Greyhound Welfare and Integrity Commission v Verhagen
[2023] NSWSC 1140
•20 September 2023
Supreme Court
New South Wales
Medium Neutral Citation: Greyhound Welfare and Integrity Commission v Verhagen & Anor [2023] NSWSC 1140 Hearing dates: 14 September 2023 Date of orders: 20 September 2023 Decision date: 20 September 2023 Jurisdiction: Common Law Before: Elkaim AJ Decision: 1. An order, pursuant to s 69 of the Supreme Court Act 1970 (NSW), in the nature of certiorari, quashing the decision of the second defendant to dismiss Charge 13 brought by the plaintiff against the first defendant.
2. An order, pursuant to s 60 of the Supreme Court Act1970 (NSW), in the nature of mandamus, requiring the second defendant to dismiss the first defendant’s appeal against Charge 13 brought pursuant to s 15A(2) of the Racing Appeals Tribunal Act 1983 (NSW).
3. The matter is remitted in respect of Charge 13 to the second defendant to determine any penalty arising from the finding of liability in respect of this charge.
4. Each party is to pay its own costs of the proceedings.
5. I will hear the parties if any alternative costs order is sought.
Catchwords: ADMINISTRATIVE LAW – judicial review of decision by the Racing Appeals Tribunal – whether jurisdictional error or error of law established – nature of test to be applied – where greyhound trainer and breeder failed to provide assistance to injured greyhound pups
Legislation Cited: Greyhound Racing Act 2017 (NSW), ss 11, 35
Greyhound Racing Rules 2017 (NSW), rr 86(o), 106(d)
Prevention of Cruelty to Animals Act 1979 (NSW), s 4(2)
Supreme Court Act 1970 (NSW), s 69
Cases Cited: Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Plaintiff M64/2015v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50
Category: Principal judgment Parties: Greyhound Welfare and Integrity Commission (Plaintiff)
Alexander Verhagen (First Defendant)
Racing Appeals Tribunal (Second Defendant)Representation: Counsel:
Solicitors:
Mr M Watts (Plaintiff)
Mr S Sykes (First Defendant)
Greyhound Welfare and Integrity Commission (Plaintiff)
Shotters Lawyers (First Defendant)
The Crown Solicitors Office (Second Defendant)
File Number(s): 2022/377991 Decision under appeal
- Court or tribunal:
- Racing Appeals Tribunal
- Date of Decision:
- 27 September 2022
- Before:
- Mr D B Armati
JUDGMENT
Introduction
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This is a summons for judicial review brought by the Greyhound Welfare and Integrity Commission (GWIC). The summons is dated 14 December 2022. The principles for judicial review were set out by the High Court in Plaintiff M64-2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50 from [23]:
“23. It is necessary to make some preliminary observations in relation to the constraints within which the plaintiff's challenge to the validity of the Delegate's decision falls to be determined. These constraints are aspects of the scope of judicial review of administrative action, which is confined to the legality of the Delegate's decision. In particular, judicial review is concerned with whether the Delegate's decision was one which he was authorised to make; it is not:
‘an appellate procedure enabling either a general review of the … decision … or a substitution of the … decision which the … court thinks should have been made.’
24. First, the burden is upon the plaintiff to demonstrate that the Delegate's decision was affected by jurisdictional error. The plaintiff must show that the approach adopted by the Delegate ‘manifest[ed] a legally erroneous view as to what it was about which [he] needed to be satisfied,’ so that the Delegate lacked legal authority to make the decision that was made.
25. It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision, and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate. Further, ‘jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power’; but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. Further, the Delegate's letter is ‘not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”
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In this matter the allegation is of both jurisdictional error and error of law.
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The decision which is sought to be reviewed was made on 27 September 2022 by the Racing Appeals Tribunal. The parties agreed that the decision was administrative in nature.
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The whole of the Tribunal’s decision is not under scrutiny, only its rulings that the first defendant had not contravened rr 106(1)(d) and 86(o), as then in force. The Greyhound Racing Rules 2017 (NSW) in force at the time stated:
R 86 Offences
A Person (including an official) shall be guilty of an offence if the person –
…
(o) has, in relation to a greyhound or greyhound racing, done a thing, or omitted to do a thing, which, in the opinion of the Stewards or the Controlling Body, as the case may be, is negligent, dishonest, corrupt, fraudulent or improper, or constitutes misconduct;
…
R 106 Proper care (welfare) of greyhounds
(1) A registered person must ensure that greyhounds, which are in the person's care or custody, are provided at all times with -
…
(d) veterinary attention when necessary.
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By way of legislative background, I note ss 11 and 35 of the Greyhound Racing Act 2017 (NSW) state:
11 Principal objectives of Commission
The principal objectives of the Commission are as follows—
(a) to promote and protect the welfare of greyhounds,
(b) to safeguard the integrity of greyhound racing and betting,
(c) to maintain public confidence in the greyhound racing industry.
35 Commission to prepare code of practice
(1) The Commission is to prepare, for submission to the Minister, a code of practice relating to the welfare of greyhounds.
(2) The code of practice must (without limitation) deal with the following—
(a) standards for the keeping, treatment, handling and care of greyhounds,
(b) standards for the facilities, equipment and conditions at premises where greyhounds are kept, trialled, trained or raced,
(c) standards for the procedures and practices to be adopted in relation to the keeping, trialling, training and racing of greyhounds.
(3) Those standards are to promote the welfare of greyhounds and be consistent with the objects of the Prevention of Cruelty to Animals Act 1979.
(4) The Commission is to seek the advice of the Welfare Committee in preparing the code of practice and may consult with such other persons or bodies as the Commission considers appropriate.
(5) Without limiting subsection (4), the Commission must consult with GRNSW in preparing the code of practice.
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Further, the Prevention of Cruelty to Animals Act 1979 (NSW) s 4(2) states:
(2) For the purposes of this Act, a reference to an act of cruelty committed upon an animal includes a reference to any act or omission as a consequence of which the animal is unreasonably, unnecessarily or unjustifiably—
(a) beaten, kicked, killed, wounded, pinioned, mutilated, maimed, abused, tormented, tortured, terrified or infuriated,
(b) over-loaded, over-worked, over-driven, over-ridden or over-used,
(c) exposed to excessive heat or excessive cold, or
(d) inflicted with pain.
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The first defendant opposes the orders sought. The second defendant has submitted to the Court’s decision.
Background
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A brief statement of the background is as follows:
The first defendant is a registered greyhound trainer and breeder.
On 25 May 2021 Princess Zesta gave birth to 10 puppies by caesarean section at the Williams River Veterinary Clinic. After giving birth to the pups, Princess Zesta and the pups were returned to the first defendant’s kennels. Later, on the same day, Princess Zesta attacked the litter and killed eight of the pups. The two that survived were not provided any veterinary assistance and later died. The “failure” to provide assistance led to the charge under r 106(d), referred to as Charge 13.
On the night of 17 November 2021, and into the early hours of the next day, a greyhound called Little Prospect, rolled over inside a whelping box and crushed two pups to death. Negligence was alleged against the first defendant, leading to the charge under r 86(o), referred to as Charge 18.
On 18 August 2022 the plaintiff found the first defendant guilty of the above two charges. A penalty was imposed.
On 26 August 2022 the first defendant appealed the above findings.
As mentioned, the appeal was successful in relation to the two charges detailed above. The decision, given ex tempore on 27 September 2022, followed a two-day hearing.
It is to be noted that the first defendant had originally faced 27 charges. He pleaded guilty to some of them and not guilty to others. He was found guilty of 16 charges. The appeal to the second defendant varied between challenges to findings of guilt and to severity of penalty.
Charge 13
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The jurisdictional error asserted by the plaintiff is that the Tribunal incorrectly construed the words “when necessary,” applying a subjective test rather than an objective or perhaps even an absolute test.
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Jurisdictional error can be established when an administrative tribunal:
“… falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunals exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.” Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 at [14].
The Tribunal’s observations and findings
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The important observations and findings of the Tribunal are these:
Shortly after finding the dead and injured pups, the first defendant took photographs of the two living pups.
“Those photographs depict two greyhounds that have literally been torn apart. There are explicit signs of damage about the head area. There are parts of internal organs and other parts of the greyhounds lying beside them and evisceration of the most substantial extent apparent.”
The injuries shown in the photographs were “catastrophic”.
The first defendant “based upon his experience of some 20 years, formed an opinion that they could not survive.”
The first defendant said, “that they were not screaming in pain, did not appear to be in pain, but in fairness, both before the Tribunal, before the stewards’ inquiry and at other times, he acknowledged that there obviously must have been pain.”
The first defendant had no access to pain relief. “The only pain relief that could have been of any use whatsoever could only have been prescribed by a vet.”
The vet was at least half an hour away and it was after hours. “He determined, on the basis of all of that evidence, that there was nothing more he could do. In other words, even if he set out to get to the vet, he did not believe he would get there in time.”
“In determining this matter, the Tribunal cannot lose sight of the gravity of the injuries which each of these pups received. As described, they were horrific.”
“The Tribunal is of the opinion that the conclusion reached by the appellant that there was nothing in reality that could be done to keep these greyhounds alive, that the prospect of taking them, if he could get to a vet within the half-hour possible – and he describes how neither he nor his wife were capable of driving them to a vet – that he formed an opinion that they simply were not able to survive.”
“The issue then becomes one of aspects of pain and suffering. The Tribunal accepts that at some stage these greyhounds must have been in excruciating pain. But at the time they were observed by the appellant, the evidence that is available to the Tribunal is that there were no visible signs of pain, they having reached a stage of near death. It is possible, and it is conjecture, that their injuries at that point was so severe that they were incapable of depicting pain to an observer.”
“The rule requires veterinary attention when necessary. The totality of the evidence is that any veterinary attention would not have saved these pups. At best, it would have alleviated pain and suffering and as described, it is not established on the evidence that by the time they reached a vet, a minimum of half an hour away, if immediate veterinary attention was available – and on the evidence that appears to be highly unlikely – that there would have been any alleviation of pain and suffering.”
“The conclusion is these injuries were so horrific that the Tribunal accepts the appellant’s expertise and explanation and is not satisfied, despite the gravity of the matter, that he has failed to ensure veterinary attention when necessary.”
The competing submissions
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The plaintiff submitted that the Tribunal had imposed a subjective test. Rather it should have applied an objective test, perhaps even an absolute test. In other words, perhaps exempting very minor injuries, as long as an injured greyhound was alive, veterinary assistance was necessary.
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Veterinary assistance did not necessarily mean the taking of the animals to the vet. In the first instance a telephone call could have been made to a vet, perhaps the photographs could have been sent to the vet. There was evidence that the first defendant from time to time had consulted with a Dr Saunders on the telephone.
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Most importantly, said the plaintiff, the test for “necessary” could not include the opinion of the first defendant.
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The first defendant did not submit that a subjective test was appropriate but said that the application of an objective test could be met by taking into account the views of the first defendant. He was an experienced dog breeder; he had seen many litters born and he had accumulated an extensive amount of knowledge enabling him to make a decision about the necessity for veterinary treatment. In other words, if one applied a test of what was reasonable in the circumstances, then the view of the first defendant was a legitimate gauge of that test.
Jurisdictional error
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I think jurisdictional error has been established. The problem with the Tribunal’s findings rests in the reliance on the first defendant’s expertise. There was some argument about the length of time during which the pups remained alive. The range seems to be between one and two hours. Even at one hour the pups could well have been in pain.
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The expertise of the first defendant may have extended to many aspects of breeding, but there is no evidence to suggest any expertise in the comforting of a dying greyhound. The first defendant had no pain relief available. At the very least a consultation with a vet might have assisted with this aspect or even the acceleration of the termination of life.
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The reliance of the Tribunal upon the expertise of the first defendant has the added question of when such an expertise becomes dependable. The first defendant had 19 years in the industry. Would 18 or 15 or 10 years have been sufficient?
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The first defendant submitted that, on the plaintiff’s interpretation of “when necessary” he would have become liable to a guilty finding immediately upon finding the pups, or even had he placed them in his motor car to drive to the vet, notwithstanding that they soon died. In addition, the first defendant and his wife were apparently to upset to drive.
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I reject the submission that such a consequence would have ensued. The first defendant had the option of a telephone consultation with a vet. The fact that the vet could not have physically taken any action does not equate to an absence of veterinary attention. As with a “tele-health” call, advice and instruction can be provided by a medical practitioner over the phone.
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The two pups were obviously very seriously injured, and no doubt would never have been capable of fulfilling any racing objective. However, as seen above, the purpose of the rules is to “promote and protect the welfare” of greyhounds. This is not a utilitarian objective; welfare extends to the protection of the wellbeing of a greyhound for the duration of its life.
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As soon as the injured pups were discovered veterinary assistance became necessary. There was no avenue, other than for a very minor injury, for the first defendant to exercise any discretion to not seek veterinary assistance. This is especially so when, despite all his experience he had no means of assisting the pups through pain relief. One or two hours may seem a relatively short period of time, but to a terribly injured and dying pup, it is the equivalent of a lifetime. One might also ask what the position would have been if the pups had remained alive for a longer period, and if so, what period would have been the cut-off time for reasonable action?
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In respect of the Cruelty to Animals Act, I agree with the plaintiff that s 4(2) is relevant only to this Act and that s 35 of the Greyhound Racing Act does not impose the provisions of the former Act upon the care of greyhounds.
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Accordingly, I am satisfied that there has been jurisdictional error and the finding of the tribunal must be quashed.
Charge 18
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I have come to a different view in respect of this charge. I think I can state my reasons fairly briefly.
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The principal findings and observations of the Tribunal were as follows:
“it is said, therefore, that the appellant is armed with the knowledge of the possibility of pups being apparently squashed. In addition, it was the appellant’s evidence that he is aware that on other prior occasions the same thing has apparently happened. He could not be precise about the numbers, but it was not that many times, he said in cross-examination.”
“The evidence establishes that neither inspector said to the appellant, ‘You must have roll bars’, or ‘you should have roll bars, or ‘we recommend roll bars’. At its highest, it was implied that he should have roll bars.”
The inspectors issued a work direction. That work direction did not mandate the installation of roll bars.
In relation to causation: “Therefore, the failure to have the roll bar may or may not be critically important to the way in which these two greyhound pups died.”
“The standard expected of an experienced breeder is that that breeder will have, especially when armed with prior knowledge, taken all steps necessary to ensure the welfare of greyhounds by keeping them safe. But there is what might be described as novus actus interveniens, as the lawyers would call it, namely, an intervening act between the proper forming of that opinion and the death of these two pups. And that was the actions of the inspectors.”
“This is a negligence matter. The standard of care required, therefore, is, as described, that he should have done it. But coloured, on a test of negligence, by the fact that the experts – the inspectors – did not touch upon it at a level where the appellant formed the opinion that it was necessary to do so for the safety of his greyhounds.”
“It is a strong case against him, but the Tribunal is much persuaded by the inspectors’ actions and/or inactions in respect of the appropriate cautionary note to be given a mere short period of time before this incident took place. And the Tribunal is persuaded by the fact that he can be comforted in his belief by reason of the fact that when directed to do so, he immediately did it.”
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The plaintiff’s submission was that the negligence of the first defendant was established notwithstanding that the presence of a roll bar may not have caused the death of the two pups nor the deaths of any other pups at the first defendant’s breeding facilities.
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The question, however, is whether or not the first defendant had been negligent. This in turn, as agreed by both parties, brings into question whether a reasonable person would have acted in the same way as the first defendant.
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The inspectors had visited some eight days before the pups died. They had spoken about a roll bar and then made recommendations by way of a GWIC work direction. Under the heading of “all greyhound enclosures, housing and sleeping areas must be designed constructed and maintained in a way that is safe and provided for the wellbeing of greyhounds”, the direction provided, relevantly, “whelping box must be sealed or replaced to ensure it can be cleaned effectively.” In other words, not a word about the installation of a roll bar.
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The plaintiff submitted that the guideline then in place referred to a “crush rail” or “pig rail” designed “to stop the dam rolling over on top of a young pup and crushing it against the wall.”
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There was no dispute that the guideline was other than a recommendation. It was not a rule, regulation or other direction that had been mandated for implementation.
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There was no evidence that any pup that had been crushed on the first defendant’s premises had been crushed against the wall.
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The plaintiff submitted that it was not relevant that the guideline was no more than a recommendation and it was not relevant that no pup may have been crushed against the wall.
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In my view, absent the causation evidence and without the direction to install a rail, the first defendant was not negligent. It had been put to the first defendant that his facilities met “minimum” requirements, with which he agreed. As submitted by the first defendant, his compliance therefore met the appropriate standard, albeit on the very cusp of what was reasonably necessary.
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I should add that I do not agree with the Tribunal’s use of the intervening act as a barrier to a finding of negligence. Rather, I think that a simple approach of deciding whether the first defendant had acted according to the dictates of a reasonable person is enough to resolve the question of negligence and dictate its absence.
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Accordingly, I reject the plaintiff’s attack in respect of Charge 18.
Costs
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The plaintiff submitted that if it succeeded there should be no order as to costs. The first defendant, if he succeeded, sought an order for costs. Both parties have achieved a degree of success. I think this should be reflected in an order that each party pay its own costs of the proceedings.
Orders
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I make the following orders:
An order, pursuant to s 69 of the Supreme Court Act 1970 (NSW), in the nature of certiorari, quashing the decision of the second defendant to dismiss Charge 13 brought by the plaintiff against the first defendant.
An order, pursuant to s 60 of the Supreme Court Act 1970 (NSW), in the nature of mandamus, requiring the second defendant to dismiss the first defendant’s appeal against Charge 13 brought pursuant to s 15A(2) of the Racing Appeals Tribunal Act 1983 (NSW).
The matter is remitted in respect of Charge 13 to the second defendant to determine any penalty arising from the finding of liability in respect of this charge.
Each party is to pay its own costs of the proceedings.
I will hear the parties if any alternative costs order is sought.
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Decision last updated: 20 September 2023
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