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Douglas v Harness Racing Victoria

Douglas v Harness Racing Victoria

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Case Copied 8 September 2020 34 min read

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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…

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: [2020] VSC 568
Decision Date: 8 September 2020

CaseChat Overview and Summary

In the case of Douglas v Harness Racing Victoria, the appellants contested a decision made by the Victorian Civil and Administrative Tribunal (VCAT), which found that it did not have the jurisdiction to review a decision of the Racing Appeals and Disciplinary Board (RADB). The decision of the RADB had been made after the commencement of the Racing Amendment (Integrity and Disciplinary Structures) Act 2018 (Vic). The case was ultimately decided in the Court of Appeal of the Supreme Court of Victoria. The appellants argued that they had an accrued right to apply to VCAT for review under former section 83OH of the Racing Act 1958 (Vic) prior to the commencement of the 2018 amending Act.

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.

Orders