Ings v Racing New South Wales (No 2)

[2022] NSWSC 1137

Supreme Court

New South Wales

Medium Neutral Citation:

Ings v Racing New South Wales (No 2) [2022] NSWSC 1137

Hearing dates:

25 August 2022

Date of orders:

25 August 2022

Decision date:

25 August 2022

Jurisdiction:

Common Law

Before:

Basten AJ

Decision:

(1)   Noting that the interlocutory injunctions granted on 2 May 2022 and continued on 19 May 2022 have terminated with the delivery of judgment today, the Court further orders:

   (a)   Racing NSW be restrained from carrying into effect the penalty imposed by the Racing Appeals Tribunal on 2 May 2022, and

   (b)   the operation of the order dismissing the summons for judicial review be stayed,

   until 12 noon on Monday 26 September 2022.

(2)   The parties have liberty to apply on 24 hours’ notice to my associate or the duty judge.

(3)   The costs of the application for injunctive relief and a stay be costs in the further interlocutory proceedings in this Court.

Catchwords:

CIVIL PROCEDURE – post-judgment stay of orders – interlocutory injunction pending decision as to appeal – application for orders restraining defendant from acting on penalty imposed by Tribunal not set aside on appeal – if order takes effect plaintiff liable to serve penalty of disqualification with no opportunity for interim reinstatement

Legislation Cited:

Supreme Court Act 1970 (NSW), ss 66(4), 101(2)

Category:

Consequential orders

Parties:

Wanda Ings (Plaintiff)
Racing New South Wales (First Defendant)
Racing Appeals Tribunal of New South Wales
(Second Defendant)

Representation:

Counsel:
Ms V M Heath (Plaintiff)

Solicitors:
Hammond Nguyen Turnbull (Plaintiff)
Mr P T Sweney (First Defendant)

File Number(s):

2022/00126638

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Racing Appeals Tribunal

Date of Decision:

2 May 2022

Before:

Mr D B Armati

JUDGMENT

1. BASTEN AJ: Prior to delivery of judgment in the judicial review proceedings this morning, counsel for the plaintiff served a short submission and request for an order having the effect of staying the disqualification imposed by the Racing Appeals Tribunal for a period of 21 days to allow the plaintiff to obtain advice as to a possible appeal, in the event she was unsuccessful in this Court.

2. On 2 May 2022, the day on which the Racing Appeals Tribunal handed down its decision, the plaintiff approached the duty judge in the Common Law Division (Dhanji J) and obtained an injunction restraining Racing New South Wales from acting on or otherwise carrying into effect the decision of the Tribunal. Further injunctions were obtained with respect to the earlier decisions of the Appeal Panel and of the stewards. The injunctions were interlocutory, expressed to be made under s 66(4) of the Supreme Court Act 1970 (NSW), and were to take effect “until further order”.

3. On 19 May 2022, Johnson J directed that the orders made on 2 May continue until further order of the Court. Costs were to be costs in the cause and therefore are covered by the costs order made in the summons matter today.

4. The further order sought by the plaintiff today was in the following terms:

“An order under UCPR 36.4 that the judgment and orders of the court, other than this order, pronounced on 25 August 2022 not take effect and that the injunctions previously ordered under s 66(4) Supreme Court Act continue until the expiry of a period of 21 days or until further order.”

5. Although expressed as operating “until further order”, the earlier interlocutory injunctions will not continue to operate following the determination of the proceedings in which they were made, unless extended.

6. The underlying purpose of orders with respect to the earlier decisions of the stewards and the Appeal Panel was said to be that if the Tribunal decision were set aside, those orders might in some way be reinstated. That reasoning is fallacious. There is no order (and never has been an order) setting aside the decision of the Racing Appeals Tribunal. The order of the Tribunal superseded the order made by the Appeal Panel, which in turn superseded the order made by the stewards. Only the order made by the Tribunal has legal effect.

7. There are two assumptions underlying the proposed injunction (and the earlier interlocutory injunctions). The first is that there is some step which must be taken by Racing NSW to give effect to the order for disqualification made by the Tribunal. The second is that if that step were taken, and the plaintiff disqualified, this Court will have no power to reinstate the plaintiff as a trainer pending determination of any appeal from the judgment dismissing the summons. Neither assumption was explored in the course of the brief hearing today, but each step should be accepted for present purposes. Thus, a form of injunctive relief is necessary, as the plaintiff contends, in order to preserve the status quo.

8. Once orders dismissing the judicial review proceedings took effect, it would be necessary to invoke some separate jurisdiction of the Court to issue an injunction against Racing NSW. To avoid an issue in that regard I agreed to stay the operation of the orders for the period during which the injunction was in force. (An alternative course may have been to require the plaintiff to commence separate proceedings by way of summons.)

9. The case is one in which the plaintiff must act with expedition. The reason for insisting on expedition is that disciplinary matters involving a breach of the Australian Rules of Racing should be disposed of speedily in the public interest. The present case involved an early and entirely appropriate plea of guilty. The only issue outstanding was that of penalty. As the conduct in question occurred on 24 September 2021, it is now almost 12 months since the event and the plaintiff has yet to serve any penalty. However, as there is no point in bringing the parties back more than once if that can be avoided, I allowed the plaintiff until 26 September 2022 to obtain advice, decide and act on her advice.

10. The Court indicated in the course of the oral hearing that the plaintiff should act expeditiously in deciding to appeal or, if so required by s 101(2) of the Supreme Court Act, to seek leave to appeal, from the judgment and orders disposing of the summons. As the period of 28 days will expire on Thursday, 22 September, the Court expects that if an appeal is to be brought, a notice of appeal (or summons seeking leave to appeal) will have been filed by that date, and not merely a notice of intention to appeal. If that step has not been taken, the plaintiff should not assume that the injunction and stay will continue beyond 26 September.

11. Because it is not yet known whether there will be an appeal, costs of the application should be costs in the cause, the cause being the working out of the orders made by this Court in the substantive matter today. Although subsequent to the delivery of judgment, these orders are characterised as interlocutory.

12. Accordingly, the Court made the following orders:

1. Noting that the interlocutory injunctions granted on 2 May 2022 and continued on 19 May 2022 have terminated with the delivery of judgment today, the Court further orders:

1. Racing NSW be restrained from carrying into effect the penalty imposed by the Racing Appeals Tribunal on 2 May 2022, and

2. the operation of the order dismissing the summons for judicial review be stayed,

3. until 12 noon on Monday 26 September 2022.

2. The parties have liberty to apply on 24 hours’ notice to my associate or the duty judge.

3. The costs of the application for injunctive relief and a stay be costs in the further interlocutory proceedings in this Court.

**********

Decision last updated: 25 August 2022