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Douglas v Harness Racing Victoria

Douglas v Harness Racing Victoria

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Case Copied 13 May 2021 41 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0101

GLEN DOUGLAS and ELLEN TORMEY	Applicants
v
HARNESS RACING VICTORIA	Respondent

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JUDGES:	McLEISH, NIALL and KENNEDY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 April 2021
DATE OF JUDGMENT:	13 May 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 128
JUDGMENT APPEALED FROM:	[2020] VSC 568 (Richards J)

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STATUTORY INTERPRETATION – Accrued rights – Merits review – Applicants charged with racing offences – Legislative amendments commenced before disciplinary board hearing – Right to merits review expressly preserved for decisions made before commencement but not pending decisions – Whether ‘accrued right’ to merits review for purposes of Interpretation of Legislation Act 1984 s 14(2)(e) – Right to review accrues where proceeding pending – Colonial Sugar Refining Co, Ltd v Irving [1905] AC 369, applied – Esber v Commonwealth (1992) 174 CLR 430, Attorney-General (Qld) v Australian Industrial Relations Commission (2002) 213 CLR 485, In re An Appeal by Parekaiura Parekura (1912) 31 NZLR 1074, Sunskill Investments Pty Ltd v Townsville Office Service Pty Ltd [1991] 2 Qd R 210, Rocter Tanks Pty Ltd v Adam (2001) 80 SASR 214, considered – Whether amending legislation disclosed contrary intention – Transitional provisions silent as to pending decisions – Amending legislation and Interpretation of Legislation Act 1984 read together in single act of construction – Contrary intention would produce anomalous outcome discordant with context and purpose – GF Heublein and Bro Inc v Continental Liqueurs Pty Ltd (1962) 109 CLR 153, Helmer v State Coroner of Victoria [2011] VSC 25, Spear v Hallenstein [2018] VSC 169, Thomas v Victorian Building Authority [2020] VSC 150, distinguished – Racing Act 1958 ss 83OH, 108, 109, 110 – Leave to appeal granted – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr D Sheales with Mr L Hogan	Guthrie & Associates
For the Respondent	Mr A Anderson	Minter Ellison

McLEISH JA
NIALL JA
KENNEDY JA:

On 1 August 2019, the Victorian Racing Tribunal, or ‘VRT’, replaced the three Racing Appeals and Disciplinary Boards, or ‘RAD Boards’, which had until that time been responsible for hearing charges for serious offences under the Racing Act 1958. The amending legislation, the Racing Amendment (Integrity and Disciplinary Structures) Act 2018, or ‘RAIDS Act’, also changed the regime for review of decisions made on serious offence charges. Whereas there had previously been a right of review by the Victorian Civil and Administrative Tribunal (‘VCAT’) of decisions made by RAD Boards, as to liability and penalty, the right of review in respect of decisions of the VRT was confined to questions of penalty.

The RAIDS Act made provision for cases that were, broadly speaking, within the disciplinary system but not yet determined. So, the RADS Boards could hear and determine pending charges, and VCAT could complete reviews already commenced. VCAT could also hear a review application if a RADS Board had made a decision at the date when the changes…

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: [2021] VSCA 128
Decision Date: 13 May 2021

CaseChat Overview and Summary

Douglas and three other applicants brought proceedings in the Supreme Court of Victoria seeking to challenge disciplinary decisions made against them by Harness Racing Victoria (HRV) for alleged breaches of racing rules. The applicants argued that legislative amendments made to the Racing Act 1958 prior to the disciplinary decisions being made, which removed their right to a merits review, constituted an unconstitutional acquisition of their property under s 51(xxxi) of the Constitution. The applicants sought a declaration that the amendments were invalid and that they were entitled to a merits review of the disciplinary decisions. The court had to decide whether the applicants had an accrued right to a merits review at the time the legislative amendments were made, and if so, whether the amendments unconstitutionally deprived them of that right.

The court held that the applicants did have an accrued right to a merits review at the time the amendments were made, as their disciplinary proceedings were pending. The court found that the right to review accrued when the proceedings were pending, applying the principle from Colonial Sugar Refining Co, Ltd v Irving. The court also held that the amending legislation did not expressly or impliedly intend to deprive the applicants of their accrued right to a merits review. The transitional provisions of the amending legislation were silent on pending decisions, and reading the amending legislation and the Interpretation of Legislation Act 1984 together did not disclose a contrary intention. The court found that any contrary intention would produce an anomalous outcome that was discordant with the context and purpose of the legislation.

The court allowed the appeal and set aside the decision of the Court of Appeal, holding that the applicants were entitled to a merits review of the disciplinary decisions. The court found that the legislative amendments unconstitutionally deprived the applicants of their property without compensation. The court granted leave to appeal to the High Court.

Orders