Greyhound Welfare and Integrity Commission v Bell - [2023] NSWSC 1150

Supreme Court

New South Wales

Medium Neutral Citation: Greyhound Welfare and Integrity Commission v Bell [2023] NSWSC 1150
Hearing dates: 28 June 2023
Date of orders: 22 September 2023
Decision date: 22 September 2023
Jurisdiction: Common Law
Before: N Adams J
Decision:
(1) The summons is dismissed.
(2) The plaintiff is to pay the first defendant’s costs on the ordinary basis.

Catchwords:
ADMINISTRATIVE LAW – JUDICIAL REVIEW – where greyhound tested positive to prohibited substances after a race – whether factual finding as to when the greyhound ingested the prohibited substances was legally unreasonable – finding was based on expert evidence – high threshold for establishing legal unreasonableness or illogicality – not established – whether Commission was denied procedural fairness in not being on notice that the Tribunal would find the contamination happened post-race – where finding not specifically advanced by the parties – Commission was on notice and had the opportunity to make submissions – whether Commission was on notice that the Tribunal would accept expert evidence as to timing but not contamination – no denial of procedural fairness – whether penalty imposed was unreasonable or irrational because it was manifestly inadequate – not established

Legislation Cited:
Greyhound Racing Act 2017 (NSW), ss 4, 55, 58(1), 59(1)
Greyhound Racing Rules 2022, rr 42(2), 83(2(a)
Racing Appeals Tribunal Act 1983 (NSW), ss 5, 6, 15A, 16(1)(2), 17A(1)(2), 18
Racing Appeals Tribunal Regulations 2015 (NSW), regs 9(1), 10
Supreme Court Act 1970 (NSW), s 69

Cases Cited:
Donaghy t/as GJ Donaghy & Company Solicitors v Legal Aid Commission of NSW [2022] NSWSC 626
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kavanagh v Racing New South Wales [2019] NSWSC 40
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32
McDonough v Harness Racing Victoria [2008] VRAT
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 6
Re Refugee Review Tribunal; Ex parteAala (2000) 204 CLR 82; [2000] HCA 57

Category: Principal judgment
Parties: Greyhound Welfare and Integrity Commission (Plaintiff)
Andrew Bell (First Defendant)
Racing Appeals Tribunal (Second Defendant)
Representation:
Counsel:
Mr D Villa SC with Mr M Watts (Plaintiff)
Mr M Maconachie (First Defendant)
Solicitors:
Greyhound Welfare and Integrity Commission (Plaintiff)
Maher Legal Pty Ltd (First Defendant)
Crown Solicitor’s Office (NSW) (Second Defendant, Submitting Appearance)

File Number(s): 2023/00070091
Publication restriction: Nil.

JUDGMENT

By summons filed on 28 February 2023, the plaintiff, the Greyhound Welfare and Integrity Commission (“the Commission”), seeks judicial review of the decision of the second defendant, the Racing Appeals Tribunal (“the Tribunal”), on 24 January 2023 allowing an appeal by Andrew Bell (the first defendant) against the severity of the penalty imposed on him for a breach of r 83(2)(a) of the Greyhound Racing Rules 2022 (“the Rules”). That rule provides that greyhounds must be “presented” for racing free of any prohibited substances.
Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWSC 1150
Decision Date: 22 September 2023

CaseChat Overview and Summary

In the case of Greyhound Welfare and Integrity Commission v Bell, the applicant, the Greyhound Welfare and Integrity Commission, sought judicial review of a decision made by the Tribunal in relation to a greyhound that tested positive to prohibited substances after a race. The Tribunal found that the contamination occurred post-race and upheld the penalty imposed by the Commission. The Commission argued that the Tribunal's factual finding as to when the greyhound ingested the prohibited substances was legally unreasonable, and that it was denied procedural fairness in not being on notice that the Tribunal would make such a finding. The Commission further argued that the penalty imposed was unreasonable or irrational because it was manifestly inadequate.

The court considered whether the Tribunal's factual finding was legally unreasonable or illogical. The court held that the finding was based on expert evidence and that there was a high threshold for establishing legal unreasonableness or illogicality. The court found that the Commission had not established that the finding was legally unreasonable or illogical. The court also considered whether the Commission was denied procedural fairness in not being on notice that the Tribunal would make such a finding. The court held that the Commission was on notice and had the opportunity to make submissions on the issue. The court further held that there was no denial of procedural fairness. Finally, the court considered whether the penalty imposed was unreasonable or irrational because it was manifestly inadequate. The court found that the Commission had not established that the penalty was unreasonable or irrational.

The court dismissed the application for judicial review. The Tribunal's decision was affirmed, and the penalty imposed on the greyhound's owner was upheld. The court held that the Tribunal's factual finding was not legally unreasonable or illogical, that there was no denial of procedural fairness, and that the penalty imposed was not unreasonable or irrational. The application for judicial review was dismissed with costs.

Orders