| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 02639
| GLENN DOUGLAS and ELLEN TORMEY | Appellants |
| v | |
| HARNESS RACING VICTORIA | Respondent |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 August 2020 |
DATE OF JUDGMENT: | 8 September 2020 |
CASE MAY BE CITED AS: | Douglas v Harness Racing Victoria |
MEDIUM NEUTRAL CITATION: | [2020] VSC 568 |
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ADMINISTRATIVE LAW – Appeal from decision of Victorian Civil and Administrative Tribunal – Tribunal determined that it lacked jurisdiction to review decision of Racing Appeals and Disciplinary Board made after commencement of Racing Amendment (Integrity and Disciplinary Structures) Act 2018 (Vic) – Construction of transitional provisions – Tribunal had no jurisdiction – Appeal dismissed – Racing Act 1958 (Vic), ss 83OH, 108, 109, 110 – Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148.
STATUTES – Interpretation – Whether appellants accrued a right to apply to Tribunal for review under former s 83OH of Racing Act 1958 (Vic) – No accrued right – Contrary intention expressly appears – Interpretation of Legislation Act 1984 (Vic), s 14(2).
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APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Mr D Sheales | Cockburn & Co |
| For the Respondent | Mr A Anderson | Minter Ellison |
HER HONOUR:
Glenn Douglas and Ellen Tormey are both licensed harness racing trainers. Harness Racing Victoria (HRV) is constituted under the Racing Act 1958 (Vic) to control the sport of harness racing in Victoria. Its functions include making the rules of harness racing[1] and, in accordance with those rules, registering trainers, and disqualifying or suspending any person from participating in harness races.[2]
[1]Racing Act 1958 (Vic), s 49.
[2]Racing Act, s 45(1)(a) and (c).
On 22 May 2019, HRV charged Mr Douglas and Ms Tormey with serious offences related to the alleged stomach tubing of a horse trained by Ms Tormey, The Boss Man. Mr Douglas was charged with stomach tubing the horse within 48 hours of the commencement of a race or meeting for which he was nominated, and Ms Tormey was charged with allowing or permitting Mr Douglas to do so. The HRV Racing and Disciplinary Board described the background to the charges as follows:
On the afternoon of 1 December 2018 Mr Neal Conder and Mr Russell Anderson, stewards of the HRV Integrity Department, carried out an inspection of Ms Ellen Tormey’s licenced training establishment at 681 McIvor Highway, Junortoun.
That evening a horse, The Boss Man, trained by Ms Tormey was scheduled to race in the first round of the qualifying heats of the TAB Inter Dominion Trotting Championship at the harness racing meeting at Melton in race 4 at 7.34pm.
The act of stomach tubing a horse involves the passing of a rubber or plastic tube, of appropriate dimensions, through the nostril of a horse, through the oesophagus and into the stomach. A funnel is attached to the other end of the tube into which a prepared mixture, usually in a bucket, is poured so…
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- Case
- [2020] VSC 568
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the appellants had accrued a right to apply to VCAT for review of the RADB's decision prior to the commencement of the Racing Amendment (Integrity and Disciplinary Structures) Act 2018 (Vic). The court was also required to interpret the transitional provisions in the 2018 amending Act to determine whether they expressly appeared to displace any accrued right. The court considered whether the appellants' right to apply for review was dependent on the continued existence of section 83OH of the Racing Act 1958 (Vic), and if so, whether the appellants' right had been extinguished by the commencement of the 2018 amending Act.
The court found that the appellants did not have an accrued right to apply to VCAT for review of the RADB's decision. The court held that the transitional provisions in the 2018 amending Act expressly appeared to displace any accrued right to apply for review under former section 83OH of the Racing Act 1958 (Vic). The court noted that the appellants' right to apply for review was dependent on the continued existence of section 83OH, and that the appellants' right had been extinguished by the commencement of the 2018 amending Act. The court also noted that the appellants' right to apply for review was not a vested right, but rather a statutory right that was dependent on the continued existence of the relevant statutory provisions. The court concluded that the appellants' right to apply for review had been extinguished by the commencement of the 2018 amending Act, and that VCAT did not have jurisdiction to review the RADB's decision.
The appeal was dismissed, and VCAT's decision was affirmed.
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