any subsequent transfer from Gane to Lloyd which, at the time that transfer was made, was valid.
It is not necessary for me to resolve the argument other than to express the view that it is fairly arguable on behalf of the plaintiffs.
Secondly, it is really not clear, in any event, that the training was transferred by Gane to Lloyd.
In paragraph 23 of his affidavit, the plaintiff's solicitor has sworn that he was informed by Mr Canty, and believed, that at some stage, on 26 February, Awesome Project was collected by or on behalf of Ms Lloyd, transferred to her property at Anakie, and an application to transfer the training of the dog to Ms Lloyd was lodged online with the defendant.
While that paragraph of the affidavit is ambiguous, it seems to suggest that it was the actions of the owner, Canty, rather than the actions of Gane which effectuated the transfer of the training from Gane to Lloyd. If that is correct, and in my view that view of the facts is fairly arguable on the affidavits, then any decision made by the board on this day, 27 February, to avoid the transfer of the training from McDonald to Gane, at least arguably, would not invalidate the subsequent transfer effected by Ms Canty to Ms Lloyd.
Again, I do not put the matter more highly than that point is at least reasonably arguable on behalf of the plaintiffs.
That being so, it would seem to me that both the first and third arguments made by Mr Stirling are sufficiently arguable to constitute a prima facie case for a serious issue to be tried.
In relation to the second matter, that is the denial of rights of procedural fairness, I think it is well arguable on behalf of Mr Canty, that the greyhound, having been validly nominated and accepted to race in tomorrow’s race, and given the repercussions of any scratching of the dog, that he ought to at least be entitled to put his case in relation to the board making a decision under 11.8 that had such an adverse effect on his entitlement to have the dog race tomorrow.
It is true that the defendant notified the solicitors for the plaintiffs of its intention to introduce the new rule and to scratch the greyhound today. However, it is at least arguable that that email did not itself invite a response or even suggest that there would be a right to respond to it. Certainly the solicitors responded to it but it would seem that the decision was already a fait accompli from the email of 26 February.
In those circumstances, I consider that it is arguable on behalf of the first plaintiff that he was deprived a right to have his case properly put on his behalf before the board made or implemented the decision which it has on today.
For the purpose of completion, I must say I do have doubts about the estoppel argument and I would not grant interlocutory relief if that were the only argument advanced on behalf of the plaintiffs today.
In those circumstances, I am persuaded that the first plaintiff has established a serious issue to be tried for a prima facie case on his behalf. The question then arises as to where the balance of convenience lies and this is a matter that does trouble me.
Mr Holdenson, with some force, submitted that what has occurred in relation to live baiting has severely tarnished the issue of greyhound racing in Victoria, indeed in Australia. I think it is common knowledge that as a result of the revelation of that practice, the image of that industry has taken a battering and, if I may say so, correctly so.
The defendant is very concerned to reinstate its image and its reputation and it, indeed, has a responsibility to endeavour to do so.
Mr Holdenson submitted that it is most important, in order to reassure the public, that the defendant has embarked on such a course, that it be able to not only make rules of the type which I have discussed, but to fully implement them in their force.
He said that if all of these actions were injoined by the court, the defendant would be prejudiced in its capacity to reinstate the image of greyhound racing in this state.
Secondly, Mr Holdenson also pointed out that if I were to make an order permitting the greyhound to race tomorrow and a subsequent trial of the proceeding was held, that the plaintiffs did not have any right to such an order, that the participation of the greyhound in tomorrow’s race, would be unfair to other participants in it and indeed would operate to preclude one of the nominated reserves to participate in the race.
On the other hand, Mr Stirling has submitted, with equal force, that the first plaintiff in particular would suffer significant damage if the greyhound were not permitted to compete in tomorrow's race. I have already outlined the matters on which Mr Stirling relied and in particular the importance of the race both in terms of its prize money but also as a qualifying event for the Group 1 Australia Cup which is to be conducted tomorrow week.
The resolution of that issue is not entirely simple. However, it is, I think, most relevant that notwithstanding the concerns of the defendant, nevertheless the defendant did permit the greyhound to compete in the race which was conducted last Saturday and it did permit Ms Gane to continue to train the greyhound between 20 February and 26 February at the same property at which Mr McDonald trained his greyhound.
I do accept, otherwise, the points made by Mr Holdenson but those observations, it seems to me, do operate to dilute some aspects of the submissions made by Mr Holdenson as to prejudice.
In those circumstances, as I say, although with some difficulty, I have determined that the balance of convenience does lie in favour of the grant of an injunction. I am persuaded to that effect on the basis that on all the evidence there is no suggestion that Mr Canty had anything to do with live bait training and in that sense he is entirely innocent in relation to the matter. The race is important to the ability of the greyhound to qualify for the Australia Cup and to its value to its owner.
In those circumstances, I have come to the conclusion, doing the best that I can on short notice, that I should grant an injunction. Subject to hearing from counsel, I have endeavoured to formulate the injunctions that are necessary.
Firstly, on the plaintiff giving the usual undertaking as to damages or the plaintiffs and also undertaking to issue proceedings in this matter no later than 2.15 Monday.
MR STIRLING: We give that undertaking.
HIS HONOUR: I therefore make the following two orders.
Firstly, I shall grant an order restraining the defendants, its servants or agents from implementing its decision not to permit the greyhound, Awesome Project, from participating in the 11th race at Meadows Racecourse on 28 February 2015.
Secondly, I shall make an order that the defendant take all steps necessary to set aside that decision and to enable Awesome Project to participate in that race.
Thirdly, subject to hearing from counsel, I shall order the costs of this application be reserved.
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