Goodrich v Racing Victoria Racing Appeals and Disciplinary Board
[2020] VSCA 110
•8 May 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2019 0058
| KATE GOODRICH | Applicant |
| v | |
| RACING VICTORIA RACING APPEALS AND DISCIPLINARY BOARD | First Respondent |
| and | |
| RACING VICTORIA LIMITED | Second Respondent |
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| JUDGES: | TATE, KYROU and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 30 April 2020 |
| DATE OF JUDGMENT: | 8 May 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 110 |
| JUDGMENT APPEALED FROM: | [2019] VSC 248 (Niall JA) |
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ADMINISTRATIVE LAW – Judicial review – Applicant charged with refusing to allow two stewards to inspect a horse on a race day – Racing Victoria Racing Appeals and Disciplinary Board decision to suspend applicant’s racehorse trainer’s licence for three months – Review of that decision by Victorian Civil and Administrative Tribunal – Racing Victoria proposed order that Board’s decision be set aside with costs – Applicant rejected proposed order and sought documents to determine whether two stewards validly appointed – Tribunal dismissed proceeding on basis its continuation was an abuse of process – Whether judge erred in finding open to Tribunal to do so – Leave to appeal granted – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R Appudurai | Davis & De La Rue |
| For the First Respondent | No appearance | |
| For the Second Respondent | Mr O P Holdenson QC with Mr E Nekvapil | MinterEllison |
TATE JA
KYROU JA
EMERTON JA:
Introduction and summary
The applicant, Kate Goodrich, is licensed as a racehorse trainer under the Australian Rules of Racing (‘AR Rules’). She pleaded guilty to a charge of breaching r 8D of the AR Rules on the basis that on a race day — 12 December 2016 — she did not allow two individuals who identified themselves as stewards of the second respondent, Racing Victoria Ltd (‘Racing Victoria’), to inspect a horse which was entered to race later that day. On 10 March 2017, the first respondent, Racing Victoria Racing Appeals and Disciplinary Board (‘RADB’), convicted her of the charge and suspended her licence for three months, but wholly suspended that penalty for 12 months (‘RADB decision’). From 13 December 2016 until the RADB decision, the applicant was unable to nominate horses trained by her for races in Victoria.
On 26 April 2017, the applicant applied to the Victorian Civil and Administrative Tribunal (‘VCAT’) for a merits review of the RADB decision. As Racing Victoria was the prosecuting authority, it was required to adduce evidence in support of the charge, otherwise VCAT would not be able to affirm the RADB decision.
On 4 October 2017, Racing Victoria advised that it would not adduce evidence in support of the charge and that it would seek an order that the RADB decision be set aside and that it pay the applicant’s costs of the VCAT proceeding.
On 9 October 2017, the applicant advised that she would not be in a position to decide whether to agree to Racing Victoria’s proposed order until she was given an opportunity to inspect the documents by which the two individuals were appointed as stewards. She also advised that a witness summons would be issued for the production of the appointment documents.
On 16 October 2017, a senior member of VCAT directed the Principal Registrar of VCAT not to issue the witness summons.
On 13 November 2017, VCAT made an order by which it required the applicant to indicate whether she consented to Racing Victoria’s proposed order. VCAT’s order provided that, in the event that the applicant did not consent, the parties had to file written submissions on whether VCAT should, on its own initiative, strike out or dismiss the proceeding as an abuse of process under s 75(1) of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) or make an order under s 51A inviting Racing Victoria to reconsider the RADB decision.
Section 75(1) of the VCAT Act provides that, at any time, VCAT may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion, is frivolous, vexatious, misconceived or lacking in substance, or is otherwise an abuse of process. Section 51A(1) provides that, at any time in a proceeding for review of a decision, VCAT may invite the decision-maker to reconsider the decision under review. Section 51A(2) provides that, on being invited to reconsider a decision, the decision-maker may affirm it, vary it, or set it aside and substitute a new decision.
The applicant did not consent to Racing Victoria’s proposed order. On 28 March 2018, without any further hearing, VCAT made the following order (‘VCAT’s March 2018 order’):
1Under s 50 of the [VCAT Act], Racing Victoria is joined as second respondent to this proceeding.
2Under s 75 of the VCAT Act, the proceeding is dismissed insofar as the applicant seeks to rely on whether or not relevant instruments of delegation/appointment … validly appointed persons purporting to be Stewards of Racing Victoria Stewards who, on 12 December 2016, came to conduct a race day stable inspection and inspect a horse racing that day.
3On or before 13 April 2018, the applicant is to file and serve advice as to whether she consents to the [RADB] decision … being set aside and that Racing Victoria be ordered to pay her costs in this proceeding.
4Costs reserved.
In accordance with para 1 of VCAT’s March 2018 order, Racing Victoria became the second respondent to the VCAT proceeding and became the contradictor, with RADB not taking an active role.
In accordance with para 3 of VCAT’s March 2018 order, the applicant advised VCAT that she did not consent to the making of Racing Victoria’s proposed order.
On 20 April 2018, VCAT made the following order (‘VCAT’s April 2018 order’) and set out the following reasons for the order:
1Under s 75(1) of the [VCAT Act], this proceeding is dismissed as an abuse of process.
2[Racing Victoria] must pay the applicant’s costs on the County Court costs scale, to be assessed by the Costs Court, if the parties cannot agree an amount.
Reasons
With the applicant by letter, dated 12 April 2018, advising that the applicant does not consent to the decision under review being set aside, the above orders are made, as foreshadowed in [VCAT’s] Orders and Reasons of 28 March 2018.
On 18 May 2018, the applicant applied to the Trial Division for leave to appeal against para 1 of VCAT’s April 2018 order. She relied on eight grounds of appeal. In substance, she alleged that VCAT erred in not examining whether the two stewards had been validly appointed and in finding that her continuation of the proceeding constituted an abuse of process, and that VCAT’s decision was vitiated by apprehended bias.
On 18 April 2019, Niall JA, sitting as the Trial Division, granted leave to appeal on all but two of the grounds of appeal, but dismissed the appeal.[1]
[1]Goodrich v Racing Victoria Racing Appeals and Disciplinary Board [2019] VSC 248 (‘Reasons’). As discussed at [39] below, the judge refused leave to appeal in relation to grounds 5 and 6.
The applicant now seeks leave to appeal against the judge’s decision. She relies on five proposed grounds, which are set out at [42] below.
For the reasons that follow, the application for leave to appeal will be granted and the appeal will be allowed.
Facts, procedural history and VCAT’s orders
Circumstances giving rise to the charge against the applicant and its outcome
The charge alleging that the applicant breached r 8D of the AR Rules was laid by Racing Victoria on 4 January 2017. The particulars appended to the charge stated the following:
(a) The applicant maintained licensed racehorse training premises in Kilmore.
(b)The applicant was training a horse called Street Stalker which, on 12 December 2016, was entered to run in Race 6 at Kilmore.
(c)On that day, two named stewards attended the applicant’s premises for the purpose of conducting a race day stable inspection.
(d)The applicant did not allow the stewards to undertake the inspection or to examine the horse and she refused to obey a reasonable direction to allow an inspection of the horse.
(e)In engaging in this conduct, the applicant contravened r 8D of the AR Rules in that she:
(i)obstructed and/or hindered the stewards from exercising the powers vested in them under r 8D and/or carrying out their duties; and/or
(ii)refused to obey reasonable directions of the stewards where those directions were made in the exercise of powers under r 8D and/or in the carrying out of their duties.
A stewards’ inquiry later on 12 December 2016 decided to remove Street Stalker from Race 6. Also, by letter dated 13 December 2016, the Chairman of Stewards advised the applicant that the stewards would not approve nominations and entries of horses trained by her until the issues arising from 12 December 2016 had been resolved. Soon after, a similar position was taken by Racing New South Wales.
On 18 January 2017, at a directions hearing before RADB, the applicant agreed that she would not nominate horses for races until the charge had been resolved. By reason of her agreement, and the stewards’ decision set out in the Chief Steward’s letter dated 13 December 2016, the applicant was prevented from nominating horses between that day and the date of the RADB decision (10 March 2017), a period of approximately three months.
Commencement of VCAT proceeding and ensuing correspondence between parties
Following the applicant’s application to VCAT for a review of the RADB decision on 26 April 2017, the proceeding was adjourned by consent on a number of occasions.
By email dated 4 October 2017 to VCAT, with a copy to the applicant’s solicitors, Racing Victoria’s solicitors stated that the 12 month period over which the penalty had been suspended was mostly spent and would very likely lapse by the time the proceeding was heard and determined by VCAT. The email then stated as follows:
Racing Victoria therefore considers there is no merit in pursuing the decision and penalty the subject of review. In the interests of avoiding the expense and resources associated with continuing the proceeding, Racing Victoria will therefore not pursue the charge or penalty the subject of this review, or call any evidence in support, and will consent to pay the applicant’s costs.
…
Racing Victoria makes application to Senior Member Proctor for orders disposing of this proceeding, by ordering that:
1The decision and penalty of [RADB] dated 10 March 2017 be set aside; and
2 Racing Victoria pay [the applicant’s] costs of the proceeding.
By letter dated 9 October 2017, the applicant’s solicitors advised VCAT that ‘the resolution proposed by [Racing Victoria] … is not the most advantageous resolution potentially available to the [applicant]’. The letter attached correspondence between the parties in which the applicant had unsuccessfully sought disclosure of the instruments of appointment of the two stewards. It also noted that a charge of refusing to allow stewards to conduct a routine race day inspection could not be substantiated unless the persons who sought to carry out that inspection had been stewards properly appointed. It then stated:
On behalf of [the applicant] I note that she cannot be in a position to properly evaluate the relative merits of the disposition disclosed to [VCAT] in the [Racing Victoria] email, until such time that her counsel and I have had the opportunity to consider the appointment documents.
The letter also stated that the applicant’s solicitors had instructions to issue a witness summons for production of the appointment documents.
On 16 October 2017, a senior member of VCAT ordered that a directions hearing be held on 31 October 2017 and directed the Principal Registrar of VCAT not to issue the proposed witness summons. The senior member gave the following reasons for the order and direction:
An unusual scenario has arisen in this proceeding whereby [Racing Victoria] seeks consent orders, by email dated 4 October 2017, setting aside the [RADB] decision … and that Racing Victoria pay the applicant’s costs of this proceeding.
This is, on its face and subject to submissions, the optimal outcome in this proceeding which the applicant could achieve.
The question arises whether the applicant further pursuing issues in this proceeding is an abuse of process. In this circumstance, unless the parties agree consent orders beforehand, a directions hearing is required in this proceeding. It is not appropriate to at this time leave open the possibility of Racing Victoria being required to respond to a summons for documents, as foreshadowed [in] the email on behalf of the applicant dated 9 October 2017.
Directions hearing before VCAT on 31 October 2017
At the directions hearing on 31 October 2017, counsel for the applicant submitted that the applicant had a right to put the prosecution to its proof, and that a fundamental basis of that proof was the authority of the stewards. Counsel submitted that VCAT could not make any decision — let alone a decision that the outcome proposed by Racing Victoria was an optimal solution — without seeing the appointment documents, which Racing Victoria had failed to disclose. Counsel contended that, in the absence of those documents, the applicant was not in a position to ‘make [the] call’ that the proposal of Racing Victoria was the most advantageous resolution potentially available to her. Counsel referred to the applicant’s desire to be exonerated in the VCAT proceeding.
Later in the hearing, counsel for the applicant said that, if the applicant succeeded in establishing in the proceeding that the two stewards had not been validly appointed, that would open up the possibility of her obtaining appropriate recompense — in a jurisdiction other than VCAT — for the loss of income for the months that she was not permitted to nominate horses.
In response, counsel for Racing Victoria submitted that, in the light of Racing Victoria’s proposed order, a continuation of the proceeding by the applicant would constitute an abuse of process. This was said to be because it would demonstrate that she was seeking to achieve a collateral purpose. Counsel accepted that the normal finding that RADB made when insufficient evidence was adduced in support of a charge was that the charge was not proven. Counsel submitted that, should the matter proceed to trial, it would take one to two days of legal argument and then a further half day to determine the proceeding on its merits. The subject matter of the legal argument was not identified.
VCAT’s order of 13 November 2017
On 13 November 2017, VCAT made the order summarised at [6] above and published its reasons for that order.[2] It concluded that it did not have power under s 75 of the VCAT Act to summarily terminate the proceeding by setting aside the RADB decision. However, it said that it had the power to invite the applicant to consent to an order setting aside the RADB decision and, in the event she declined to do so, to invite further submissions from the parties. Those submissions would deal with whether the proceeding should be struck out or dismissed under s 75 of the VCAT Act on the basis that its continuation would constitute an abuse of process or whether VCAT should invite reconsideration of the RADB decision under s 51A.
[2]Goodrich v Racing Victoria Racing Appeals and Disciplinary Board [No 1] [2017] VCAT 1842 (‘VCAT Reasons No 1’).
VCAT went on to state that even if the matter proceeded to trial and it found that the two stewards had not been properly appointed, then it would ‘likely, under s 51 of the VCAT Act, set aside the [RADB] decision … and consider any application for costs’.[3] VCAT noted that, whatever the outcome of the proceeding, it did not have the power to affect the previous decisions of Racing Victoria and Racing New South Wales preventing the applicant from entering horses in races. VCAT then said that use of the proceeding by the applicant to obtain the appointment documents for deployment in some other proceeding would constitute an impermissible collateral purpose.
[3]VCAT Reasons No 1 [38].
VCAT’s order of 28 March 2018
The applicant did not consent to Racing Victoria’s proposed order and both parties filed written submissions in accordance with VCAT’s order of 13 November 2017. Without any further oral hearing, VCAT made the March 2018 order set out at [8] above, 18 days after the end of the 12 month suspension period referred to at [1] above.
VCAT gave reasons for making the March 2018 order.[4] In its reasons, VCAT summarised the applicant’s submissions on why she could do better in the proceeding than Racing Victoria’s proposed order, as follows:
[4]Goodrich v Racing Victoria Racing Appeals and Disciplinary Board [No 2] [2018] VCAT 405 (‘VCAT Reasons No 2’).
The potential outcome for [the applicant] if this VCAT proceeding is heard and determined in her favour is vastly better than that proposed by Racing Victoria:
iIf VCAT decides the Stewards had not been validly appointed, it will describe why that was so, that the charge had not been validly brought against [the applicant] and will set aside the [RADB decision] and dismiss the charge;
iiAbsent any valid reason to not do so, VCAT will order Racing Victoria to pay [the applicant’s] costs of this VCAT proceeding and the RADB hearing, both potentially on an indemnity costs basis;
It was submitted VCAT would have the power to make a costs order with respect to the RADB hearing, given VCAT on review has all the powers of the decision-maker (s 51(1)(a) of the VCAT Act). Under [r] 6E(1)(c) [of] the [Local Rules of Racing] RADB may, ‘give any judgement or decision or make such order as in the RADB’s opinion the justice of the case requires’;
iiiUnder s 51 of the VCAT Act, VCAT has power [to] set aside the [RADB decision] and make another decision in substitution for it. Substituting the [RADB] decision with the decision dismissing the charge against [the applicant], is preferable to an order simply setting aside the [RADB] decision …, leaving the charge in existence;
ivA VCAT finding that the Stewards had not been validly appointed would be a basis for [the applicant] to rely on to negotiate with Racing Victoria for compensation, or failing that, to bring an action in court for compensation. …[5]
[5]VCAT Reasons No 2 [19(i)].
VCAT found that the applicant’s continuation of the proceeding constituted an abuse of process for the following reasons:
In originally seeking review of the [RADB decision], [the applicant] acted entirely appropriately, pursuing her right of review of the [RADB decision]. Her seeking to prove that the Stewards who came to inspect were not properly appointed was a legitimate strategy.
However, the fundamentals of this proceeding changed when Racing Victoria offered [the applicant] the end result she could achieve in this proceeding; that the [RADB decision] be set aside.
There is no substantive difference between orders:
a) that the [RADB decision] be set aside; and
b)that the [RADB decision] be set aside and substituted with a decision dismissing the charge against [the applicant].
Both orders provide exoneration and vindication by the removal of a finding of guilt and the record of a penalty. If the [RADB decision] is set aside, the charge does not somehow sit in isolation, still pending, as a mark against [the applicant].
Furthermore, Racing Victoria offers to pay [the applicant’s] costs in this VCAT proceeding to date. Given s 109 of the VCAT Act, no party coming to [VCAT] in a review proceeding should assume that if that party succeeds [VCAT] will order the unsuccessful party to pay costs, whatever stage at which a proceeding ends.
[The applicant] maintains two disputes remain between her and Racing Victoria.
First is whether or not the Stewards who came to inspect on 12 December 2016 were properly appointed as Racing Victoria Stewards. If not she intends to seek compensation from Racing Victoria.
Second, she intends to seek orders from [VCAT] that Racing Victoria be ordered to pay her costs in this proceeding and her costs before the RADB, should it be discovered and/or proven the Stewards were not properly appointed on 12 December.
These objectives must be seen in the context that Racing Victoria brought [the applicant] before the RADB facing charges in a disciplinary proceeding. On review at VCAT, with [VCAT] standing in the shoes of the RADB as decision-maker, and VCAT having the role to re-decide whether or not the charge is proven, in effect [the applicant] once again faces charges in a disciplinary proceeding.
However, Racing Victoria offers her the opportunity to in effect successfully defend the charges.
The abuse of process here is that [the applicant], in the now changed situation in this proceeding, is attempting to switch roles in this proceeding such that she is pursuing an action attempting to obtain evidence and a VCAT decision to found an action seeking compensation from Racing Victoria, in effect making Racing Victoria the defendant. This is the collateral purpose which constitutes an abuse of process in this review proceeding. If she seeks to pursue that collateral purpose, the courts are the appropriate venue.
[The applicant] may not use this proceeding to obtain some collateral advantage to herself (founding an action seeking compensation), and not for the purpose for which this proceeding is properly designed and exists (to determine whether a decision under review be affirmed, varied, or set aside). Her seeking to use the proceeding for that collateral purpose is an abuse of process.
[T]here is no reasonable relationship between the results she intends, founding a compensation application and the scope of the remedy available in this proceeding, which does not include ordering compensation.
…
Similarly, [the applicant’s] ambitions with respect to costs orders against Racing Victoria is founded on showing that the Stewards were not properly appointed. As success or failure in this endeavour rests on the collateral purpose, it is also an abuse of process to pursue costs before the RADB on that basis. Presumably any compensation action she pursues will encompass all monetary loss she claimed.[6]
[6]VCAT Reasons No 2 [50]–[62], [64].
VCAT concluded that to allow the applicant to pursue her collateral purpose would be to permit an abuse of process, and that s 75 of the VCAT Act should be employed to prevent that occurring.
VCAT observed that it had struck out the applicant’s claim that the charge against her should be dismissed because the two stewards were not properly appointed, which was akin to striking out a pleading in a court proceeding, and thereby removed from the proceeding the collateral purpose the applicant sought to pursue. VCAT said that, having precluded the applicant from pursuing the collateral purpose, it would invite the applicant to again consider whether she would consent to the orders sought by Racing Victoria. VCAT indicated that:
(a)if the applicant consents, it would make an order setting aside the RADB decision and requiring ‘the respondent’[7] to pay the applicant’s costs; and
(b)if the applicant did not consent, it would make an order dismissing the proceeding under s 75 of the VCAT Act and requiring ‘the respondent’ to pay the applicant’s costs.
[7]VCAT did not indicate whether its reference to ‘the respondent’ meant the first respondent (RADB) or the second respondent (Racing Victoria). As Racing Victoria was the contradictor, we assume that VCAT meant the second respondent.
VCAT’s 20 April 2018 order
In response to the invitation extended by VCAT, the applicant stated that she did not consent to the orders proposed by Racing Victoria. On 20 April 2018, VCAT made the April 2018 order set out at [11] above.
Trial Division proceeding and judge’s reasons
As we have already stated, the applicant applied to the Trial Division for leave to appeal against para 1 of VCAT’s April 2018 order. She relied on eight grounds of appeal which the judge summarised as follows:
By grounds 1 and 2, the [applicant] submitted that [VCAT] was bound to determine the ‘correct or preferable’ decision, this required it to determine whether the stewards had been validly appointed and that the failure to do so meant that [VCAT] proceeded upon an artificial or inadequate factual basis.
Ground 3 asserted that it was an error for [VCAT] to hold that it could set aside the [RADB] decision without substituting a different decision as required by s 51(2)(c) of the VCAT Act, with the consequence that [VCAT] wrongly concluded that an order setting aside the penalty was the optimal outcome that the [applicant] could obtain from the proceeding.
Ground 4 contended that [VCAT] wrongly concluded that the ‘refusal to accept [Racing Victoria’s] offer’ amounted to an abuse of process in circumstances where the [applicant] was always seeking a substantive outcome, namely to plead not guilty and seek a reversal of the penalty.
Grounds 5 and 6 were argued together and asserted that, without a consideration of the appointment documents, [VCAT] was not in a position to determine the abuse of process question. Further, it was contended that by Order 2 of the orders made on 28 March 2018, [VCAT] under s 75 [of the VCAT Act] purported to dismiss the proceeding in so far as the [applicant] sought to rely on the instruments of appointment and having done so there was no basis for a continuing abuse of process.
Ground 7 asserted that there was a reasonable apprehension of bias on the part of [VCAT] on the basis that the reasons and orders made in October 2017 provided a foundation that [VCAT] had prejudged the question of abuse of process.
Ground 8 was an aggregation of the earlier grounds.[8]
[8]Reasons [43]–[48].
The judge found that grounds 1 and 2 were not made out. He said that, once Racing Victoria decided not to adduce any evidence in support of the charge, the RADB decision could not be sustained; in those circumstances, the only decision that VCAT could make in relation to the RADB decision was to set it aside. According to the judge, VCAT was not required to satisfy itself that the charge was validly laid. He said that the appointment documents were not relevant to the disposition of the proceeding.
The judge decided that ground 3 failed. He held that where VCAT decides to set aside a decision under review, s 51(2) of the VCAT Act requires it to either make another decision in substitution for it or to remit the matter for reconsideration by the decision-maker in accordance with any directions or recommendations of VCAT.[9] The judge stated that, in the present case, that did not occur. According to the judge, whilst in its reasons VCAT considered an order which merely set aside the RADB decision was appropriate, it did not make such an order because the applicant did not consent to it. The judge said that, whilst VCAT’s reasons in support of such an order were erroneous, an appeal under s 148 of the VCAT Act is from an order of VCAT and not its reasons. As will be seen, the judge went on to find that the April 2018 order, which he said was the only order that the applicant sought to impugn, was not infected by any error. Paragraph 1 of that order dismissed the proceeding as an abuse of process rather than setting aside the RADB decision.
[9]The judge applied Secretary to the Department of Justice v Yee [2012] VSC 447.
The judge decided that ground 4 was not made out. He noted that the applicant had conceded before VCAT that a purpose of her wanting to continue with the proceeding was to obtain an outcome that would enable her to pursue a claim for compensation. He also noted that the applicant had accepted before him that, if this was her predominant purpose, it would constitute an abuse of process. The judge held that although VCAT did not expressly refer to the need to establish that the applicant’s collateral purpose of continuing with the proceeding in order to obtain the appointment documents was her predominant purpose, VCAT’s use of the definitive article ‘the’ to describe that purpose entailed a finding that it was the predominant purpose. The judge continued:
In part, that reasoning followed from [VCAT’s] conclusion that the [applicant] could do no better than the Racing Victoria proposal. I have already found that the Racing Victoria proposal did not, at least in form, reflect the entirety of the relief that [VCAT] could grant on the claim. Given the position of Racing Victoria that it would lead no evidence, the [applicant] would have been entitled to an order dismissing the charge.
However, I am not satisfied that this error materially affected the conclusion that the collateral purpose was the predominant purpose for maintaining the action.
Most significantly, the [applicant] did not ask for an order dismissing the charge and the submission that she did make was inconsistent with that course. The [applicant] submitted that [VCAT] could not make the order, because it could not be satisfied that setting aside the decision was the correct or preferable decision unless and until the appointment documents had been produced. In that context, the [applicant] purposively and determinedly did not seek the termination of the proceeding but submitted that, as a necessary first step, there should be production of the appointment documents.
The [applicant] sought to delay the termination of the proceeding until she could obtain the appointment documents. Although the appointment documents would have enabled her to determine whether or not she had a defence to the charge, in circumstances where the moving party was declining to adduce any evidence in support of the charge, that exercise was purely academic.
[VCAT] explained in its reasons that it saw no substantive difference between an order setting aside the [RADB] decision and an order setting aside the [RADB] decision and ordering that the charge be dismissed. In a context where, by reason of its unequivocal decision not to lead any evidence on the charge, Racing Victoria was precluded from pursuing the charge, any failure to make an order dismissing the charge would have had a negligible effect on the legal position of the [applicant]. Even without an order dismissing the charge, it was not capable of being prosecuted. However, for the reasons given by Kyrou J in Yee, the proposed order was formally defective without an additional order dismissing the charge as required by s 51(2)(c) of the VCAT Act.
The significant feature that [VCAT] fastened upon was the [applicant’s] insistence the matter proceed so as to enable her to establish that the stewards had not been validly appointed. From that point, the [applicant] was interested in the basis upon which she could succeed, rather than the ultimate relief. In my view, [VCAT] was correct to conclude that the continued pursuit of the proceeding by the [applicant] was for a collateral purpose. In any event, it was certainly open to [VCAT] to so conclude.
Moreover, after [VCAT] published its reasons of 28 March 2018, [VCAT] invited the [applicant] to indicate whether she sought an order setting aside the penalty. At that stage, her insistence that the matter proceed reflected the further pursuit of the action with the aim of obtaining the appointment documents.
In my view, the [applicant] has failed to establish any error in [VCAT’s] conclusion that her maintenance of the proceeding involved an abuse of process. That abuse of process disentitled the [applicant] to any relief on her application before VCAT.[10]
[10]Reasons [104]–[111] (citations omitted).
In relation to grounds 5 and 6, the judge held that VCAT’s March 2018 order was wrong to the extent that it purported to strike out the proceeding insofar as the applicant sought to challenge the validity of the appointment of the two stewards. That was because, by reason of the course adopted by Racing Victoria, the validity of their appointment was no longer in issue and therefore there was no occasion for VCAT to entertain this issue or to dismiss that part of the proceeding. However, the judge stated that, as there was no appeal from VCAT’s March 2018 order, any error in VCAT’s use of s 75 of the VCAT Act to remove an aspect of the claim did not affect the validity of its ultimate order of April 2018, which was the only order that was the subject of the appeal. For these reasons, the judge did not grant leave to appeal in relation to grounds 5 and 6.
The judge held that ground 7 failed. As the applicant does not seek to impugn the judge’s conclusion that the course adopted by VCAT did not give rise to a reasonable apprehension of bias, we will not summarise the judge’s reasons for that conclusion.
The judge did not separately consider ground 8, as it was an aggregation of the earlier grounds.
Grounds of Appeal
The applicant’s proposed grounds of appeal are as follows:
1[VCAT’s] failure to properly exercise its jurisdiction under s 51(2)(c) of the VCAT Act, constituted an error of substance in the circumstance that, upon a fair reading of the reasons of [VCAT], it had determined to set aside the decision under review but not also to dismiss the charge against the applicant. In the absence of substantive support in the reasons of [VCAT], the court could not have properly found that the error was one of form and not substance.
2[VCAT’s] failure to properly exercise its jurisdiction under s 51(2)(c) of the VCAT Act, was not limited to an error in the reasoning of [VCAT], as the court found, but expressly contained in paragraph 3 of [VCAT’s] order of 28 March 2018 (March order) by which [VCAT] invited the applicant to ‘… file and serve advice as to whether she consents to the decision under review being set aside and that Racing Victoria be ordered to pay her costs in this proceeding’.
3[VCAT’s] ultimate conclusion, that the position adopted by the applicant constituted an abuse of process (for the purposes of s 75 of the VCAT Act) was not open on the evidence before it, including because [VCAT] could not have found, and did not find, that the collateral purpose which it identified was the predominant purpose for the applicant’s position. Contrary to the court’s finding, a fair reading of [VCAT’s] reasons does not reveal that [VCAT] either properly identified the need for there to be a collateral purpose which was the predominant purpose or that [it] so found such a predominant purpose.
4By paragraph 2 of [the] March order, [VCAT] purported, under s 75 of the VCAT Act, to dismiss the proceeding before it insofar as the applicant then claimed that ‘… the charge against her should be dismissed because the Stewards on 12 December 2016 were not properly appointed’ (at [72] of [VCAT’s] reasons for the March order). [VCAT] then proceeded, ‘[w]ith that collateral purpose removed, [to invite] [the applicant] to consider whether or not she will consent to the orders Racing Victoria proposes’ (at [74]), which did not include an order dismissing the charge against her. [VCAT], by paragraph 1 of its order of 20 April 2018 (final order), proceeded to dismiss the proceeding notwithstanding that it had already removed what it said then constituted an abuse of process.
5Contrary to the finding of the court, the March order was also the subject of the appeal. The final order could not have been made absent reliance by [VCAT] upon the March order and the reasons for that order and, for that reason, the notice of appeal included the following statement:
While leave is being sought to appeal from the (final) April order, it is necessary that reference is made to those earlier orders in the grounds of appeal, given that those orders (and associated reasons) were part of a continuum of actions by [VCAT] which culminated in making of the April order.
Principles relating to abuse of process
As the correctness of VCAT’s decision to dismiss the applicant’s proceeding on the basis of the principles relating to abuse of process is central to this appeal, it is convenient to briefly summarise them prior to addressing the grounds of appeal.
The categories of abuse of process are not closed.[11] Relevantly, an abuse of process includes where the predominant purpose of the party bringing a proceeding is improper.[12]
[11]Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256, 265 [9]; [2006] HCA 27 (‘Batistatos’); Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, 452 [89]; [2011] HCA 48; Rogers v The Queen (1994) 181 CLR 251, 286; [1994] HCA 42.
[12]Williams v Spautz (1992) 174 CLR 509, 529; [1992] HCA 34 (‘Williams’).
The question whether the purpose of bringing a proceeding is improper must be assessed in the context of statements in the authorities that the legitimate purpose for bringing a proceeding is the protection or vindication of particular legal rights or immunities.[13]
[13]Williams (1992) 174 CLR 509, 532; [1992] HCA 34; Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134, 150–1 [63]–[64]; [1999] FCA 773; Treasury Wine Estates Pty Ltd v Melbourne City Investments Pty Ltd (2014) 45 VR 585, 588 [14]; [2014] VSCA 351 (‘Treasury Wines’).
There is a distinction between bringing proceedings to a successful conclusion, so as to take advantage of an entitlement or benefit which the law gives the litigant in that event, and bringing proceedings when the purpose is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers.[14]
[14]Williams (1992) 174 CLR 509, 526–7; [1992] HCA 34; Klement v Randles [2010] VSCA 336, [32]; Treasury Wines (2014) 45 VR 585, 598 [59]; [2014] VSCA 351.
The plurality in Williams v Spautz used the following example to illustrate that distinction:
[A]n alderman prosecutes another alderman who is a political opponent for failing to disclose a pecuniary interest when voting to approve a contract, intending to secure the opponent’s conviction so that he or she will then be disqualified from office as an alderman by reason of that conviction, pursuant to local government legislation regulating the holding of such offices. The ultimate purpose of bringing about disqualification is not within the scope of the committal process instituted by the prosecutor. But the immediate purpose of the prosecutor is within that scope. And the existence of the ultimate purpose cannot constitute an abuse of process when that purpose is to bring about a result for which the law provides in the event that the proceedings terminate in the prosecutor’s favour.[15]
[15](1992) 174 CLR 509, 526; [1992] HCA 34.
The plurality in Williams also referred to Goldsmith v Sperrings Ltd[16] and agreed with the doubt expressed by Bridge LJ as to whether an abuse of process would exist where a litigant with a genuine cause of action which the litigant intends to pursue in any event has an ulterior purpose in view as a desired by-product of the litigation.[17]
[16][1977] 2 All ER 566.
[17]Williams (1992) 174 CLR 509, 521–2; [1992] HCA 34; Treasury Wines (2014) 45 VR 585, 599 [61]; [2014] VSCA 351.
Whilst cases commonly involve determination as to whether the commencement of a proceeding is an abuse of process, a question may also arise whether the continuation — as distinct from the commencement — of a proceeding is an abuse of process.[18] Maintenance or continuation of a proceeding which constitutes an abuse of process may include a situation where a proceeding was commenced for a proper purpose, but due to a change of circumstances, it is continued for a predominant purpose that is improper.[19] In Rogers v The Queen, McHugh J stated that many, perhaps the majority of, cases of abuse of process arise from the institution of proceedings, but any procedural step in the course of properly instituted proceedings is also capable of being an abuse of process.[20]
[18]In a separate judgment in Williams (1992) 174 CLR 509, 532–5, 537, 539; 1992] HCA 34, Brennan J used the language of ‘commencing or maintaining’ a proceeding. Brennan J’s judgment has been cited in subsequent cases, including Lunt v Victoria International Containing Terminal Ltd [2020] FCAFC 40, [16]; Melbourne City Investments Pty Ltd v Myer Holdings Ltd (2017) 53 VR 709, 713–14 [12]–[13]; [2017] VSCA 187; Toben v Nationwide News Pty Ltd (2016) 93 NSWLR 639, 664–5 [115]–[118]; [2016] NSWCA 296.
[19]In Foukkare v Angreb Pty Ltd [2006] NSWCA 335, [54], [62], a proceeding was found to be an abuse of process due to a change in circumstances, namely, a decision in favour of the respondents in a separate proceeding involving the same parties where the relief sought was essentially the same in both proceedings.
[20](1994) 181 CLR 251, 286; [1994] HCA 42.
Where an abuse of process is established, the court or tribunal may terminate the proceeding by way of a permanent stay. If a proceeding is found to constitute an abuse of process, there is no discretion to refuse a stay.[21] That is so even if the relevant party may otherwise have had a prima facie case.[22]
[21]Batistatos (2006) 226 CLR 256, 256 [7]; [2006] HCA 27, quoting R v Carroll (2002) 213 CLR 635, 657 [73]; [2002] HCA 55.
[22]Williams (1992) 174 CLR 509, 522; [1992] HCA 34.
The onus of satisfying the court or tribunal that there is an abuse of process lies on the party alleging it.[23] The onus is a heavy one and the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances.[24]
[23]Williams (1992) 174 CLR 509, 529; [1992] HCA 34; Treasury Wines (2014) 45 VR 585, 599 [62]; [2014] VSCA 351.
[24]Williams (1992) 174 CLR 509, 529; [1992] HCA 34; Treasury Wines (2014) 45 VR 585, 599 [62]; [2014] VSCA 351.
Parties’ submissions on all the grounds of appeal
As the grounds of appeal overlap, we will summarise the parties’ submissions on all the grounds together and then set out our conclusions in relation to them.
The applicant submitted that, contrary to the view of the judge, VCAT failed to properly exercise its jurisdiction under s 51(2)(c) of the VCAT Act by failing to set aside the RADB decision and dismiss the charge. The applicant referred to VCAT’s finding that there was no substantive difference between an order setting aside the RADB decision on the one hand and an order setting aside the RADB decision and ordering that the charge be dismissed on the other. She submitted that this finding was wrong and, in this respect, she relied on the statement by the judge that the order proposed by VCAT was formally defective without an additional order dismissing the charge. According to the applicant, VCAT’s failure to make an order dismissing the charge constituted an error of substance rather than form.
The applicant argued that, contrary to the view of the judge, VCAT’s failure to properly exercise its jurisdiction under s 51(2)(c) of the VCAT Act was not limited to an error of reasoning. According to her, para 3 of VCAT’s March 2018 order, which invited the applicant to advise whether she consented to the RADB decision being set aside, expressly indicated that VCAT did not intend to make an order dismissing the charge. She contended that VCAT’s March 2018 order, and as a consequence, VCAT’s April 2018 order were affected by error because the invitation in VCAT’s March 2018 order was not authorised under the VCAT Act and did not constitute the optimal outcome she could have obtained in the VCAT proceeding.
The applicant argued that the judge erred in finding that Racing Victoria had made an ‘unequivocal decision not to lead any evidence on the charge’.[25] Rather, so it was said, Racing Victoria’s statement that two and a half days would be required for a final hearing indicated that it intended to defend the RADB decision.[26]
[25]Reasons [108]. See [38] above.
[26]See [26] above.
The applicant submitted that, contrary to the judge’s finding, a fair reading of VCAT’s reasons for its March 2018 order did not reveal that VCAT either properly identified the need for there to be a collateral purpose for pursuing the proceeding which was the predominant purpose or that it found such a predominant purpose. According to her, as the judge accepted that VCAT did not refer to the need to establish a predominant purpose, he could not have inferred that VCAT made such a finding. She contended that it is clear from VCAT’s reasons for its March 2018 order that VCAT neither understood the predominant purpose principle set out in Williams nor applied that principle correctly.
The applicant argued that, on the evidence before it, it was not open to VCAT to find that the collateral purpose that it identified was the predominant purpose for her position. According to her, she was doing no more than asserting her right to the outcome to which she was entitled, namely, an order setting aside the RADB decision and dismissing the charge.
The applicant argued that the judge had correctly found that VCAT was wrong to include para 2 in its March 2018 order, which dismissed the proceeding insofar as it related to the appointment documents, but he erred in declining to consider grounds of appeal relating to that order on the basis that that order was not the subject of the appeal. She submitted that VCAT’s March 2018 order was the subject of the appeal. This was said to be because VCAT’s April 2018 order could not have been made without reliance on VCAT’s March 2018 order and, for this reason, the notice of appeal she filed in the Trial Division contained the following statement:
While leave is being sought to appeal from the … April order, it is necessary that reference is made to those earlier orders in the grounds of appeal, given that those orders … were part of a continuum of actions by [VCAT] which culminated in making of the April order.
Racing Victoria submitted that its proposed order, as set out at [20] above, made it unnecessary for VCAT to determine whether the charge could be proven. It argued that once it had indicated that it would not proceed, VCAT was required to make orders in favour of the applicant without the need for a hearing on any issue. It followed, so it was said, that obtaining the appointment documents became extraneous to the proper conduct of the proceeding. Racing Victoria contended that it was in that context that VCAT observed on 31 October 2017 that for the applicant to use the proceeding to obtain the appointment documents for use in some other proceeding would constitute an impermissible collateral purpose.
According to Racing Victoria, when the applicant rejected its proposed order, it was open to VCAT to conclude that the continued pursuit of the proceeding was for a collateral purpose and it was therefore also open to it to form the opinion that the proceeding was an abuse of process.
Racing Victoria submitted that VCAT did not make an order under s 51(2) of the VCAT Act purporting only to set aside the RADB decision. It argued that had the applicant chosen to agree that VCAT should make the proposed order and asked that VCAT also dismiss the charge, Racing Victoria would have agreed to such a course. However, according to it, as the applicant did not consent to the making of an order under s 51(2) but sought to continue the proceeding, the question whether an order by VCAT setting aside the RADB decision would have been legally incorrect is hypothetical.
Racing Victoria contended that in VCAT’s reasons for its March 2018 order it referred to and quoted from Williams in forming the opinion that the continuation of the proceeding was an abuse of process and therefore there was no basis for the applicant’s contention that VCAT was not aware of, and did not apply, the predominant purpose criterion.
Racing Victoria submitted that VCAT’s March 2018 order was not the subject of the appeal under s 148 of the VCAT Act and only VCAT’s April 2018 order was sought to be impugned. Racing Victoria argued that the judge correctly held that VCAT’s March 2018 order was no more than an attempt to focus the applicant on pursuing the ultimate relief available by reason of its proposed order. According to it, even if VCAT’s March 2018 order was affected by legal error, it did not affect the validity of VCAT’s April 2018 order.
Racing Victoria made the following additional oral submissions:
(a)The applicant’s refusal to consent to Racing Victoria’s proposed order and insistence on pursuing the proceeding for the collateral purpose of obtaining the appointment documents for use in separate compensation proceedings enlivened VCAT’s power of summary dismissal under s 75 of the VCAT Act. It was open to VCAT to find that this collateral purpose was the predominant purpose and to conclude that it constituted an abuse of process under s 75.
(b)Paragraph 2 of VCAT’s March 2018 order — by which VCAT dismissed the proceeding under s 75 of the VCAT Act insofar as the applicant sought the appointment documents — did not preclude VCAT from making para 1 of VCAT’s April 2018 order by which it dismissed the entire proceeding under s 75. That is because the applicant continued to press for orders for production of the appointment documents as a step towards obtaining compensation.
(c)It was reasonably open for VCAT to convene directions hearings and give the applicant opportunities to consent to Racing Victoria’s proposed order rather than immediately proceeding to a final hearing on the merits. VCAT’s approach was in accordance with the natural justice and procedural requirements in ss 97 and 98 of the VCAT Act and its duty to ensure that the continuation of the proceeding did not constitute an abuse of process.
(d)It would be most unusual for VCAT to make an order under s 51(2)(c) of the VCAT Act setting aside the RADB decision and dismissing the charge in circumstances where the applicant neither sought nor consented to such an order.
(e)The procedural steps adopted, and orders made, by VCAT need to be considered in their chronological context. Viewed in that context, it was open to VCAT to adopt each of those steps and to make each of those orders. The applicant cannot demonstrate any appealable error in respect of any such step or order.
Decision on all the grounds of appeal
The applicant contended that her predominant purpose for continuing the VCAT proceeding and seeking production of the appointment document was to establish that she could not have breached r 8D of the AR Rules — because the two stewards were not properly appointed — and therefore VCAT should make an order dismissing the charge. According to her, any compensation claim that she might have been able to make in separate proceedings as a result of such an order would be no more than the taking advantage of a right which the law gave her as a consequence of such an order. She argued that Williams recognised that the taking advantage of a legal right that resulted from the successful outcome of litigation did not constitute an abuse of process.
As will be seen, we have concluded that para 1 of VCAT’s April 2018 order — by which VCAT summarily dismissed the proceeding under s 75 of the VCAT Act — must be set aside because VCAT failed to carry out its review function under s 51. Accordingly, it is not necessary for us to decide whether the applicant’s contentions set out at [65] above are correct. In saying that, we should not be taken to assent to the proposition that those contentions lack substance.
Under ground 3, the applicant submitted that VCAT did not find that her predominant purpose in continuing the VCAT proceeding was the collateral purpose of obtaining the appointment documents. According to her, the judge was wrong to conclude that VCAT’s reasons for its April 2018 order entailed such a finding.
In our opinion, the judge’s conclusion was correct. In broad terms, VCAT’s reasons for its April 2018 order proceeded as follows. First, the applicant’s commencement of the VCAT proceeding was for a proper purpose. Secondly, Racing Victoria’s proposed order provided the applicant with an optimal outcome. Thirdly, the purpose that the applicant sought to achieve by rejecting the proposed order and continuing the proceeding was the collateral purpose of obtaining the appointment documents for use in separate compensation proceedings. Fourthly, that collateral purpose constituted an abuse of process. The third step in this reasoning necessarily entailed a finding that the collateral purpose was, at the very least, the predominant purpose.
It follows that ground 3 is not made out insofar as it contends that VCAT did not find that the collateral purpose which it identified was the predominant purpose for the applicant’s continuation of the VCAT proceeding. However, as indicated at [66] above, we should not be taken to endorse the proposition that the course engaged in by the applicant amounted to an abuse of process.
That said, VCAT’s rationale for this finding, the procedure it adopted and the orders it made were fundamentally flawed. That is because VCAT inappropriately focused on its ancillary jurisdiction under s 75 of the VCAT Act and failed to exercise its primary jurisdiction under s 51.
Section 51 of the VCAT Act relevantly provides as follows:
51 Functions of [VCAT] on review
(1)In exercising its review jurisdiction in respect of a decision, [VCAT]—
(a) has all the functions of the decision-maker; and
(b)has any other functions conferred on [VCAT] by or under the enabling enactment; and
(c)has any functions conferred on [VCAT] by or under this Act, the regulations and the rules.
(2)In determining a proceeding for review of a decision [VCAT] may, by order—
(a) affirm the decision under review; or
(b) vary the decision under review; or
(c)set aside the decision under review and make another decision in substitution for it; or
(d)set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of [VCAT].
(3)[A] decision of a decision-maker as affirmed or varied by [VCAT], or a decision made by [VCAT] in substitution for the decision of a decision-maker—
(a) is deemed to be a decision of that decision-maker; and
(b)subject to any contrary order by [VCAT], has, or is deemed to have had, effect from the time at which the decision under review has or had effect.
By its email of 4 October 2017, Racing Victoria made it clear that it would not adduce any evidence in support of the charge and that it would seek an order setting aside the RADB decision with costs in favour of the applicant. Contrary to the applicant’s contention, Racing Victoria at no stage resiled from that position. The judge was right to conclude that Racing Victoria had made an ‘unequivocal decision not to lead any evidence on the charge’.[27] Having regard to that unequivocal decision, VCAT was right to convene a directions hearing. At that directions hearing, it should have invited submissions from the parties as to how it should conduct its merits review function under s 51 of the VCAT Act in the light of the position that Racing Victoria had adopted.
[27]See [55] and n 25 above.
If VCAT had focused on its function under s 51 of the VCAT Act, it would have inevitably concluded that the appointment documents were not admissible because they were not relevant to any outstanding issue in the proceeding. It would also have inevitably concluded that a final hearing on the merits of the RADB decision would be very brief because, in the absence of evidence in support of that decision, VCAT would have to set it aside and substitute a decision dismissing the charge. VCAT could have scheduled the final hearing soon after the directions hearing and finalised the proceeding on its merits reasonably promptly.
Instead of adopting the above course, at the directions hearing on 31 October 2017, on its own motion, VCAT raised for consideration its power under s 75 of the VCAT Act to summarily dismiss or strike out the proceeding. After that time, VCAT proceeded on the basis that, if the applicant did not consent to Racing Victoria’s proposed order, it was open to VCAT to exercise its power under s 75. VCAT’s focus on these two possible outcomes — a consent order or a summary dismissal — rather than listing the proceeding for a final hearing on the merits, resulted in further interlocutory steps once the applicant advised that she would not consent to the proposed order. Those interlocutory steps unnecessarily delayed the resolution of the proceeding.
The reason why VCAT persisted in giving the applicant opportunities to consent to Racing Victoria’s proposed order was its inability to make an order setting aside the RADB decision summarily under s 75 of the VCAT Act.[28] However, as we have stated above, the absence of consent by the applicant would not have been an impediment to a brief final hearing on the merits which would have inevitably resulted in a decision under s 51(2)(c) setting aside the RADB decision and substituting for it a decision dismissing the charge.
[28]VCAT Reasons No 1 [32], citing Re L and Nurses Board of Victoria (1999) 16 VAR 125, 128.
VCAT’s focus on s 75 of the VCAT Act gave undue primacy to its power of summary dismissal, contrary to the exhortation in the authorities that such a power should be exercised with great care.[29]
[29]See [51] above. See also Chopra v Department of Education and Training [2019] VSCA 298, [134]–[137].
VCAT’s focus on its power under s 75 of the VCAT Act in the absence of consent by the applicant to Racing Victoria’s proposed order resulted in a series of orders which were misguided and failed to address the merits of the RADB decision.
We agree with the judge’s conclusion that para 2 of VCAT’s March 2018 order was wrong. As Racing Victoria advised that it would not adduce any evidence in support of the charge, the appointment documents became irrelevant. In these circumstances, all that was required of VCAT was a ruling that evidence relating to the appointment documents was inadmissible and that no witness summons would be issued in relation to them. Instead of adopting this simple course, VCAT purported to partially dismiss the proceeding summarily under s 75 of the VCAT Act insofar as the proceeding related to the appointment documents. It erred in doing so.
In any event, having purported to summarily dismiss the proceeding insofar as it related to the appointment documents, it was not open to VCAT to summarily dismiss the entire proceeding on the basis that its continuation constituted an abuse of process. That is because the partial summary dismissal meant that it was no longer possible for the applicant to seek production of the appointment documents and therefore the collateral purpose of obtaining those documents by continuing the proceeding was no longer achievable. In other words, having excluded from the scope of the proceeding pursuit of the collateral purpose by virtue of the partial summary dismissal, it was not open to VCAT to find that pursuit of such a purpose constituted an abuse of process. It follows that VCAT erred in including para 1 in its April 2018 order.
We reject Racing Victoria’s submission that the natural justice and procedural requirements in ss 97 and 98 of the VCAT Act precluded VCAT from convening a final hearing on the merits in circumstances where the applicant refused to consent to Racing Victoria’s proposed order and insisted on seeking production of the appointment documents. A simple ruling that the appointment documents were inadmissible would have precluded the applicant from further pursuing production of those documents. VCAT could have discharged its natural justice and procedural obligations by giving the applicant an opportunity to be heard at the final hearing on the form of order to be made in the light of Racing Victoria’s decision not to defend the RADB decision. A final hearing devoted to the making of the correct or preferable decision in the light of Racing Victoria’s position would necessarily have ensured that the continuation of the proceeding would not constitute an abuse of process.
The course adopted by VCAT in proceeding under s 75 of the VCAT Act rather than s 51 meant that para 1 of its April 2018 order resulted in the RADB decision remaining in force notwithstanding that it was common ground that, in the absence of evidence by Racing Victoria in support of the charge, the RADB decision became untenable. The course adopted by VCAT has meant that a conviction on a disciplinary charge and a penalty of three months’ suspension remain extant in circumstances where no evidence was adduced to support them. Self-evidently, that cannot be correct.
It follows that, in including para 1 in its April 2018 order, VCAT did not make a decision on the merits of the RADB decision and thereby failed to carry out its review function under s 51 of the VCAT Act. Accordingly, it erred in law in doing so.
We agree with the judge’s conclusion that VCAT was wrong to conclude that Racing Victoria’s proposed order constituted an optimal outcome for the applicant. On the basis of Racing Victoria’s decision to not adduce evidence in support of the charge, the optimal outcome for the applicant — and the only outcome that was open to VCAT on the evidence — was an order which not only set aside the RADB decision, but also dismissed the charge.
We also agree with the judge that an order which set aside the RADB decision and did not also dismiss the charge would not comply with s 51(2)(c) of the VCAT Act. However, we consider that the judge was wrong in failing to recognise that VCAT’s error was more than a formal defect. That is because the setting aside of a conviction and penalty does not provide the same level of vindication and exoneration as the setting aside of a conviction and penalty which is accompanied by dismissal of the underlying charge. Setting aside a disciplinary decision does not represent a definitive determination that the charge is not proven in the same way as dismissal of the charge. This conclusion is consistent with the policy underlying s 51(3), which is to remove the efficacy of a vitiated decision from its inception in favour of a substituted decision made by VCAT.
We reject Racing Victoria’s submission that it was not open to VCAT to make an order under s 51(2)(c) of the VCAT Act setting aside the RADB decision and dismissing the charge in circumstances where the applicant neither sought nor consented to such an order. VCAT’s obligation under s 51(2) is to make the correct or preferable decision after considering the merits of the evidence adduced and submissions made before it. That obligation is not contingent on the consent of any party. Notwithstanding the applicant’s attitude in the present case, as Racing Victoria unequivocally indicated that it would not adduce evidence in support of the RADB decision, the correct or preferable decision in the circumstances was for the RADB decision to be set aside and for the charge to be dismissed. Accordingly, not only was it open to VCAT to make an order to that effect, but it was bound to do so.
We accept Racing Victoria’s submission that the appropriateness and validity of VCAT’s procedural steps and orders should be considered in their chronological context. However, that cannot mean that the chronological context precludes consideration of the legislative framework within which VCAT operates. VCAT’s procedural steps and orders must be assessed in the light of its primary review jurisdiction under s 51 of the VCAT Act and Racing Victoria’s unequivocal position that it would not adduce evidence in support of the RADB decision. When viewed in that light, for the reasons we have already discussed, those procedural steps and orders represent a serious failure by VCAT to carry out its review function under the VCAT Act.
It follows from the above discussion that grounds 1 and 4 are made out.
We have already discussed ground 3. As grounds 2 and 5 are ancillary grounds, it is not necessary for us to consider them.
Disposition
Our conclusion that grounds 1 and 4 are made out means that leave to appeal will be granted, the appeal will be allowed and para 1 of VCAT’s April 2018 order will be set aside. As we have found that the only order that was open to VCAT on the evidence before it was the setting aside of the RADB decision and dismissal of the charge, such an order will be made in accordance with s 148(7)(b) of the VCAT Act, rather than an order remitting the proceeding to VCAT.
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