Greyhound Racing Authority (NSW) v Bragg

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.