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 30047/01SANTOW JA
IPP JA
BROWNIE AJA22 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…
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- Case
- [2003] NSWCA 388
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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