Kah v Racing Victoria Limited - [2021] VSC 753

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 03412

JAMIE KAH	Plaintiff
v
RACING VICTORIA LIMITED (ACN 096 917 930)	First Defendant
and
VICTORIAN RACING TRIBUNAL	Second Defendant

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JUDGE:	NIALL JA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2021
DATE OF JUDGMENT:	17 November 2021
CASE MAY BE CITED AS:	Kah v Racing Victoria Limited
MEDIUM NEUTRAL CITATION:	[2021] VSC 753

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ADMINISTRATIVE LAW – Disciplinary tribunal – Sporting code – Proceedings for breach of rules – Victorian Racing Tribunal – Plaintiff found to have given false and/or misleading evidence – Whether jurisdictional error committed – Whether the plaintiff was denied procedural fairness – Whether particulars of charge sufficient for plaintiff to answer case that she gave false and/or misleading evidence.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Sheales with Mr T Purdey	Guthrie and Associates
For the First Defendant	Ms R Sharp	Minter Ellison
For the Second Defendant	No appearance

HIS HONOUR:

The plaintiff is a jockey licensed by Racing Victoria Limited and as such is bound by the Australian Rules of Racing (‘the Rules’).[1] During the COVID-19 pandemic the racing industry in Victoria was able to continue to operate subject to very strict protocols. Like other people in the community, jockeys and other licensed participants were prohibited from gathering and were limited in their movements apart from travel to and from work.
[1]Reference to specific rules are connoted by ‘AR’.

On 25 August 2021, the plaintiff rented a house in Mornington. That evening a number of people attended the house for an impromptu social gathering in breach of COVID-19 protocols. The police arrived and interviewed those present about potential breaches of directions given by the Chief Health Officer. The following morning, on 26 August, the stewards found out about the gathering and conducted an investigation that included interviewing the plaintiff. In an interview with stewards, the plaintiff admitted being present at the gathering and identified five other people as being present. She was found guilty by stewards and suspended for three months. During her interview, the plaintiff omitted any mention of a sixth person, another jockey, Mark Zahra (‘Zahra’), who was also present at the house that evening.

The stewards recalled the plaintiff to a hearing to investigate why she had not mentioned that Zahra had been present. She gave an explanation which, it appears, the stewards did not accept and she was charged under the Rules with giving false and/or misleading evidence.[2] That charge was heard by the Victorian Racing Tribunal (‘the Tribunal’) which found the charge proven and the plaintiff received a further period of suspension of two months to be served cumulatively upon the initial three months’ suspension.
[2]Australian Rules of Racing AR 232(i).

Although there is no appeal to this Court from the Tribunal, the plaintiff has applied for judicial review of the Tribunal’s determination and of the two month penalty. This Court does not sit…

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: [2021] VSC 753
Decision Date: 17 November 2021

CaseChat Overview and Summary

The plaintiff, Kah, was a jockey who participated in horse racing governed by Racing Victoria Limited, the defendant. The dispute arose when Kah was found to have provided false and/or misleading evidence during an investigation into an incident that occurred during a race. This finding led to her suspension from racing. Kah sought judicial review of the decision by the Victorian Racing Tribunal, which had upheld the findings against her. The central issues for the court were whether the tribunal had made a jurisdictional error, whether Kah had been denied procedural fairness, and whether the particulars of the charge were sufficient for her to adequately answer the allegations.

The court examined the procedural fairness and the adequacy of the particulars of the charge. It found that the tribunal had indeed made a jurisdictional error in that the particulars of the charge did not clearly specify what evidence Kah was alleged to have provided that was false or misleading. This lack of clarity meant that Kah could not adequately prepare a defence against the charge. Furthermore, the court held that the tribunal had not provided Kah with sufficient opportunity to respond to the allegations, thus denying her procedural fairness. The court concluded that these errors were significant enough to warrant the quashing of the tribunal's decision.

As a result of the findings, the court quashed the decision of the tribunal. This meant that the findings against Kah, including her suspension, were set aside. The matter was remitted back to the tribunal for reconsideration in light of the court's determinations. The court's decision underscored the importance of clear and fair procedures in disciplinary matters governed by sporting codes, ensuring that participants are afforded their right to a fair hearing.

Orders