Greyhound Racing Authority (NSW) v Bragg

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

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.
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.
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.
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.
The decision of the Tribunal was a decision dismissing an appeal by the respondent from that decision of the Regulatory Committee.
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 void;
(b)made an order directed to quashing the decision of the Tribunal; and
(c)ordered that the appellant, Greyhound Racing Authority (NSW), pay the respondent Mr Bragg’s costs of the proceedings.
The declaration made by the primary judge as to the decision of the Regulatory Committee reflected his finding at Red, 27 (judgment [56]) based on the reasoning at Red, 25–27 (at [50] – [56]). The principal questions which arise on this aspect of the appeal is whether the Regulatory Committee had a duty of “due inquiry”, distinct from the requirements of procedural fairness, the content of that duty, and whether it was breached; see Red, 32 (Notice of Appeal, grounds 1 and 6).
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.
Consequent upon the conduct of that ICAC inquiry, the Authority charged the respondent with a breach of Rule 9(4)(a) by letter dated 17 May 2000. The charge is set out at Red, 9 (judgment [12]).
The charge was:
“That as a registered person prior to April 2000 Mr Bragg did something in connection with greyhound racing which was corrupt in that he was a party to the payment by Mr Gill of money to Mr Potter the Chief Steward of the Authority being a breach of Authority rule 9(4)(a)”
On 23 May 2000 the charge was served on Mr Bragg by a letter stating that “you will appreciate that it will be in your interests that you appear at the enquiry”, but allowed written submissions (CB, 8). He was advised he could be legally represented and that he or his legal representative could question witnesses and make submissions (Red, 9 at [14]). What thereafter occurred up to the hearing is summarised by the primary judge (Red, 9 [14]).
Thus on 26 May 2000 Mr Bragg’s lawyers, Heenan & Company, wrote to the Chief Executive of the Greyhound Racing Authority in the following terms. The letter stated, inter alia, that it had been submitted against Mr Bragg that there were serious criminal charges sought to be brought against him. Further, that a suspect in connection with criminal charges had a fundamental right to silence in the face of an investigation of those charges, citing Petty v Maiden (1981) 55 A Crim R 322 at 323. Further, that involuntary interrogation by ICAC did not affect in any way the appellant’s entitlement to take advantage of the right, and it was contended that the Authority was proceeding with haste because of embarrassment at its own failings of administration. It raised what it described as a serious question of fairness regarding Mr Bragg, namely:
“To require a person in his circumstances to answer purported charges from a regulatory or disciplinary (sic) is calculated to cause grave prejudice to him. In my submission it interferes with his legal rights as stated by the High Court in Petty v Maiden because he cannot adequately deal with your charges unless he speaks about the alleged incidents and/or makes submissions about them. Further, your organisation has now power to extend to him any protection under the Evidence Act New South Wales in connection with anything said by him. Nevertheless in my submission it is incumbent for you to serve on me on behalf of Mr Bragg a complete copy of any material upon which you intend to rely in your proceedings as has been flagged very clearly by counsel assisting the ICAC there may be issues as to the lawfulness of the use of some of that material against my client. It is only by service of copies of all that material with adequate notice that my client will have the opportunity to examine and challenge if necessary the legality of your proceedings. Further I suggest that your organisation should give due thought to the legal consequences for purporting to proceed against my client before he is dealt with concerning any possible criminal charges concerning the very same incidents. My client expressly requests that you do not proceed against him in any way until the issue of criminal charges concerning the same alleged incidents has been finalised.”
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
At page 41 of the Regulatory Committee hearing on 14 June 2000 the following exchange occurred:
“The Committee at this stage might wish to take a break to consider whether it should accede to the request made by letter by Mr Heenan that the charges against Mr Bragg not proceed at all pending the criminal proceedings.”
Chairman: “Yes, we will consider that matter now.”
Short adjournment.
Chairman: “Gentlemen the Regulatory Committee have decided against the legal representations made on behalf of Mr Bragg requesting that we not proceed with the charges laid against him. We do this having regard to the considerable public interest in this matter concerning the greyhound racing industry as a whole.
Mr Callahan, would you like to continue?”
Submissions to the Committee
The Submissions to the Committee all involved evidence given by the two witnesses to the ICAC, namely Mr Potter the Chief Steward who had admitted to ICAC that he had interfered with drug testing and certificates for greyhounds and Mr Gill who had profited by such conduct. Both, I observe, gave evidence which required to be treated with considerable caution. As I later record, the Tribunal made clear that it did approach that evidence with caution, as tainted evidence, but finally accepted it, though describing the evidence as “quite meagre”. It said it did so because given “against his interests” in each case and because Mr Bragg maintained continued amity towards his accuser Mr Gill, when one would expect indignation or remonstration. I shall return to that later.
The allegation that the respondent had breached that Rule was then heard and determined by the Regulatory Committee on 14 June 2001. The Committee was assisted by the legal adviser Mr Callaghan. The respondent did not appear at the hearing, having protested at it taking place and no evidence was adduced on his behalf. However, a letter from his solicitor making submissions on his behalf was before the Committee at the hearing and considered by it; Red, 12 (judgment [20] and [21]); Combined Book, 28 (Ex RC1, T, 40.2). The ICAC evidence was before the Committee and evidence, as foreshadowed, was given by Mr Potter who attended, but not by Mr Gill save that his ICAC evidence was before the Committee. Mr Potter’s evidence at ICAC and subsequently before the Committee was that he had never dealt personally with Mr Bragg but received all payments from Mr Gill. According to Mr Potter’s evidence, Mr Gill said this was an arrangement Mr Bragg acquiesced in, being paid between $1,000 to $2,000 to give Mr Bragg’s dogs “protection” from swabbing.
Mr Potter’s evidence was specifically as follows in its salient points:
Firstly, the following exchange took place (page 44 of transcript):
Question: Mr Callaghan – “Now can I ask you just for some more details concerning Mr Bragg? I gather you didn’t ever speak directly to Mr Bragg, is that so?”
Answer: Mr Potter – “That is correct.”
When asked about Potter’s knowledge of any association between Gill and Bragg Mr Potter answered:
“Oh you know, certain people associate with certain people within the industry. I have seen them at meetings together. I have seen them handle one another’s greyhounds and help one another out and that type of thing. It is common knowledge within the industry that Mr Gill and Mr Bragg are good friends and associates.”
Later Mr Potter said:
“Well I think when this first started. I can’t remember how long ago. As I just previously said Mr Gill had said to me: “Rod’s got a few greyhounds running around at the moment. Can he – would it be okay if he was looked after the same as myself?” And I said oh yeah I don’t think it is a problem. And he said: “Well if there is a problem I’ll let you know.” “
The remainder of the evidence was simple conversations regarding conjecture over Mr Bragg between Mr Gill and Mr Potter.
At page 47 of the transcript Mr Potter asserts:
“All I can say is I am positive in my mind through the discussions I had with Mr Gill that Mr Bragg was fully aware of the circumstances he was involved with.”
One of the members of the Regulatory Committee at page 48 of the transcript asked counsel:
“I just want to ask Mr Callaghan a question. In respect of the transcript pages that were given to us, on number 11,113 of the transcript. The reference is that Mr Bragg appears and wants to swear on the Bible was there evidence led from Mr Bragg that will be pertinent to this hearing?”
Mr Callaghan replies: “No, the answer to that is no.”
Thereafter Mr Callaghan says at section 38: “Apart from anything else section 38 of the ICAC Act.”

The respondent complains that this was misleading if it was intended to convey that Mr Bragg did not give any evidence about allegations put to him regarding knowledge of the payment of money. Such evidence was also given before the ICAC. However, as Mr Callaghan points out, section 38 was claimed in those proceedings and Mr Bragg’s own evidence could not be led in the Committee proceedings against Mr Bragg.
Finally Mr Potter says (at page 47 of the transcript):
“Well he would say Rod owes you (speaking of Gill) or Rod will have to give you money. Just general things in discussion like that would refer to it being Rod, Mr Bragg.”
The case is put by Mr Callaghan that:
“The assertion is not that Mr Bragg actually paid the money but that he knew moneys were being paid by Mr Gill to Mr Potter.”
This evidence from Mr Potter was clearly hearsay evidence, but the Committee was not bound by the rules of evidence (Regulation 11 of Greyhound Racing Authority (Appeals) Regulation 1999) nor indeed the Tribunal (Regulation 13).
Mr Gill was not called to give evidence. His evidence, not given direct, was that tendered from the ICAC hearing. In it, he claimed Mr Bragg was aware and implicated in the arrangement, but so that, according to Mr Gill, Mr Bragg did not pay or reimburse the money Mr Gill paid to Mr Potter; judgment Red, 11-16 at [22]. I have earlier pointed out that s37(3) of the ICAC Act precludes such answers at the ICAC hearing being admissible in evidence against the person (meaning the person giving the evidence) in any disciplinary proceedings. That has two implications. First it reduces the extent to which it could be said to be evidence against interest, though (as I later elaborate) still adversely affecting an interest in maintaining a good reputation. Second, it meant that there was nothing to preclude admissibility of that evidence against a third party, Mr Bragg.
The Regulatory Committee’s determination, given without reasons and containing simply a general reference to the evidence presented at the hearing, was that the respondent had breached Rule 9(4)(a). It imposed a severe penalty of 10 years disqualification and 10 penalty points by way of fine for that breach; Red, 22 (judgment [35]).
The Regulatory Committee was established by s8A of the Act. It comprised the three Government nominees to the Board of the Authority. It exercised all of the Authority’s regulatory functions including the conduct of disciplinary proceedings; see ss 6; 8(1)(a) (b) and (c) and 9.
The respondent appealed from that decision of the Regulatory Committee to the Tribunal on 20 June 2000; CB, 2 (Affidavit Marsden, paragraph 10), CB, 13.
The Tribunal was established by s18F of the 1985 Act. Appeals to it are governed by the Greyhound Racing Authority (Appeals) Regulation 1999. The appeal to the Tribunal from the decision of the Regulatory Committee in the opponent’s case was a re-hearing. By the Regulations, unless the Tribunal gives leave, the evidence considered by it on the re-hearing is confined to the evidence before the Regulatory Committee; see Regulations 17, 23 and 27.
On 30 August 2000 the respondent applied for leave to adduce evidence on the appeal. That leave was granted. CB, 49 (Ex GRAT-1). When the Tribunal heard the appeal on 11 September 2000 it was chaired by former District Court Judge the Hon B Thorley, QC and an assessor Mr Murray. The evidence before it comprised the material which had been adduced before the Regulatory Committee with the only additional evidence that now given orally by the respondent. The Tribunal had before it a transcript from the Regulatory Committee hearing. In that transcript Counsel assisting emphasised more than once (CB, 29, 39, 62) that the Committee had to be “comfortably satisfied” or “confidently satisfied” (CB, 114). Before the Tribunal the reference was to “an appropriate state of satisfaction” as being the basis on which it was properly pointed out to the Committee that it had to proceed (CB, 88). In submission to the Tribunal it was said that “there is sufficient material there which is logically or rationally probative to the requisite standard” (CB, 85). The appellant seeks to add a gloss never adopted by Committee or Tribunal, for what Dixon J in Briginshaw described as necessary in a court of law:
“in such matters reasonable satisfaction should not be produced by inexact proof, indefinite testimony or indirect references”.
I am accordingly satisfied that the Tribunal would have recognised that Briginshaw was the standard it would apply. But, as I later elaborate, how that standard was to operate must be understood in the context of an administrative body operating informally and not as a court of law bound by the law of evidence. The notion of “inexact proof, and indefinite testimony or indirect references” needs to be translated to a comfortable level of satisfaction, fairly and properly arrived at, commensurate with the gravity of the charge, achieved in accordance with fair processes appropriate to and adopted by such a body.
The Tribunal published its decision on the appeal on 13 December 2000. It dismissed the appeal. The Tribunal’s reasons are at CB, 88 (Ex GRAT-2). They are summarised as follows:
(a)That it was perfectly understandable that the Committee, by virtue of Mr Bragg’s non-appearance would come to a finding of guilt.
(b)That the witness Mr Potter is a self-confessed corrupt person who abused the trust and responsibility concomitant with the office of Chief Steward.
(c)That Mr Potter’s confessions included accounts of how he was able to manipulate the marble draw for drug testing and substitute samples for analysis so as to avoid any positive findings (performance enhancing drugs).
(d)That Mr Potter undertook such conduct on behalf of at least one other person, namely the trainer Mr Gill.
(e)That Mr Potter’s evidence, although tainted, is nonetheless acceptable given it was “against his interest”.
(f)That Mr Potter never had any direct involvement or association with Mr Bragg.
(g)That Mr Potter would make himself available to Mr Gill and that such service would also be available to Mr Bragg.
(h)That Mr Potter performed services for Mr Gill for money conveyed to him by Mr Gill. On such occasions it was in an envelope endorsed with the letter “R”. However that had no helpful significance since each of Potter, Gill and Bragg “had as his first name one beginning with ‘R’”.
(i)That whenever Mr Potter did receive money from Mr Gill it was accompanied with a statement from Mr Gill that this was from Mr Bragg or words to that effect.
(j)That Mr Gill was a personal friend of Mr Bragg and that they had been engaged in the industry for 30 years and would provide mutual assistance to each other, for example if Mr Gill had starters at two tracks on the one night including one where Mr Bragg would be it was Mr Bragg who would provide assistance in handling, possibly providing backing to Mr Gill who would be nominally in charge.
(k)Mr Gill himself equally was a self-confessed “corrupt person” whose evidence has to be approached with much caution.
(l)Much of Mr Gill’s evidence has to be accepted since it supports other material and is again “against his very interests”.
(m)Mr Gill says that Mr Bragg requested him to see whether he could get him cover if he ran dogs that had prohibited substances in them and Mr Gill approached Mr Potter to make that arrangement with money paid to Mr Potter by Mr Gill from Mr Bragg.
(n) Gill had never sought reimbursement from Mr Bragg.
(o)Gill never even discussed the fact of any such payments with Mr Bragg.
(p)The total sum paid on behalf of Mr Bragg according to Mr Gill was $1,000.00 or $1,200.00.
(q)That the Tribunal had not had the opportunity to hear or see Mr Potter or Mr Gill in person, only selected amounts of transcript from the ICAC, together with the record of the Regulatory Committee.
(r)It was very difficult to get a proper feeling of the credibility of either Mr Gill or Mr Potter.
(s)That the Tribunal is confounded by the evidence that Mr Gill never sought from his friend of such long standing any return of the cash he gave to Mr Potter.
(t)The Tribunal accepts there were a number of occasions when Mr Gill nominated to Mr Potter that there was a dog under the care of Mr Bragg for which cover was sought.
(u)How then could it come about that the identity of that dog could be conveyed to Mr Potter by Mr Gill without knowledge derived by him from Mr Bragg (citing page 148 of the ICAC transcript)?
(v)The only evidence about betting came from Mr Bragg himself who was not frightened to invest up to $1,000.00.
(w)The Tribunal does not know the identity of any dog which received cover from Mr Potter on behalf of Mr Bragg.
(x)The Tribunal considered the proposition that Mr Gill made a suggestion to Mr Bragg to become involved in conduct which can only be labelled as corrupt but Mr Bragg did not do anything to take it any further. If that is to be accepted as the picture then the charge would fail.
(y)It is not corrupt to discuss corruption. Mr Bragg’s complicity can only be identified by some overt act in furtherance.
(z)That Mr Gill’s accusations against Mr Bragg were in effect “loading up his good friend” but Mr Bragg did not show any indignation or remonstration proportionate to the evil done, rather amity continued. Indeed Mr Bragg indicates a measure of sympathy for Mr Gill.
(aa)Finally, “Our overall view of this material leads us to say that notwithstanding quite meagre evidence submitted we are yet satisfied that Mr Bragg did play an active role and participated in Mr Gill’s scheme to get cover”.
(bb)Additionally, “that the gravamen of the charge is that the Tribunal be satisfied that Mr Bragg was a participant in a nefarious scheme which resulted in the passing of money and it is not to the point that the money is not to be sourced to him.”
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]”
I shall commence by considering the first appeal ground. The primary judge’s reasoning appears to be based upon Rule 9(4)(a) rather than Rule 9(1), in each case under the relevant Act, namely the Greyhound Racing Control Board Act 1985. It is however important that I quote Rule 9(4)(a) in its context of the remaining subparagraphs that precede it including the primary sub-rule 9(1):
“Functions of Authority
9.     (1)   The authority may inquire into, or cause to be inquired into, any matter or thing in connection with greyhound racing.
(2)   The Authority may require the attendance of and the giving of evidence by any registered person or any other person participating in or associated with greyhound racing who, in the opinion of the authority, may have knowledge of any of the matters which are the subject of an inquiry under subrule (1).
(3)   If a person is, after notice to the person and due inquiry, found guilty by the Authority of having breached these Rules, the Authority may do any one or more of the following things:
(a)   it may impose a fine on the person not exceeding 20 penalty units;
(b)   it may suspend the person for such term as the Authority thinks fit;
(c)   it may disqualify the person either permanently or for such term as the Authority thinks fit;
(d)   it may cancel the registration of the person.
(4)   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 subrule (3) if:
(a)   the Authority is satisfied that the person has done anything 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; or
(b)   the person has been convicted of an offence by any court in New south Wales or elsewhere and the Authority is satisfied that the nature of the offence is such that the person’s continued participation or association with greyhound racing would be detrimental to the proper control and regulation of greyhound racing; or
(c)   the person fails to satisfy the Authority, after being called on to do so, that he or she has no connection or association with any person who is disqualified.
………”[emphasis added]
I should note also Rule 9(12) which again employs the expression “due inquiry”:
“(12)   The Authority may, after notice to a person and due inquiry, prohibit the person from:
(a)      being employed by, or appointed as an official of, a club, whether in an honorary capacity or for reward or remuneration; or
(b)      otherwise participating in the management of the club, where such action is necessary in the opinion of the Authority for the proper control and regulation of greyhound racing.” [emphasis added]
The process of reasoning followed by the primary judge does indeed indicate that he construed the words “due inquiry” as importing more than simply procedural fairness, as the following paragraphs of his judgment make clear (including omission of a critical element of the reasoning in General Medical Council v Spackman (1943) AC 627 to which I will return):
“[50]Notwithstanding that I have earlier dealt with tender of the ICAC transcript and the issue of self-incrimination there remains the ground of appeal that “due inquiry” must be accorded the party, the subject of the inquiry. In this respect I rely on General Medical Council v Spackman (1943) AC 627 per Viscount Simon at 635 and per Lord Wright at 640. Lord Wright held,
"I must first observe that they can in this case be properly taken as a description of what the Council has to do, namely, to make “due inquiry” which under the statute is the governing criterion that is an independent inquiry by the Council as the body responsible for its own decision”.
And further, quoting Bowen LJ at p643,
"That the substantial elements of natural justice must be found and there must be due inquiry”.
[51]There is no issue here that the plaintiff was given the opportunity of answering the matters alleged and that he was in that respect accorded procedural fairness. However, the fact that the Committee were simply given a limited part of a transcript of another proceedings wherein that other proceedings evidence was elicited by compulsion and given on the basis that there was no self incrimination and the Committee did not have the opportunity to properly assess the credibility of each witness, which occurs from observation of the witness giving evidence and the circumstances of the evidence a large part of which was led and the fact that the evidence was not given in circumstances where the person giving that evidence was conscious that it could be used against him renders the weight of the evidence extremely slight.
[52]Notwithstanding that Mr Callaghan advised the Committee of the standard to be applied, he then, in his role as prosecutor urged the Committee that the standard had been met. It is very difficult for the Committee to form a view relying on the advice given and receiving from that same person a submission as to the finding they should make.
[53]The very question which the Chairman asked, as set out above, seeking an opinion from Mr Potter as to the plaintiff’s involvement and on the face of it, accepting that opinion, shows that the Committee operated without proper guidance as to how to deal with that evidence. The submission made above as to what was or was not hearsay evidence and a complete failure to have pointed out that evidence of opinion is not hearsay evidence would make it very difficult for the Committee to properly assess the effect of that evidence.
[54]The fact that the Committee was directed to look at the evidence of a co-conspirator in the course of dealing with the plaintiff’s case and the failure to point out that the evidence of a person who is complicit in the proceedings has to be dealt with means that the Committee did not have the capacity to apply the standard of proof required for a matter of this seriousness.
[55]The fact that the Committee was asked to examine the record of the plaintiff at the same time that it deliberated on his guilt or otherwise with respect to the charge, and with no assistance as to how that record is to be used, must inevitably prejudice the Committee in its deliberations.
[56]I do not consider, therefore, that a due inquiry by the Committee occurred and thus the determination of the Committee should be set aside.” Red, 25-7

The primary judge reached similar conclusions in relation to the Tribunal, as I later explain. Following that, for the reasons which led him to reject the Tribunal’s findings as constituting a failure to carry out “due inquiry” he concluded (at [69]) “it is not necessary to decide the issue of Wednesbury unreasonableness, except to comment that it appears to me that the decisions were not discretionary but findings of fact”. However, as I explain (at [57]), neither merits review, nor Wednesbury unreasonableness operate as the standard in reviewing what is essentially a fact-finding process. Rather what is required is review based on the criterion of irrationality or illogicality, as now explained by the High Court in Re Minister for Immigration and Multi-Cultural Affairs; ex parte applicant S20/2002 (2003) 198 ALR 59; (2003) 77 ALJR 1165 (hereafter referred to as “S20”).
General Medical Council v Spackman (1943) AC 627 contains at 643 the following critical passage from Lord Wright, quoting Bowen LJ in Leeson v General Medical Council (1889) 43 Ch D 366 at 383-4:
“The language of the statute … ‘certainly imports that the substantial elements of natural justice must be found to have been present at the inquiry. There must be due inquiry. The accused person must have notice of what he is accused. He must have an opportunity of being heard, and the decision must be honestly arrived at after he has had a full opportunity of being heard. ….. We have seen that these conditions have been fulfilled by the inquiry ….. The functions of the court of law are at an end.”
Clearly “due inquiry” as construed in Spackman from s29 of the Medical Act of 1858 was here limited to according “procedural fairness”, in contemporary administrative law parlance.
Viscount Simon summed up the duty of affording a due inquiry in these words:
“So much follows from the structure of s29 and from the necessity, if there is to be ‘due inquiry’, of giving the accused party a fair opportunity of meeting the accusation. … the form in which this duty is discharged – e.g. whether by hearing evidence viva voce or otherwise – is for the rules of the Tribunal to decide. What matters is that the accused should not be condemned without being first given a fair chance of exculpation … it is not required to conduct itself as a court”. (at 635-6)
The primary judge correctly recognised that the respondent was given the opportunity of answering the matters alleged so that he was in that respect accorded procedural fairness. However the primary judge then entered into questions of the weight that should be given to the evidence obtained from the ICAC inquiry, pointing out that “the Committee did not have the opportunity to properly assess the credibility of each witness, which occurs from observation of the witness giving evidence and the circumstances of the evidence a large part of which was led and the fact that the evidence was not given in circumstances where the person giving that evidence was conscious that it could be used against him …”. In so doing, the primary judge was inescapably entering into the merits. This is so, though it be accepted that, “the merits” is that diminishing field left after permissible judicial review; Aronson, Dyer and Groves “Judicial Review of Administrative Action” (LBC, 3rd edition, forthcoming, 2004), chapter 4 at 18 (hereafter cited as Aronson, Dyer and Groves). (I have had the advantage of reading the relevant chapters in typescript.)
The primary judge also made reference (at [52]) that Mr Callaghan had advised the Committee of the standard to be applied. Then in his role as Prosecutor he urged the Committee that the standard had been met, meaning the standard of proof in accordance with Briginshaw. The respondent in submissions placed little if any reliance on that part of His Honour’s reasoning, it being apparent that Mr Callaghan was simply performing the traditional role of counsel assisting.
Further criticism of the Committee, again going beyond procedural fairness to a review on the merits, appears at [53] of the judgment. It is to the effect that the Committee failed to receive proper guidance as to how it should deal with Mr Potter’s evidence. This was on the basis that there was no advice as to which part of his evidence was hearsay and which not and, of the latter, which was evidence of opinion. I observe again that the Committee was not bound by the rules of evidence, so that such guidance was not necessary.
At [54] the primary judge criticised the fact that the Committee was directed to look at the evidence of a co-conspirator, which one can take to be Mr Gill, when there was “the failure to point out that the evidence of the person who is complicit in the proceedings has to be dealt with”. That led to the primary judge’s conclusion that this meant “the Committee did not have the capacity to apply the standard of proof required for a matter of this seriousness”. With respect, this was a non sequitur. That Mr Gill was complicit, if his evidence were accepted, must have been self-evident. The Committee did not need to have this pointed out. More importantly, it shows that the primary judge was here again entering into an analysis of the weight of the evidence by impermissible merits review, rather than concern himself with “procedural fairness” or the S20 review ground of irrationality or illogicality applicable to factual determinations.
At [55] the primary judge concluded that the fact that the Committee was asked to examine the record of Mr Bragg at the same time that it deliberated on his skills or otherwise with respect to the charge, and with no assistance as to how that record is to be used, “must inevitably prejudice the Committee in its deliberations”.
That last criticism, if correct, would come closer to matters of natural justice, though not as such concerned with procedural fairness. The problem with the primary judge’s observation is that in fact the Regulatory Committee did in fact receive an express submission that the record of the respondent was only relevant to the question of penalty should that arise; CB, 39 (Ex RC-1 at 51.8).
That the primary judge concerned himself not with procedural fairness but with matters going to merits, is clearly apparent from his dismissal of the original ground of appeal, namely “denial of procedural fairness” (at [41-3] Red, 18).
While the matters there under consideration, namely the issue of self-incrimination and the right to remain silent, are no longer live issues in the present appeal, they serve, as I have said, to reinforce the impression that the primary judge did not consider himself embarked upon an inquiry into procedural fairness in considering whether the Authority failed to conduct “due inquiry”. This is borne out by the opening words at [50] commencing, “Notwithstanding that I have earlier dealt with tender of the ICAC transcript and the issue of self-incrimination …”.
Finally, it should be borne in mind that the Regulatory Committee did not, from the brief statement of its conclusion, give any basis for inferring that it had considered the evidence of witnesses without regard to their complicity in the matters the subject of the charge or that it did not have the capacity to apply the standard of proof relevant to the charge. Indeed as to Briginshaw, Mr Callaghan made it perfectly clear, as the transcript reveals, that in relation to the respondent as also Mr Gill he agreed with the comment in the submissions made on behalf of the respondent that “the Committee must be comfortably satisfied that the evidence supports the conviction, given the grave nature of the charge of corrupt conduct and the likely penalty, namely disqualification”; see CB, 29 and 39. That reference to Briginshaw is important for it is described not in the Dixonian terms eschewing “inexact proof, indefinite testimony or indirect references” but by reference to being “comfortably satisfied”. That imposes not the exactitude of a court process but the comfortable satisfaction of an administrative body operating with informality and not by reference to the rules of evidence such as the hearsay rule. I would add that in my opinion there was, with respect, no sufficient basis for the primary judge to infer (at [54]) that the Committee did not have the capacity to apply that standard of proof so understood, either in terms of the advice given by Counsel assisting or the evidence before it.
This is sufficient to make out grounds of appeal 4 and 5.
Turning to the Tribunal’s determination, the primary judge’s primary focus was on whether the Tribunal failed to apply the standard in Briginshaw, having impliedly at least accepted that to be the applicable standard. He concluded that it did so fail; at [68] and see earlier [57]-[67] (Red, 27-29). I turn now to consider that question. I do so by reference to the judicial review standard of irrationality or illogicality which the primary judge should have applied rather than merits review.
First, I should record that the Tribunal did give reasons. The primary judge followed a process of reasoning in his criticism of the Tribunal which amounted to a merits review. The Tribunal’s reasons are earlier summarised in sufficient detail to show the steps that the Tribunal took in reaching the conclusion it did. The question which properly falls to be answered is not whether the Tribunal’s fact-finding process failed on its merits, or on a Wednesbury test of extreme unreasonableness. Rather it is whether that process failed in the factual determinations reached because they were “illogical, irrational, or lacking a basis in findings or inferences of fact supported on logical grounds”; S20 per McHugh and Gummow JJ at [34]. Though argument was not directed to S20, nor any Notice of Contention filed, given the conclusion I reach that even on the S20 mandated standard of review, the appeal must succeed, I have necessarily dealt with S20’s implications for permissible review. Not to do so, when the whole tenor of the primary judge’s approach was to attack the reasoning of the Committee and Tribunal, would leave it unclear what, if any, review was permissible of the respective decisions of Committee and Tribunal, when the High Court has laid down what, in factual determinations is permissible by way of limited review.
S20 was the culmination of a number of earlier High Court and other judgments which had doubted whether Wednesbury unreasonableness could be used to challenge grossly unreasonable fact-finding. This was notwithstanding that Mason J had suggested in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 that Wednesbury could be used for that purpose. This was also one of the apparent bases for the decision in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 191, 400, 408, 416-417, 423 and 433-434. However, that basis of Chan was subsequently doubted in: Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 273 (Brennan CJ, Toohey, McHugh and Gummow JJ) and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 649-650 (Gummow J). Gummow J in Eshetu (at 656-657) concluded that Wednesbury covered only discretionary decisions, not the fact-finding leading to those decisions. Gleeson CJ and McHugh J said in Eshetu (at 626) that there was a "serious question" as to whether Wednesbury covered fact-finding. Likewise in other courts, Upham v Grand Hotel (SA) Pty Ltd (1999) 74 SASR 557; Gamaethige v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 424 at 427 and 445-446; McCormack v Commissioner of Taxation (2001) 114 FCR 574 at 599; Perez v Minister for Immigration and Multicultural Affairs (2002) 191 ALR 619 at [126]; Finocchiaro v Law Society of New South Wales [2002] NSWSC 112 at [54]; and NAMM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 32 at [44].
Finally, the High Court resolved against Wednesbury irrationality review for factual determinations in S20 (supra). Instead S20 substituted what appears a more demanding or higher threshold for review. It is whether the ultimate determination of the relevant tribunal or body was based on factual determinations which were “illogical, irrational or lacking a basis in findings or inferences of facts supported on logical grounds” (at [34]) per McHugh and Gummow JJ (Callinan J agreeing). This is so, though the relevant function be a statutory function calling for a state of satisfaction on the part of the tribunal or body, or the formation of an opinion by it (at [53] to [55] per McHugh and Gummow JJ. That is to underline the distinction between error of fact and error of law, and factual as against discretionary determinations.
Gleeson CJ (at [9]) expressed some scepticism about a standard of review based on an extreme of unreasonableness, observing that
“[I]t is often unhelpful to discuss, in the abstract, the legal consequences of irrationality or illogicality or unreasonableness of some degree. In a context such as this, it is necessary to characterise the suggested error and relate it to the legal rubric under which a decision is challenged”.
Nonetheless, in accepting a standard of review conditioned by the claimed error and the legal rubric in which the challenge arises, his reasoning is not inconsistent with that of McHugh and Gummow JJ.
For Kirby J (in minority), this ground of review was simply seen as a manifestation of the common law’s capacity to evolve with the times, and to intervene in cases of extreme administrative injustice (at [161]). Kirby J posited this at [170] as an exception to Brennan J’s general proposition (in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 that administrative injustice is not a per se ground of judicial review.
The majority position was therefore that review of factual determinations of an administrative body, or the determination so based, is not merits review by another name. Moreover it was conceptually distinct from Wednesbury unreasonableness, a ground of review precluded by S476(2)(b) of the Migration Act 1958 (Cth). Exactly how permissible “irrationality” review is differentiated from Wednesbury unreasonableness and how it overlaps, remains to be resolved by future cases. However, this much is clear. An inquiry in the present case would not be a “due inquiry” if it were based on that extreme degree of unreasonableness connoted by the expression “illogical, irrational or lacking a basis in findings or inferences of fact supported on logical grounds”. I shall use the shorthand “irrational” to describe that standard. It is clearly for the challenger a demanding one with a high threshold just as it is relatively undemanding for the Tribunal. That emerges from what occurred in S20 itself.
The Refugee Review Tribunal had earlier concluded that S20 was a liar and therefore disbelieved anything important that he had to say in support of his asylum claim. His claims of being beaten whilst in prison were also disbelieved. Evidence in corroboration from a surgeon and a dentist that his injuries were consistent with a beating was rejected. This was partly because they were not expert in traumatic injuries, and partly because their opinions were based on their acceptance of what S20 had told them, which was a problem in light of the Tribunal’s adverse conclusion as to S20’s credibility. The man who collected S20 from the prison gave evidence that he was in a shocking state, but that, too, was rejected, apparently because S20 was regarded as a liar.
Kirby J was in a minority in seeking to upset the Refugee Tribunals Decision. Kirby J stressed, consistently with the majority view, that irrationality review is available only for seriously defective reasoning. But alone added that where human rights and liberty are at stake, to which may be compared the very serious penalties of disqualification in the present case, one is entitled to expect more care from decision-makers; at [150].
The majority (McHugh and Gummow JJ Callinan J agreeing) read the Tribunal’s reasons (for adverse evaluation of S20’s story despite its apparent corroboration) benevolently rather than literally. It was not irrational or illogical to give primary and prior consideration to the credibility and reliability of S20, before considering and in the end discounting corroborative evidence by reason of an adverse conclusion as to intrinsic credibility. Their approach points to a requirement for a high degree of irrationality or illogicality. As formulated by the majority, it is not confined to the illogicality of the decision-maker’s reasoning. It also extends to factual conclusions or inferences lacking support on logical grounds.
As to what irrationality connoted, relating it to the legal rubric under which the decision was challenged, Gleeson CJ concluded,
“all that the member was saying was that, for reasons already given, she found the applicant (appellant’s) story implausible, and in some respects unbelievable, and that she also rejected the evidence of the corroborating witness, even though she had no separate reason to doubt his credibility other than the reasons she had already given for rejecting the claim she was considering.” (at [12]).
That the member could have expressed herself more clearly was not enough for Gleeson CJ to conclude that was necessarily irrational or illogical.
I draw on this reasoning in order to test whether the primary judge’s primary conclusion, that the Tribunal did not carry out “due enquiry” and did so by failing to apply the test in Briginshaw, is sustainable. For that conclusion to be sustainable, the Tribunal must thereby be shown in the factual determinations it reached to have failed to apply the standard of satisfaction it purported to apply and thereby to have failed the irrationality standard in the factual determination made. It was not permissible to test the Tribunal’s determination by any other standard of reasonableness, and in particular to subject it to merits review or Wednesbury unreasonableness review.
Before considering this, one may readily put to one side criticism of the Tribunal based upon instances where the evidence of Mr Gill was said to be contrary to that of Mr Potter, when Mr Gill said “that monies Potter alleged had come from Bragg did not so come”. That kind of inconsistency falls well short of the benchmark of irrationality.
One may likewise immediately put aside criticism of the Tribunal to the effect that the evidence of each of Mr Potter and Mr Gill should not have been described as evidence “against interest”. While it is true that the evidence given before the ICAC inquiry could not be used against the persons giving it, in the sense of being available for criminal or civil action, that evidence clearly was damaging to their respective reputations as indeed s65(7)(a) of the Evidence Act recognises. That provision specifically includes damage to a person’s reputation within a non-exhaustive definition of what is a representation “against the interests of the person who made it”. So to conclude was hardly irrational or illogical.
One may similarly set aside criticism based upon whether Mr Gill might have his own direct knowledge of Mr Bragg’s dogs or his own interest in betting on them without ever involving Mr Bragg in the passing of money to Mr Potter. Likewise the absence of recollection by Mr Potter of any particular dog. These are all matters which, without irrationality or illogicality might be discounted by the Tribunal.
The argument for illogicality or irrationality pressed most strongly is that the Tribunal accepted the Briginshaw standard, yet, according to the primary judge, failed to apply it. Thus the Tribunal acknowledged that the evidence submitted against the respondent was “quite meagre”. The Tribunal said that Mr Bragg’s complicity can only be identified by “some overt act in furtherance”. It found that overt act in the failure by the respondent to show any indignation, or make remonstration proportionate to the evil done to him by Mr Gill in “loading up his good friend” with accusations. Instead amity continued, the respondent indicating rather a measure of sympathy for Mr Gill.

I would however accept that without irrationality the Tribunal could treat the combination of absence of remonstration and continuance of amity as in those circumstances indicating complicity and so amounting to “some overt act in furtherance of Mr Gill’s scheme to get cover” for Mr Bragg’s dogs. This is when reviewed against Mr Gill’s and Mr Potter’s evidence, and having heard Mr Bragg give evidence. The reasoning, like that of the Refugee Tribunal in S20, is not expressed impeccably or with total clarity. But that does not suffice to render it irrational or illogical. It is true that there is nothing “overt” in failure to remonstrate. But continued amity can be said without irrationality or illogicality to reflect overt behaviour. Whilst neither lack of remonstration nor continued amity constitute direct evidence of participation in the “nefarious scheme which resulted in the passing of money” it with the other evidence is capable of demonstrating complicity in that scheme by the respondent without that being necessarily irrational or illogical.
The question still remains whether that reasoning is on its face nonetheless irrational or illogical because it failed to satisfy a higher Briginshaw standard which the Tribunal and Committee were said to have espoused. Whether it did espouse such a standard, and the extent it did so needs to be looked at first.
It cannot be doubted that the Tribunal was well aware, to use its own words, “that it could not reach an adverse finding against Bragg unless it reached an appropriate state of satisfaction”; CB, 89. It had before it a transcript from the Regulatory Committee in which counsel emphasised this more than once. I would accept that the Tribunal was purporting to apply Briginshaw but only in this sense: that the Tribunal, like the Committee, had to be “comfortably satisfied that the evidence supports the conviction, “given the grave nature of the charge, corrupt conduct and the likely penalty, namely disqualification” (CB, 39 and see other references). The further explication of Briginshaw was never adopted by Committee or Tribunal whereby inexact proof, indefinite testimony or indirect references were to be eschewed. That is a stricture clearly applicable to a court of law dealing with accusations of gravity. But what is properly required for an administrative body, in order that it be, in a proper sense, “comfortably satisfied” does not call for the full rigor of that stricture. But equally clearly it does call for adequate evidence, informally obtained as it might be, of sufficient cogency to justify the Tribunal being comfortably satisfied in relation to the serious charge before it, with its grave consequences. This Tribunal , echoing Gleeson CJ’s words in S20, reaches comfortable satisfaction by reference to the requirements of the statutory context and the legal rubric which governs its procedures. These are characterised by the relative informality of a statutory tribunal, devising its own procedures, unbound by rules of evidence, but according procedural fairness and required to proceed in its factual determinations without illogicality or irrationality in the way described in S20.
In the present case, though different minds might reach different conclusions on the relative weight of the evidence from Messrs Potter and Gill, as well as the respondent and on the significance of a continued association and amity between the respondent and his accuser Mr Gill, the Tribunal did hear the respondent and did have evidence from Mr Potter and Mr Gill, though said by the Tribunal to be meagre. It simply could not be said that the Tribunal’s adverse factual conclusion against the respondent, or the inferences on which based, were irrational or illogical so as to require the Tribunal’s determination to be set aside. This is so even judged against the standard of comfortable satisfaction, which the Tribunal espoused. The Tribunal is not a court of law any more than the medical tribunal was in Spackman. Moreover as I have said, the Tribunal like the Committee was “not bound by the rules of, or practice as to, evidence but may inform itself of any matter in such manner as it thinks fit”; Regulations 11 and 23 of Greyhound Racing Authority (Appeals) Regulation. The Tribunal, like the Committee, may direct the manner in which any appeal before it is to be conducted; Regulations 15 and 28. Such informality reflects a very different context from a court of law in applying Briginshaw standards in the determination of serious allegations with serious consequences. What was here required was a comfortable level of satisfaction commensurate with the gravity of the charge, reached fairly and properly in accordance with the kind of processes appropriate to a tribunal, not a court of law. That, I am satisfied, was what occurred.
Thus the Tribunal was satisfied to reach the conclusion it did, doing so by a reasoning process which was not irrational. Neither was its fact-finding illogical in the steps and inferences it made to reach that conclusion, as its reasons demonstrate. That conclusion was carefully framed. It was not that Mr Bragg’s own money was necessarily paid over to Mr Potter. Rather it was that “Mr Bragg was a participant in a nefarious scheme which resulted in the passing of money”, it not being “to the point that the money is not to be sourced to him”. The very closeness of the continuing association between Mr Gill, Mr Bragg, Mr Potter’s earlier evidence and the evidence cited from Mr Gill, were matters which, without irrationality or illogicality, were capable of leading to comfortable satisfaction on this critical matter, adopting the relatively informal processes of the Tribunal.
I would reach no different a conclusion in relation to the Committee. I am satisfied that its ultimate factual determination, though not accompanied by reasons, has not been shown to be vitiated by irrationality in the sense used earlier.
OVERALL CONCLUSION
I conclude that the appellant succeeds both upon its principal grounds 1 and 8, as well the related grounds. In particular I conclude that:
(a)it has not been shown that there was an absence of “due inquiry” by either the Committee or the Tribunal;
(b)with respect, the process followed by the primary judge did amount to an impermissible merits inquiry in reaching the opposite conclusion, rather than considering the matter on the basis of whether factual determinations were irrational or illogical in the S20 sense; and
(c)so properly considered, the factual determinations, the inferences on which they depended, and the process whereby the relevant body reached a state of comfortable satisfaction on its ultimate factual conclusion so based were not in the case of either Committee or Tribunal shown to be irrational or illogical in the S20 sense.
ORDERS
I would order as follows:
(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.
IPP JA: I agree with the facts stated by Santow JA and that, for the reasons stated by his Honour, the primary judge undertook a merits review. I also agree with what is stated in [54] of Santow JA’s reasons and that grounds of appeal 4 and 5 are made out. Otherwise I adopt the same approach as Brownie AJA. I agree with the orders proposed by Santow JA.
BROWNIE AJA: I agree with the orders proposed by Santow JA. I think it is clear that the learned primary judge engaged in a merits review, and therefore that his decision cannot stand. I am however troubled by the circumstance that the respondent did not file or seek to file a notice of contention, and that there was no argument advanced on appeal as to what, precisely, followed from that.
In particular, the Court did not have the advantage of submissions as to what followed from the decision in Re Minister for Immigration and Multi-Cultural Affairs; ex parte applicant S20/.2002 (2003) 198 ALR 59; (2003) 77 ALJR 1165. In these circumstances, I would prefer to express no concluded view on this subject until the question has been argued.
I also agree with the conclusion expressed by Santow JA at [54].
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LAST UPDATED: 22/12/2003

[2003] NSWCA 388

22 December 2003