Ings v Racing NSW

[2022] NSWSC 593

Supreme Court

New South Wales

Medium Neutral Citation:

Ings v Racing NSW [2022] NSWSC 593

Hearing dates:

2 May 2022

Date of orders:

2 May 2022

Decision date:

02 May 2022

Jurisdiction:

Common Law

Before:

Dhanji J

Decision:

(1) Until further order, there be an injunction under s 66(4) of the Supreme Court Act 1970 (NSW), restraining Racing New South Wales from acting on or otherwise carrying into effect the decision of the Racing Appeals Tribunal of 2 May 2022.

(2) Until further order, there be an injunction under s 66(4) of the Supreme Court Act 1970 (NSW), restraining Racing New South Wales from acting on or otherwise carrying into effect the decision of the Appeal Panel of Racing New South Wales of 24 March 2022.

(3) Until further order, there be an injunction under s 66(4) of the Supreme Court Act 1970 (NSW), restraining Racing New South Wales from acting on or otherwise carrying into effect the decision of the Stewards of Racing New South Wales of 16 November 2021.

(4)   Order that costs be costs in the cause.

(5)   Matter adjourned to Monday, 9 May 2022 before the Common Law Duty Judge.

(6)   Liberty granted to parties to apply on 3 hours’ notice.

Catchwords:

CIVIL PROCEDURE – notice of motion – injunction – urgent relief sought – horse trainer – disqualified for 9 months – judicial review sought – arguable case – balance of convenience favours the granting of the injunction – serious question to be tried – interim injunction granted

Legislation Cited:

Supreme Court Act1970 (NSW)

Cases Cited:

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46

Category:

Procedural rulings

Parties:

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

Representation:

Counsel:
V Heath (Plaintiff)

Solicitors:
Hammond Nguyen Turnbull (Plaintiff)
Racing New South Wales (First Defendant)

File Number(s):

2022/126638

Publication restriction:

Nil

EX TEMPORE Judgment (REVISED)

1. HIS HONOUR: In this matter, the plaintiff, Wanda Ings, seeks urgent relief with respect to a decision made today by the Racing Appeals Tribunal of NSW. The matter has come before me as Duty Judge. The hearing was conducted commencing somewhere around 7.30 this evening. As a result of the late hour, the proceedings themselves have been conducted in a somewhat truncated fashion and my reasons in relation to the decision will be relatively brief.

2. On the matter coming before me, I granted leave to file in Court and have made returnable instanter, the summons initiating proceedings brought by the plaintiff against the first defendant, that is Racing New South Wales and the second defendant, that is the Racing Appeals Tribunal of New South Wales. I made similar orders in relation to the notice of motion filed on behalf of the plaintiff, seeking injunctive relief in relation to the decision of the second defendant made today.

3. By way of very short background, the plaintiff is in the position of a horse trainer. That is the occupation that has engaged her for, it seems, her adult life, and indeed, it seems prior to that time. It is a family business also engaged in by children of the plaintiff. The plaintiff was charged with a breach of the relevant rules, the charge relating to the plaintiff’s responsibility for the stomach tubing of one of her horses at a time that was within one clear day of a point at which the horse was to race. That was alleged to be a breach of rule 255(1)(b)(ii) of the Australian Rules of Racing. The relevant rules provide a definition of a clear day which means 24 hours from 12am till 11.59pm.

4. The plaintiff pleaded guilty to the charge. The result of the commission of an offence under the particular rule, is a period of no less than 12 months disqualification. That 12 months period can, under the relevant rules, be reduced if certain circumstances apply.

5. One circumstance is where the offender is not the principal offender. It is conceded that that is not the case here. The second basis upon which the penalty might be reduced is that one or more special circumstances apply. One such special circumstance is that the offender entered an early plea of guilty and provided assistance. It was accepted that that circumstance applied. There is an issue as to whether as a result of that circumstance applying, the Appeals Tribunal was limited to a reduction in the penalty of 25% or whether the penalty became at large in the sense that the Appeals Tribunal as a result of that special circumstance, had an unfettered discretion to determine the penalty in light of all relevant matters.

6. The second basis upon which it might be found that special circumstances apply is, and I paraphrase, that the offender was acting under an impairment of mental functioning that has a causal relationship substantially reducing the offender’s culpability for the offence. It was contended before the Tribunal that that special circumstance also applied.

7. If that submission had been accepted, I understand it to be common ground that it would have been open to the Appeals Tribunal to further reduce the penalty. The Appeals Tribunal did not accept that that second special circumstance applied. While the Appeals Tribunal was satisfied that the plaintiff did have a lessening of the mind’s processes or otherwise suffered impaired mental functioning, the Appeals Tribunal found that the plaintiff failed with respect to the aspect of causation.

8. The Appeals Tribunal’s reasons at [212] refer to the expressions “causally linked” and “substantially reduces culpability” and went on to observe at [213] that neither party had sought to examine the two tests by analysis case law and so, having made that observation, the Tribunal went on, as I have already indicated, to find that the plaintiff had failed with respect to the requirement to establish a causal link between the impairment and the offending. The plaintiff’s evidence suggests that she did address the tests.

9. I should note that the Appeals Tribunal also considered the question of “substantially reduces culpability” and found that the plaintiff had similarly not satisfied that test. That failure in relation to the second aspect, “substantially reduces culpability”, is not necessarily fatal, to my mind, with respect to the significance of any error as argued with respect to the Appeals Tribunal’s decision in relation to the causal link issue. The reason I say that is that the causal link between the impairment and the failure has the potential to impact the person’s culpability. That is to say, that if the impairment is causally linked to the offending it may then follow that the person’s culpability is necessarily impacted.

10. That being the case, on the limited material before me and the very limited submissions, having regard to the hour and the urgency, I am satisfied that the plaintiff has, at least, an arguable case in relation to her application for judicial review.

11. I note that the plaintiff has indicated an intention to expand the summons to encompass issues such as a Parker warning and issues with respect to whether the Appeals Tribunal was restricted to a 25% discount on the basis of the early plea and assistance. It is not necessary at this stage to consider those issues.

12. I should also make clear that the first defendant, whilst represented before me, was in a difficult position. Mr Sweney, very helpfully and responsibly, has appeared on the application but as a result of the hour, has been limited to reviewing the documentation filed by the plaintiff on a mobile phone. He has made clear that the submissions he is able to make have, as a result been limited.

13. In those circumstances, I stress that the decision I make this evening should not be regarded as binding in relation to any further determination of a stay as this matter goes forward. Further, given those matters, I am of the view that any stay granted at this point should be for a limited period of time. In that regard, I agree with Mr Sweney’s submission, that it ought to be for something in the order of no more than one week.

14. It is, of course, necessary to consider not only whether there is an arguable case but also whether the balance of convenience favours the granting of the injunctive relief sought. In that regard, the affidavit of the plaintiff sets out the particular difficulties which she will face in the event that the disqualification comes into effect.

15. The difficulties go beyond her personally, but extend to others engaged in the racing industry reliant on her as a trainer. The particular urgency leading to the application at this late hour is the fact that the plaintiff has four horses accepted to race at Cowra tomorrow, 3 May. She has a further two triallers listed at Cowra tomorrow.

16. The consequence of the orders remaining in force would be that the horses entered to race would not be able to run and would be scratched with the consequent impact on the owners of each of those horses. Those owners are not suggested to be responsible in any way with respect to the breach in relation to which Ms Ings pleaded guilty.

17. The jockeys would also be impacted. I also accept that as a result of the manner in which the plaintiff has lived her life, such that her participation in this industry is very much at the centre of her being, it would be a significant matter for her to not be able to continue in that industry. Beyond that, there would also be a financial impact and indeed, a question as to her capacity to remain engaged in her chosen profession and life’s occupation beyond the disqualification.

18. For the above reasons, I am of the view that there is an arguable case and the balance of convenience favours the granting of the injunction. In so finding, I am satisfied that there is a serious question to be tried in the sense referred to in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46.

19. I make the following orders:

1. Until further order, there be an injunction under s 66(4) of the Supreme Court Act1970 (NSW), restraining Racing New South Wales from acting on or otherwise carrying into effect the decision of the Racing Appeals Tribunal of 2 May 2022.

2. Until further order, there be an injunction under s 66(4) of the Supreme Court Act1970 (NSW), restraining Racing New South Wales from acting on or otherwise carrying into effect the decision of the Appeal Panel of Racing New South Wales of 24 March 2022.

3. Until further order, there be an injunction under s 66(4) of the Supreme Court Act1970 (NSW), restraining Racing New South Wales from acting on or otherwise carrying into effect the decision of the Stewards of Racing New South Wales of 16 November 2021.

4. Order that costs be costs in the cause.

5. Matter adjourned to Monday, 9 May 2022 before the Common Law Duty Judge.

6. Liberty granted to parties to apply on 3 hours’ notice.

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Decision last updated: 16 May 2022