Greyhound Racing Authority (NSW) v Bragg

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NEW SOUTH WALES COURT OF APPEAL

CITATION:      Greyhound Racing Authority (NSW) v Bragg [2003]  NSWCA 388

FILE NUMBER(S):
40224/03

HEARING DATE(S):               25 November 2003

JUDGMENT DATE: 22/12/2003

PARTIES:
GREYHOUND RACING AUTHORITY (NSW)  (Appellant)
Rodney BRAGG  (Respondent)

JUDGMENT OF:       Santow JA Ipp JA Brownie AJA   

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):          30047/01

LOWER COURT JUDICIAL OFFICER:     Dowd J

COUNSEL:
R J WEBB, SC  (Appellant)
D E BARAN  (Respondent)

SOLICITORS:
Hartmann & Associates  (Appellant)
Heard McEwan  (Respondent)

CATCHWORDS:
ADMINISTRATIVE LAW - racing tribunal - meaning of "due inquiry" in Statute - procedural fairness - factual determinations - merits review inappropriate - Wednesbury unreasonableness distinguished from review of factual determinations based on irrationality or illogicality - meaning of Briginshaw standard and "comfortably satisfied" in context of administrative tribunal - relevance of informality of procedure and hearsay evidence - evidence "against interest" as applicable to reputation.

LEGISLATION CITED:
Evidence Act  s65(7)(a)
The Greyhound Racing Authority Act 1985 (NSW).
Greyhound Racing Control Board Act 1985  Rule 9(1)
Rules of The Greyhound Racing Authority 1999
Greyhound Racing Authority (Appeals) Regulation 1999
Independent Commission Against Corruption Act 1988 ss37 and 38

DECISION:
(1)  That the appeal be allowed
  (2)  That orders of the Court made 27 February 2003 be set aside
  (3)  The respondent to pay the appellant's costs of the appeal and of the proceedings below. 

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40224/03
SC 30047/01

SANTOW JA
IPP JA
BROWNIE AJA

22 DECEMBER 2003

GREYHOUND RACING AUTHORITY (NSW) v Rodney BRAGG

Judgment

  1. SANTOW JA: 

    INTRODUCTION

    This appeal seeks to overturn the result of a successful challenge by way of judicial review of successive administrative decisions taken first by the Regulatory Committee of the Greyhound Racing Authority of New South Wales and then on appeal by the Greyhound Racing Appeals Tribunal. 

  2. The present appeal is from a decision of Dowd J in the Common Law Division of the Supreme Court of New South Wales on 27 February 2003. 

  3. The proceedings before the primary judge were by way of judicial review of administrative decisions by each of: 

    (a)the Regulatory Committee of The Greyhound Racing Authority (NSW);  and

    (b)          The Greyhound Racing Appeals Tribunal; 

    as affecting Mr Bragg, the respondent, a greyhound trainer. 

  4. The decision of the Regulatory Committee was a finding by it that the respondent had failed to comply with the Rules of The Greyhound Racing Authority 1999 (“Rules”).  It imposed a severe penalty of 10 years disqualification and ten penalty points fine. 

  5. The decision of the Tribunal was a decision dismissing an appeal by the respondent from that decision of the Regulatory Committee.

  6. The primary judge found for the respondent both in respect of the decision of the Regulatory Committee and the decision of the Tribunal.  On the basis of his findings he made the following declarations and orders (Red, 31): 

    (a)declared that the Regulatory Committee had failed to conduct a “due inquiry” under the Rules so that its findings were…

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Details
Case
[2003] NSWCA 388
Decision Date

CaseChat Overview and Summary

The appeal concerned a decision by the Greyhound Racing Authority (NSW) to impose penalties on the respondent, a registered greyhound trainer. The Authority had acted under Rule 9(4)(a) of its Rules, which permitted it to impose penalties if satisfied that a person had engaged in dishonest, corrupt, fraudulent, negligent, improper, or detrimental conduct in connection with greyhound racing. The respondent had been investigated by the Independent Commission Against Corruption (ICAC), and evidence from that investigation was relied upon by the Authority. The primary judge had found that the Tribunal, on appeal from the Authority's decision, had failed to apply the correct standard of proof, namely the *Briginshaw* standard, and had therefore made a reviewable error. The central question on appeal was whether the primary judge had correctly identified this error and, if so, whether in doing so, the primary judge had impermissibly conducted a merits review of the Tribunal's decision.

The legal issues before the court were whether the primary judge had erred in finding that the Tribunal had failed to apply the *Briginshaw* standard of proof, and whether the primary judge had engaged in an impermissible merits review of the Tribunal's decision. The appellant argued that the Tribunal had understood and applied the *Briginshaw* standard, and that the primary judge had wrongly substituted his own view for that of the Tribunal. The respondent, in turn, sought to support the primary judge's decision on the basis that the Tribunal had indeed erred in its application of the standard of proof.

The court allowed the appeal, setting aside the orders of the primary judge. The court reasoned that the primary judge had erred in finding that the Tribunal had failed to apply the *Briginshaw* standard. The court found that the primary judge had impermissibly conducted a merits review of the Tribunal's decision, substituting his own assessment of the evidence for that of the Tribunal. The court held that the Tribunal had properly considered the evidence before it and applied the correct standard of proof, and that the primary judge's intervention constituted an error.

Consequently, the appeal was allowed, the orders of the primary judge made on 27 February 2003 were set aside, and the respondent was ordered to pay the appellant's costs of the appeal and the proceedings below.

Orders

Orders of the court

(1) That the appeal be allowed

(2) That orders of the Court made 27 February 2003 be set aside

(3) The respondent to pay the appellant's costs of the appeal and of the proceedings below.

Background

Background to the litigation

In relation to the decision on re-hearing by the Tribunal, the primary judge found that it had failed to apply the relevant standard of proof, which was that in Briginshaw v Briginshaw (1938) 60 CLR 336. The reasoning of the primary judge is to be found at Red, 27–29 (at [57] – [68]). On this appeal, the principal question is whether, as a consequence of his deliberations on the standard of proof, the primary judge properly found a reviewable error (in failing to apply the Briginshaw standard) and, in the event that he did, whether he engaged in an impermissible merits review in doing so. The appellant’s case is that the Tribunal understood that the Briginshaw standard in the broad sense was the applicable standard and applied it. The appellant contends that the primary judge fell into error when reviewing the Tribunal’s deliberations on the evidence before it and impermissibly undertook a merits review; Red, 33 (Notice of Appeal, grounds 8 and 9). There was no Notice of Contention from the respondent seeking to support the primary judge’s decision on any other than its actual basis. SALIENT FACTS and BACKGROUND The Greyhound Racing Authority (NSW) (“the Authority”) was established by The Greyhound Racing Authority Act 1985 (NSW). By s9 of the Act the Authority was given responsibility for the control and regulation of greyhound racing in the State. Its functions included the registration of greyhound trainers. The respondent was at all material times registered as a trainer by the Authority. Pursuant to s10 of the Act the Authority promulgated the Rules of the Greyhound Racing Authority 1999. Rule 9(4)(a) of the Rules is important and is in the following terms: “The Authority may after notice to a person and due inquiry, impose on the person any one or more of the penalties referred to in sub-rule (3) if:(a) the Authority is satisfied that the person has done anything or caused or permitted anything to be done in connection with greyhound racing which is dishonest, corrupt, fraudulent, negligent, improper or otherwise detrimental to the proper control and regulation of greyhound racing.” (emphasis added) Between March and May 2000 the respondent was with others investigated by the Independent Commission Against Corruption (“ICAC”), ICAC published its findings in a report entitled “The Greyhound Report” (investigation into aspects of the greyhound racing industry) in August 2000. The respondent was required to give evidence at ICAC’s hearings. So too was a Mr Gill (a fellow greyhound trainer) and Mr Potter (a steward employed by the Authority). Both of them, by their own admission, had been involved in wrongful conduct concerning greyhound racing as I later elaborate. The Committee and the Tribunal later relied on their evidence in support of the charge concerning the respondent. They each gave that evidence pursuant to ss37 and 38 of the Independent Commission Against Corruption Act 1988 (“ICAC Act”), doing so on objection. That meant that any evidence that was given before ICAC could not be used in other civil disciplinary proceedings to incriminate “the person” making the answer or producing a document (s37(3)). It has nothing to say about the answer or document being used in relation to proceedings against another person.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The respondent commenced the proceedings below by the summons dated 9 August 2001. The grounds on which it succeeded in its challenge were those identified by the prayers for relief in paras 1 and 5, Red, 1. The primary judge’s decision The respondent, as plaintiff, proceeded by summons for declarations and orders seeking to set aside the decision of the Regulatory Committee and Tribunal on various grounds but in particular: (a)failure to comply with Rule 9(1) of the Greyhound Racing Control Board Act 1985, (b)denial of procedural fairness by the Regulatory Committee in carrying out an inquiry despite “the plaintiff’s objection to the inquiry on the basis of self-incrimination and the right to silence”, (c)admission of inadmissible evidence from the ICAC inquiry notwithstanding s37(3) of the Independent Commission Against Corruption Act 1988 in regard to the objection by the plaintiff made within the meaning of s37(4) of that Act, (d)failure to apply the test for reasonable satisfaction of the requisite onus of proof pursuant to Briginshaw v Briginshaw, (e)the decision of the Regulatory Committee and Tribunal being in each case so unreasonable that no reasonable committee/tribunal could have reached the same decision. Appeal Grounds I set out below the principal grounds for appeal, to which the other grounds are in the main subsidiary or by way of elaboration or exemplification of those principal grounds. I should add that to some extent those grounds were subsumed in appeal ground 7 to the effect that the primary judge erred by conducting a review on the merits of the decision of the Regulatory Committee and appeal ground 9 to similar effect in relation to reviewing the merits of the decision of the Tribunal. For convenience I quote the appeal grounds, other than the abandoned ground 10: “1.His Honour erred in proceeding on the basis that, distinct from the requirements of natural justice a ground for judicial review of the decision of the regulatory committee was failure to conduct ‘due inquiry’. Judgment [50] and [56]. 2.His Honour erred in finding: (a) that the Regulatory committee was in error in admitting as evidence in the proceedings before it transcripts of evidence given by witnesses to an inquiry of the Independent Commission against Corruption; (b) that the admission of those statements of evidence represented a failure on the part of the Regulatory Committee to conduct ‘due inquiry’. 3.That His Honour erred in finding: (a) the Regulatory committee operated without proper guidance as to the opinion evidence of Mr Potter; (b) that in proceeding without any ‘proper guidance’ concerning the opinion evidence of Mr Potter the Regulatory committee failed to conduct a ‘due inquiry’. Judgment [53] and [56]. 4.His Honour erred in: (a) proceeding on the basis that the Regulatory committee considered the evidence of witnesses before it without regard to the fact that they were complicit in the activities the subject of the charge being heard; and(b) in finding that the Regulatory committee did not have the capacity to apply the standard of proof applicable to the matter before it. Judgment [54 5.His Honour erred in finding: (a) the Regulatory Committee received no submissions or assistance as to the role the record of the respondent ought to play in its deliberation as to his guilt or innocence, charged before it; (b) that the absence of such submissions or assistance must inevitably prejudice the Regulatory Committee in its deliberations. Judgment [55] 6.That His Honour erred in finding that there was no ‘due inquiry’ by the Regulatory Committee. 7.That His Honour erred by conducting a review on the merits of the decision of the Regulatory Committee. 8.That His Honour erred in finding that the Greyhound Racing appeals Tribunal did not apply the test in Briginshaw v Briginshaw in its re-hearing on the appeal from the respondent. 9.That His Honour erred by reviewing the decision of the tribunal on its merits. Judgment [57] – [68]”

Ratio Decidendi

Legal Principle Established

In response Hartmann & Associates, representing the Greyhound Racing Authority, stated on 6 June 2000: “I make the following important points at the outset:1. Your client’s right to silence is not questioned and the Regulatory Committee will be instructed that no adverse inference may be drawn against your client by reason or any exercise by him of that right. 2. Contrary to your comments the Authority is not proceeding with haste, it has not been guilty of failings of administration and it has no embarrassment other than by reason THAT IT WAS THE VICTIM OF A DISHONEST EMPLOYEE .3. The Authority is charged by statute in the control and regulation of greyhound racing. There is a strong public interest in the due prosecution by the Authority of the alleged wrongdoings by registered persons and persons associated with greyhound racing. ANY WISH BY YOUR CLIENT TO EXERCISE HIS RIGHT TO SILENCE DOES NOT OUTWEIGH THESE CONSIDERATIONS. 4. The Regulatory Committee is aware of your letter. We will be submitting to the Regulatory Committee that the disciplinary proceedings against your client should proceed promptly for the reasons set out in paragraph 3 above.” Thereafter the matter proceeded in the Regulatory Committee in the absence of Mr Bragg. Counsel assisting was Mr Callaghan of counsel. On 13 June 2000 in its submissions to the Committee, Heenan & Company on behalf of the respondent, relied upon submissions that were put before the ICAC by counsel assisting on 15 May 2000 (at page 83 points 150 – 151). These are extracted as follows: “Other activities of Mr Bragg, Mr Potter and Mr Gill 150.It is common ground between Mr Potter and Mr Gill that the corrupt arrangement which applied to Mr Gill was extended to cover Mr Bragg’s dogs (CT 148.1). 151.Nevertheless there is no evidence directly linking Mr Potter to Mr Bragg and no evidence, apart from the evidence of Mr Gill that Mr Bragg knew of the arrangement. In the circumstances it is not submitted that any findings should be made.” Heenan & Company’s letter of 13 June 2000 went on to state: “The evidence of Mr Potter on pages 93 - 95 of the transcript is in effect that there was no communication at all between Mr Bragg and himself concerning the alleged arrangement. The only information which he had concerning Mr Bragg’s involvement came from he (Mr Potter’s) conversations with Mr Gill. The evidence of Mr Potter in relation to Mr Bragg is therefore caught by the hearsay rule. The Committee cannot rely on the evidence of Mr Potter to support that of Mr Gill. The evidence of Mr Gill on the issue at pages 147 - 150 inclusive is continually inconsistent. No Tribunal acting responsibly could draw a conclusion adverse to Mr Bragg based on that evidence. Mr Gill at page 147 point 40 says that Mr Bragg: “Wasn’t involved in any way.” Although Mr Gill later says (page 148) that an arrangement came about whereby Mr Bragg asked Mr Gill to get him some cover and that he made payment to Mr Potter on Mr Bragg’s behalf, Mr Gill says the money came from his own pocket, that he never sought reimbursement from Mr Bragg and that Mr Bragg never made any offer to make payment. Mr Gill said that he had obtained protection as a favour to Mr Bragg, that Mr Bragg never knew that it was Mr Potter who was providing the protection. The Committee acting properly should find that it should make the same findings as on the whole of the evidence given to the ICAC by Mr Gill as counsel assisting the ICAC submitted should be made. The Committee should assess the whole of the evidence given to the ICAC by Mr Gill not only pages 147 - 150 inclusive to make a realistic assessment of his credibility. There is no logical reason why the Committee should make the same finding about Mr Gill as submitted by counsel assisting the ICAC. See, for example, page 30 of the Submissions at point 55: “It is obvious that Mr Gill was an untruthful witness who was prepared to say anything to protect his position or to avoid public humiliation.” Counsel assisting described the evidence given by Mr Gill in public session as “MUMBO-JUMBO” See page 32 at point 61. Counsel assisting also noted the complete inconsistency between the evidence given by Mr Gill in private session (which is now available to this Committee) and that given in public session. It should be noted that counsel assisting the Commission has recommended that Mr Gill be charged with 5 charges of giving false evidence to the Commission. Finally, “it is emphasised that the charge of being a party to the payment by Mr Gill of money to Mr Potter cannot be sustained even if the evidence of Mr Gill is accepted. The evidence of Mr Gill, such as it is, is that MR BRAGG HAD NO KNOWLEDGE OF THE INVOLVEMENT OF MR POTTER AND NO KNOWLEDGE OF THE PAYMENT OF ANY MONEY. The highest evidence that Mr Gill reaches is that Mr Bragg believed that a return favour was being done to him by Mr Gill. The Committee must be comfortably satisfied that the evidence supports conviction GIVEN THE GRAVE NATURE OF THE CHARGE (corrupt conduct) and the likely penalty, namely disqualification. It could not be so satisfied on the evidence of Mr Gill.” The refusal to stop the Inquiry