Costello v Racing Appeals Tribunal - [2019] NSWSC 1808

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Costello v Racing Appeals Tribunal [2019] NSWSC 1808
Hearing dates: 13 December 2019
Decision date: 16 December 2019
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) Dismiss the amended summons filed on 18 September 2019.
(2) Order the plaintiff to pay the second defendant’s costs of the proceedings.
Catchwords:
ADMINISTRATIVE LAW – plaintiff subject to investigation by stewards of Racing NSW because the horses of one of his clients were found to contain cobalt – alleged unreasonableness in finding lack of co-operation by plaintiff who gave no evidence of what inquiries he had made following his undertaking to the stewards to make inquiries as to the identity of his supplier
ADMINISTRATIVE LAW – whether denial of procedural fairness for Racing Appeals Tribunal to take into account that the plaintiff did not give or adduce evidence of what inquiries he had made to ascertain details of his supplier
Legislation Cited:
Betting and Racing Act 1998 (NSW), s 13
Racing Appeals Tribunal Act 1983 (NSW), ss 15, 16, 16A, 17, 18
Supreme Court Act 1970 (NSW), s 69
Thoroughbred Racing Act 1996 (NSW), ss 4, 13, 14
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Council of the New South Wales Bar Association v Power (2008) 71 NSWLR 451; [2008] NSWCA 135
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40
Prothonotary of the Supreme Court of New South Wales v Nikolaidis [2010] NSWCA 73
Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8.

Texts Cited:
Rules of Racing of Racing NSW

Category: Principal judgment
Parties: Neil Costello (Plaintiff)
Racing Appeals Tribunal (First Defendant)
Racing New South Wales (Second Defendant)
Representation:
Counsel:
C Street (Plaintiff)
S Dawson SC/ D Forrester (Second Defendant)
Solicitors:
Byles Anjos Lawyers (Plaintiff)
Crown Solicitor’s Office (First Defendant, Submitting Appearance)
Racing New South Wales (Second Defendant)

File Number(s): 2019/263261

Judgment

Introduction

By amended summons filed on 18 September 2019, Neil Costello (the plaintiff) seeks judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) of the decision of the Racing Appeals Tribunal, the first defendant, (the Tribunal) to dismiss his appeal against the warning off directed by Racing NSW, the second defendant.
The Tribunal has filed a submitting appearance. Accordingly, Racing NSW, for which Mr Dawson SC appeared with Ms Forrester, is the only active defendant.

The statutory framework

Before addressing the circumstances in which the plaintiff’s claim for relief arises, it is necessary to outline the jurisdictional basis for the decision of the Tribunal, which is the operative decision, and that of Racing NSW, which was the decision challenged in the Tribunal.

Thoroughbred Racing Act 1996 (NSW)

Section 4 of the Thoroughbred Racing Act 1996 (NSW) established Racing NSW…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWSC 1808
Decision Date: 16 December 2019

CaseChat Overview and Summary

The case of Costello v Racing Appeals Tribunal involved a dispute between the plaintiff, who was a racing agent, and the Racing Appeals Tribunal. The conflict arose when the stewards of Racing New South Wales found that horses owned by one of the plaintiff's clients contained cobalt. The stewards initiated an investigation and found the plaintiff to be lacking in cooperation as he had not provided evidence of the inquiries he made into the identity of the supplier, despite his promise to do so. The plaintiff challenged the Tribunal's decision, arguing that it was unreasonable and a denial of procedural fairness for the Tribunal to consider the lack of evidence provided by the plaintiff regarding the inquiries he made.

The primary legal issue before the court was whether the Racing Appeals Tribunal was entitled to consider the plaintiff's failure to provide evidence of the inquiries he made into the identity of his supplier. The court needed to determine if this constituted a denial of procedural fairness and whether it was unreasonable for the Tribunal to take this into account in its decision-making process. The court also had to consider the extent of the obligation on the plaintiff to cooperate with the investigation and provide evidence of the inquiries he had made.

The court held that the Racing Appeals Tribunal was not precluded from considering the plaintiff's failure to provide evidence of the inquiries he made into the identity of his supplier. The court reasoned that the obligation to cooperate with an investigation includes the duty to provide evidence of the steps taken to comply with that obligation. The court found that the Tribunal's consideration of the plaintiff's failure to provide such evidence did not amount to a denial of procedural fairness, nor was it unreasonable. The court further held that the Tribunal was entitled to take this into account in its decision-making process.

The court's final orders were that the appeal brought by the plaintiff was dismissed, and the decision of the Racing Appeals Tribunal was upheld. The plaintiff was found to be liable for the costs of the appeal.

Orders