Laming v Racing Victoria Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 00206

BETWEEN:

RICHARD LAMING	Applicant
– and –
RACING VICTORIA LTD (ACN 096 917 930)	Respondent

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JUDGE:	Cavanough J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 December 2022
DATE OF JUDGMENT:	19 December 2022 (revised from oral, ex tempore reasons and published in writing on 28 February 2023). Further revised on 6 March 2023.
CASE MAY BE CITED AS:	Laming v Racing Victoria Ltd
MEDIUM NEUTRAL CITATION:	[2022] VSC 813

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ADMINISTRATIVE LAW – Statutory interpretation – Construction of statutory provisions limiting jurisdiction and powers of Victorian Civil and Administrative Tribunal (‘VCAT’) in racing disciplinary cases – Whether VCAT failed to properly recognise and apply the statutory limitations – Whether error of law – Whether any error of law material – Whether discretionary grounds for refusal of relief – Material error of law established and no basis for discretionary refusal of relief – Appeal from VCAT allowed accordingly – Racing Act 1958 s 83OH – Civil and Administrative Tribunal Act 1998 s 51, sch 1 cl 66N.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	DP Sheales with T Purdey	Guthrie & Associates
For the Respondent	AM Dinelli SC with JC Hooper	Minter Ellison

HIS HONOUR:

Introduction: written reasons now given for orders previously made

On 19 December 2022, under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’), I granted leave to appeal from a decision of the Victorian Civil and Administrative Tribunal (‘VCAT’), allowed the appeal, set aside VCAT’s decision, remitted the matter to VCAT for re-hearing according to law and made orders as to costs. I gave oral, ex tempore, summary reasons for judgment. I foreshadowed that I would supply revised, written reasons in due course and I suspended the running of time for any appeal pending the same. These are my revised, written reasons.

The Victorian Racing Tribunal disciplines a racehorse trainer

The applicant, Mr Richard Laming, is a professional trainer of thoroughbred racehorses. He holds a trainer’s licence issued to him by the respondent, Racing Victoria Ltd (‘RVL’), under RVL’s Rules of Racing.

RVL brought three closely related disciplinary charges[1] against Mr Laming in the Victorian Racing Tribunal (‘VRT’) pursuant to RVL’s Rules of Racing and the Racing Act 1958 (as amended).[2] Each charge was of an alleged ‘serious offence’ within the meaning of certain of RVL’s Rules of Racing that relate, broadly speaking, to prohibited substances in racehorses. Mr Laming pleaded not guilty to the most serious of the three disciplinary charges and guilty to the other two. The VRT dealt with the contested charge first. After hearing evidence and submissions over two days and reserving its decision, the VRT dismissed that charge, giving detailed written reasons. Subsequently, the VRT heard submissions on the two remaining charges to which Mr Laming had pleaded guilty. In due course, on the more serious of those two charges, the VRT suspended Mr Laming’s licence to train for three months and on the other charge it fined him $1,000. It gave relatively brief written reasons for those two decisions but in doing so it incorporated by reference and brief summary the relevant aspects of the detailed reasons it had given for dismissing the contested charge.
[1]At VCAT there was controversy about the extent, if any, to which the three disciplinary charges were interrelated. That controversy has since disappeared.
[2]For the relevant legislative and quasi-legislative structure, see below, especially under the heading ‘The relevant statutory provisions and their history’.

Both parties apply to VCAT for review and VCAT increases the penalties substantially

Mr Laming applied to VCAT under s 83OH of the Racing Act 1958 for review of the decision of the VRT to suspend his licence, asserting that it was too severe. RVL cross-applied, under the same section, for review of both of the penalty orders, asserting that they were both too lenient. Ultimately, VCAT imposed substantially greater penalties on Mr Laming. Instead of the suspension, it disqualified Mr Laming, and it did so for a period of ten months. This accorded with what RVL had called for at VCAT. On the remaining charge, instead of the fine, VCAT imposed a concurrent suspension of Mr Laming’s licence for two months. Again, this was in line with what RVL had ultimately called for at VCAT.[3] VCAT published a set of orders and reasons for decision that occupies 44 pages.[4]
[3]In its written submissions at VCAT, RVL had called for the suggested two month suspension to be cumulative on the suggested 10 month disqualification; but at the final (oral) hearing RVL withdrew the claim for the penalties to be cumulative, commenting that there was sufficient overlap to warrant concurrency: see Court Book (‘CB’) 890-891, 893; compare the written (CB 876) and oral (CB 924-925) submissions made at VCAT by counsel for Mr Laming.
[4]Laming v Racing Victoria Ltd (Review & Regulation) [2022] VCAT 55 (17 January 2022).

The trainer successfully appeals on a question of law to this Court

Section 148 of the VCAT Act provides that a party may, by leave, appeal to this Court, on a question of law, from a decision of VCAT. Mr Laming now invokes s 148 in relation to the order made by VCAT in respect of penalties. His application for leave and his proposed appeal have been heard together.

Initially, Mr Laming raised many grounds of appeal and many arguments. At the final hearing, he abandoned every point but one. I considered that the point was a good one and that it required the setting aside of VCAT’s orders as to the penalties and the remitting of the matter for re-hearing and re-determination. I made orders accordingly, as indicated above.

Mr Laming’s point and RVL’s response, in summary: the issues joined

Mr Laming’s point may be summarised as follows. In 2019 an Act of the Victorian Parliament:

(a) created the VRT as a powerful, independent, expert body to hear and determine, among other things, charges of ‘serious offences’ under the Rules of Racing;

(b) provided that VCAT’s jurisdiction in relation to decisions of the VRT would be limited to questions of penalty; and

(c) further provided, by means of a new clause 66N that was inserted into Schedule 1 of the VCAT Act, that, in exercising its limited racing jurisdiction, VCAT would be ‘bound by the findings of fact that were made by’ the VRT.

In the present case, Mr Laming says, VCAT failed to comply with clause 66N. It did not appropriately recognise that it was bound by the findings of fact made by the VRT, including the relevant findings made by the VRT in relation to the most serious of the three charges, being the charge that the VRT had dismissed. This was an error of law. It was a material error because, without it, the outcome might have been different.

It is common ground that:

(a) VCAT did not expressly refer to clause 66N at all;

(b) in quoting another relevant statutory provision, namely s 83OH of the Racing Act 1958 (see above and below), VCAT omitted to reproduce a note to that provision that referred to clause 66N;

(c) VCAT did not otherwise expressly acknowledge in its reasons that it was bound by the VRT’s findings of fact;

(d) VCAT identified, as the findings of fact made by the VRT, only those findings that were expressly set out in the VRT’s relatively brief statement of reasons for the penalty decision;

(e) VCAT made no express reference to the detailed findings of fact contained in the VRT’s statement of reasons for dismissing the major charge;

(f) VCAT made factual findings of its own on matters that were already covered by the VRT’s findings of fact;

(g) VCAT made findings as to the circumstances of the offences that the VRT declined to make or (at least) did not make;

(h) VCAT rejected or doubted certain statements that had been made by Mr Laming and Ms Mercer before or at the VRT hearing, whereas the VRT had not done so.

However, RVL says that:

(a) when clause 66N is properly construed, VCAT has all of the functions of the original decision-maker (namely the VRT), save for findings of fact that were made by the VRT;[5] it follows that clause 66N only prevents VCAT from making findings of fact if those findings would be inconsistent with a ‘positive’ finding of fact by the VRT in a penalty decision that something did or did not occur;[6] it is true that such ‘positive’ findings of fact may be either express or implied;[7] but clause 66N does not prevent VCAT from making findings of fact where the VRT has failed to make a finding of fact;
[5]RVL’s substituted outline of submissions filed in this Court on 9 December 2012 (‘RVL’s 9 December 2022 outline’), [49].
[6]Ibid.
[7]Supreme Court transcript 69–70.

(b) VCAT is only bound by the ‘essential facts’ found by the VRT;[8] VCAT does not depart from the facts by which it is bound unless there is real inconsistency, or actual and irreconcilable conflict, between positive findings of fact;[9]
[8]Ibid [50], [52], [53], [55].
[9]RVL’s 9 December 2022 outline [51], [53].

(c) here, there was no real inconsistency such as to amount to a breach of clause 66N;[10]
[10]Ibid [53].

(d) although VCAT did not expressly mention clause 66N, it evidently understood that it was bound by the VRT’s findings of fact insofar as they represented the essential factual basis of the VRT’s decision;[11]

(e) further or alternatively, VCAT’s findings were consistent with, or can generally be subsumed within, the VRT’s broader findings (as to Mr Laming’s ‘haphazard’ and ‘shambolic’ stable practices); either way, any legal error made by VCAT was not a material error;[12] and

(f) further again or alternatively, Mr Laming himself invited VCAT to make its own findings of fact and, for that reason, Mr Laming should be denied relief on discretionary grounds.[13]

[11]Ibid [55].

[12]Ibid [71]; Supreme Court transcript 92–94, adopting RVL’s written submission filed in this Court on 29 June 2022 [31] and Annexure A to that written submission.

[13]RVL’s 9 December 2022 outline [62]–[70].

I disagree, at least in large part, with each element of RVL’s response to Mr Laming’s point. To explain this, it is convenient to turn first to the relevant statutory framework and history.

The statutory provisions and their history

As indicated above, clause 66N of Schedule 1 to the VCAT Act is central to this matter. However, it is desirable to consider the statutory scheme as a whole, including the major amendments that introduced clause 66N.

Clause 66N was inserted into the VCAT Act by the Racing Amendment (Integrity & Disciplinary Structures) Act 2018 (‘the RAIDS Act’). The RAIDS Act effected a substantial revision of the pre-existing integrity and disciplinary regimes governing thoroughbred racing, harness racing and greyhound racing in Victoria. It made large and important amendments to the Racing Act 1958, which came into operation, relevantly, on 1 August 2019.[14]
[14]See, generally, Douglas v Harness Racing Victoria [2021] VSCA 128, [1], [6]–[13], [19].

Before 1 August 2019 the Racing Act 1958 had a lighter touch in relation to the disciplinary governance of thoroughbred racing than it had in relation to the disciplinary governance of harness racing and greyhound racing. For example, whereas the Racing Act 1958 imposed a statutory disciplinary board on the harness racing industry to deal with internal appeals and with certain (more serious) first instance matters, and did likewise (with a separate statutory disciplinary board) in relation to greyhound racing,[15] the Act did not impose any corresponding statutory disciplinary board or tribunal on thoroughbred racing. Rather, the Act recognised that there already existed a body established by RVL itself under its (internal) Rules of Racing – RVL’s Racing Appeals and Disciplinary Board[16] - that carried out functions corresponding to the functions of the statutory disciplinary boards that existed for the two other codes. It is true that, as from 2013, the Racing Act 1958 had (by s 5G) provided that the Rules of Racing must contain certain specified provisions in relation to proceedings before RVL’s Racing Appeals and Disciplinary Board; and that s 5F of the Racing Act 1958 had provided (and still provides) for the Rules of Racing to be binding on certain (though not all) persons. However, the Act did not impose any requirements as to the composition of RVL’s Racing Appeals and Disciplinary Board. Nor did the Act confer any investigatory or like powers on that Board.
[15]The boards were designated the HRV Racing Appeals and Disciplinary Board and the GRV Racing Appeals and Disciplinary Board, respectively.
[16]See Local Rule 6A of the Rules of Racing, as amended to 1 November 2016 (published by RVL).

Under s 83OH of the Racing Act 1958 as in force prior to 1 August 2019, decisions made by RVL’s Racing Appeals and Disciplinary Board (and decisions made by the corresponding statutory boards established for harness racing and greyhound racing) could be made the subject of an application to VCAT for review. This included both decisions on guilt and decisions on penalty. Thus s 83OH served as an ‘enabling enactment’ conferring broad jurisdiction in racing matters on VCAT.

At that time, racing disciplinary cases at VCAT fell within its review jurisdiction,[17] as distinct from its original jurisdiction,[18] and they still do. VCAT’s review jurisdiction corresponds broadly with the jurisdiction of the former Administrative Appeals Tribunal of Victoria (whose jurisdiction VCAT largely inherited) and with that of the Administrative Appeals Tribunal of the Commonwealth. These days most Australian States and Territories have similar statutory bodies with similar jurisdictions. Generally speaking, these bodies carry out administrative reviews of decisions made by public or quasi-public authorities.[19]
[17]VCAT Act s 42.
[18]VCAT Act s 41.
[19]For more detail, see my judgment in McKechnie v Victorian Civil & Administrative Tribunal (‘McKechnie’) [2020] 62 VR 54, 99–100 [112]–[113].

Usually,[20] though not always,[21] VCAT and its predecessors and the other comparable bodies have been authorised by statute to carry out fresh, de novo reviews of the decisions in relation to which they have jurisdiction; and even to take into account relevant events that have occurred since the making of the decisions under review. For VCAT, that usual statutory policy is given effect, principally, by s 51 of the VCAT Act.[22]
[20]See, eg, Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 299–301 [39]–[46] (Kirby J), 315 [100] (Hayne and Heydon JJ), 327 [140] (Kiefel J); Frugtniet v Australian Securities & Investments Commission (2019) 266 CLR 250, 256–258 [14]–[15] (Kiefel CJ, Keane and Nettle JJ), 271 [51] (Bell, Gageler, Gordon and Edelman JJ).
[21]See McDonald v Guardianship & Administrative Board [1993] 1 VR 521, 529–530; Shi Migration Agents Registration Authority (2008) 235 CLR 286, 300–301 [44]–[46] (Kirby J), 315 [99] (Hayne and Heydon JJ), 327 [143]–[145] (Kiefel J); Kozanoglu v Pharmacy Board of Australia (2012) 36 VR 656, 672–676 [95]–[120]; Forbes v Vukadinovic [2018] VSCA 138, [40].
[22]See McKechnie [2020] 62 VR 54, 101–103 [115]–[119].

Until 1 August 2019, the usual statutory policy was applicable in relation to VCAT’s review jurisdiction over disciplinary decisions made in the thoroughbred racing, harness racing and greyhound racing industries in Victoria.

However, since 1 August 2019, the disciplinary regime for the three racing codes has been very different. Central to the current regime is a new, powerful, independent, expert tribunal, the VRT.

By amendments to the Rules of Racing that dovetailed with the amendments to the Racing Act 1958 made by the RAIDS Act, RVL’s Racing Appeals and Disciplinary Board went out of existence on 1 August 2019. On the same day, amendments to the Racing Act 1958 made by the RAIDS Act took effect so as to abolish the harness racing and greyhound racing disciplinary boards and to create the VRT as a single tribunal to hear, among other things, all charges of ‘serious offences’ (as defined) under all three racing codes, at first instance.[23]
[23]Racing Act 1958 (as amended), s 50A (definition of ‘serious offence’) and ss 50C(c) and 50O. The VRT also has jurisdiction to hear appeals from certain more minor disciplinary decisions made by racing officials under the rules of the respective codes: see Racing Act 1958, s 50K(a) and (b); and to hear certain other appeals and referred matters: s 50K(d), (e) and (f), s 50M.

The new provisions relating to the establishment of the VRT, its jurisdiction, its information-gathering powers, the manner in which it is to conduct hearings and the nature of its determinations, are detailed. They are contained in a substituted Part IIA of the Racing Act 1958, inserted by the RAIDS Act. It is true that a number of the provisions of the substituted Part IIA are modelled on former provisions that related to the now-abolished harness racing and greyhound racing disciplinary boards. However, as mentioned above, the Racing Act 1958 had contained few, if any, corresponding provisions applicable to thoroughbred racing. And, even by comparison with the former provisions relating to the old harness racing and greyhound racing disciplinary boards, many of the new provisions are significantly different.

For example, the former statutory requirements as to the composition and membership of the old statutory disciplinary boards were not as strict or as formal as those now in place for the VRT. The old provisions made no mention of appointments by the Governor-in-Council. The Chairperson and Deputy Chairperson, respectively, of each of the two statutory disciplinary boards were to be appointed by the Minister and were required to be lawyers of not less than seven years’ standing. The other 13 members of each of the two statutory disciplinary boards did not need to have any particular qualifications and were to be appointed by the controlling body of the relevant racing code.[24] And, as already mentioned, the Racing Act 1958 did not impose any requirements at all as to the composition of RVL’s Racing Appeals and Disciplinary Board. Nor did the Rules of Racing themselves. By contrast, all 15 membership positions on the new VRT are to be filled by persons appointed by the Governor-in-Council on the recommendation of the Minister.[25]
[24]On the other hand, membership of the respective controlling bodies of harness racing and greyhound racing was, and still is, by Governor-in-Council appointment.
[25]Racing Act 1958, s 50D(1).

Members of the VRT are appointed for fixed terms of up to three years and are eligible for re-appointment.[26] Additional security of tenure is conferred by provisions to the effect that any (involuntary) termination of the office of a member is to be done by the Governor-in-Council on the recommendation of the Minister and that the Minister may make such recommendation if satisfied that the member’s actions or behaviour are, or are likely to be, detrimental to the proper functioning of the VRT.[27] Presumably, the office of a member may not be involuntarily terminated except in those circumstances.
[26]Racing Act 1958, s 50E.
[27]Racing Act 1958, s 50F(1)(g), (2), (3).

One of the members of the VRT is to be the Chairperson; and there are to be three Deputy Chairpersons.[28] The Chairperson[29] and each Deputy Chairperson[30] of the VRT must be a person who is a former or current judicial officer. There must be[31] –
[28]Ibid.
[29]Racing Act 1958, s 50G(1).
[30]Racing Act 1958, s 50H(1).
[31]Racing Act 1958, s 50H(2).

(a) a Deputy Chairperson with knowledge and experience in greyhound racing;

(b) a Deputy Chairperson with knowledge and experience in harness racing; and

(c) a Deputy Chairperson with knowledge and experience in thoroughbred racing.

Either the Chairperson or a Deputy Chairperson (at least) must sit on every ‘serious offence’ matter.[32] A question of law arising at a hearing of the VRT must be decided by the Chairperson or a Deputy Chairperson.[33]

[32]Racing Act 1958, s 50P.

[33]Racing Act 1958, s 50X.

In addition, a majority of the 15 members of the VRT must be Australian lawyers of not less than seven years’ experience.[34] At least one member of the VRT must have animal welfare expertise or veterinary expertise.[35]
[34]Racing Act 1958, s 50D(3).
[35]Racing Act 1958, s 50D(4).

Experts may be appointed to assist the VRT.[36] By interesting contrast with clause 66N of Schedule 1 to the VCAT Act, the Racing Act 1958 provides that the VRT is ‘not bound’ by the opinion or findings of an expert.[37]
[36]Racing Act 1958, s 50R.
[37]Racing Act 1958, s 50R(4).

Members of the VRT are subject to certain obligations and restrictions designed to enhance their independence and to prevent conflicts of interest.[38] Similar requirements did apply to the former harness racing and greyhound racing boards, but not to the former Racing and Disciplinary Board of RVL.
[38]Racing Act 1958, s 50R(5).

Further, and quite importantly for present purposes, the Racing Act 1958 as now amended gives the VRT very extensive powers to investigate, gather evidence and conduct hearings.[39] No such powers were given to RVL’s Racing Appeals and Disciplinary Board by the Racing Act 1958; and only some of those powers were provided for by the Racing Act 1958 in relation to the old harness racing and greyhound racing disciplinary boards.[40]
[39]Racing Act 1958, ss 50Q, 50S, 50T, 50V, 50W, 50Y, 50Z, 50ZA, 50ZC and 50ZD.
[40]See and compare Douglas v Harness Racing Victoria [2021] VSCA 128, [13]–[14].

The investigatory, evidence-gathering and hearing powers of the VRT are supported by several offence-creating provisions dealing with contempt of the VRT and the like.[41] Again, most of these provisions are new.[42]
[41]Racing Act 1958, ss 50ZG, 50ZH, 50ZI, 50ZJ and 50ZK.
[42]Again, see and compare Douglas v Harness Racing Victoria [2021] VSCA 128, [13]–[14].

The Racing Act 1958 gives members of the VRT the same protection and immunity as judges of the Supreme Court.[43] Corresponding immunities and protections are conferred on legal representatives, parties, witnesses and experts involved in proceedings before the VRT.[44] These particular provisions had no counterparts at all in the Racing Act 1958 prior to its amendment by the RAIDS Act.
[43]Racing Act 1958, s 50ZB(1).
[44]Racing Act 1958, s 50ZB(2)-(6).

As to decision-making by the VRT, s 50ZE(1) of the Racing Act 1958 (as inserted by the RAIDS Act) provides:

Determinations of the Victorian Racing Tribunal
(1)In the determination of any matter before the Victorian Racing Tribunal, the Victorian Racing Tribunal may—
(a) decide all questions of fact; and
(b)make any decision or order that the Victorian Racing Tribunal considers is required in the interests of justice, including the imposition of any penalty under the rules.

I note in particular the reference to the Victorian Racing Tribunal having power to decide all questions of fact. It is true that that language is not new. The same wording appeared in the old provisions relating to the statutory boards for harness racing and greyhound racing. On the other hand, this language now has added potency when read in the context of other changes made by the RAIDS Act, especially the introduction of clause 66N of Schedule 1 to the VCAT Act.[45] In that respect, the new s 50ZF of the Racing Act 1958 is also worthy of note. Section 50ZF requires the VRT to give written reasons for its determinations on request. It is more demanding than the corresponding pre-amendment provisions of the Racing Act 1958 that were applicable to the old harness racing disciplinary board[46] and the old greyhound racing disciplinary board,[47] in that those provisions did not themselves require the boards to set out their findings on material questions of fact or the evidence on which the findings of fact were based, whereas s 50ZF(4) of the amended Act provides:
[45]See, generally, D Pearce, Statutory Interpretation in Australia, 9^th ed, 2019 [7.25]-[7.26], esp at [7.26], citing R v Seller [2013] NSWCCA 42, [100] and Simon v Condran (2013) 85 NSWLR 768, [26].
[46]See s 50P (now repealed) of the Racing Act 1958.
[47]See s 83OA (now repealed) of the Racing Act 1958.

50ZFVictorian Racing Tribunal to provide written statement of reasons for determination on request

…
(4) A written statement of reasons must set out –
(a)the reasons for the Victorian Racing Tribunal’s determination; and
(b)the Victorian Racing Tribunal’s findings on material questions of fact that led to the determination, referring to the evidence or other material on which those findings were based.

It is true that, pursuant to the ordinary provisions of ss 45-47 of the VCAT Act, all ‘decision-makers’ whose decisions may be made the subject of an application to VCAT for review are obliged, on timely request, to provide a statement of reasons that sets out their findings of fact and refers to the evidence etc; and it is true that those provisions were potentially applicable to all three of the old racing disciplinary boards. But ss 45-47 of the VCAT Act would likewise be applicable to the (new) VRT. The real point is that, by means of the RAIDS Act, Parliament saw fit to impose on the VRT, in addition to the requirements of ss 45-47 of the VCAT Act, the specific requirements of s 50ZF(4) of the Racing Act 1958.

In the present case, it is not clear whether either of the parties to the VRT proceeding made a request for a statement of reasons for either of the determinations made by the VRT. However, I would infer that, in providing its two written statements of reasons to the parties, the VRT was at least anticipating a request pursuant to s 50ZF of the Racing Act 1958 or a request pursuant to ss 45-47 of the VCAT Act and that it was endeavouring to comply with the requirements, as to substance and form, of those provisions. Consequently, I would infer that, in combination, the VRT’s two statements of reasons contain all of its findings on what it considered to be the ‘material questions of fact that led to the determination’; and that those statements between them also refer to the ‘evidence or other material on which those findings were based’, within the meaning and for the purposes of s 50ZF(4) of the Racing Act 1958.[48]
[48]See and compare Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, esp at 331-332, [9]-[10] (Gleeson CJ), 345-346, [67]-[69] (McHugh, Gummow and Hayne JJ).

Turning to the matter of administrative review of decisions of the VRT, I note that the RAIDS Act substituted new provisions for the old ‘enabling’ provisions of s 83OH of the Racing Act 1958.[49] No longer does s 83OH provide for applications to VCAT for review of decisions on guilt in racing cases. Under the new regime, there is no provision at all for administrative review of the decisions of the VRT on guilt. Relevantly,[50] as Mr Laming points out, VCAT’s racing jurisdiction is now confined to the hearing of applications for the review of decisions on penalty that have been made by the VRT (after either a contested hearing or a plea of guilty). In its new form, s 83OH provides:
[49]See Part IIIBA of the Racing Act 1958, as now amended, containing the substituted s 83OH and the pre-existing s 83O1.
[50]In addition, Part IIIC of the Racing Act 1958 continues to provide for review by VCAT of certain occupational licensing decisions in the field of racing.

83OH Review by VCAT of decisions of the Victorian Racing Tribunal
(1)A person whose interests are affected by a decision made by the Victorian Racing Tribunal may apply to VCAT for review of that decision in relation to a penalty imposed on the person by the Victorian Racing Tribunal.
(2)A Steward may apply to VCAT for review of a decision made by the Victorian Racing Tribunal in relation to a penalty imposed by the Victorian Racing Tribunal.

Note: See clause 66N of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998.

This brings me back at last to clause 66N of Schedule 1 to the VCAT Act (which, as can be seen immediately above, is referred to in a note to the new s 83OH of the Racing Act 1958).[51] For convenience, I set out clause 66N again:
[51]This is the note that VCAT omitted to reproduce when it quoted s 83OH in its reasons for decision: [2022] VCAT 55 [10].

66NTribunal bound by findings of fact made by Victorian Racing Tribunal
Despite section 51, in determining a proceeding for review of a decision of the Victorian Racing Tribunal under section 83OH of the Racing Act 1958 in relation to a penalty imposed by the Victorian Racing Tribunal, the Tribunal is bound by the findings of fact that were made by the Victorian Racing Tribunal.

As was pointed out in Mr Laming’s written submissions in this Court,[52] when the Bill for the RAIDS Act was read in the Legislative Assembly for the second time,[53] the Minister for Racing said:

The Bill will also establish a new and fully independent tri-code Victorian Racing Tribunal (VRT). There will be no right of appeal to VCAT for a merits review or on a point of law. A limited right of appeal to VCAT on rulings related to penalty and occupational licensing decisions will be retained. Appeals on questions of law will be heard by the Supreme Court.[54]

[52]Mr Laming’s substituted written submissions filed 2 November 2022 [62].

[53]Parliament of Victoria, Parliamentary Debates (Hansard), Legislative Assembly, 20^th June 2018 at 2091–2094.

[54]Ibid 2092.

Similarly, as was also pointed out in Mr Laming’s written submissions,[55] the Minister for Racing, when making, in the Legislative Assembly, the Statement of Compatibility of the RAIDS Bill in accordance with s 28 of the Charter of Human Rights and Responsibilities Act 2006,[56] said:

The right to a fair hearing is engaged in relation to the proposed amendment to the rights of appeal to VCAT. Clause 23 of the Bill limits the right of appeal to VCAT from decisions of the VRT in relation to penalty. In effect, the Bill proposes to repeal the right to a merits review of a decision made by the VRT set out in s 83OH of the Racing Act. Narrowing the rights of appeal to VCAT is proposed for the purposes of ensuring that matters are heard by a specialised racing tribunal equipped with robust powers.
Whilst this may limit a person’s right to a fair hearing, the limitation is mitigated by amendments which ensure that the VRT is a robust and independent tribunal pursuant to s 50C of the Bill.[57]

[55]Mr Laming’s substituted written submissions filed 2 November 2022 [63].

[56]Parliament of Victoria, Parliamentary Debates (Hansard), Legislative Assembly, 20^th June 2018 at 2087–2091.

[57]Ibid 2090.

Plainly, Parliament intended that VCAT’s jurisdiction in racing disciplinary cases is now to be a strictly limited one; and that, so far as fact-finding in the course of exercising that jurisdiction is concerned, any role for VCAT is subject to that of the highly qualified, independent, powerful, expert tribunal established by the RAIDS Act, namely the VRT.

The proper construction of clause 66N

In the light of the statutory framework and history set out above, RVL’s submissions about the proper construction of clause 66N, which are summarised in sub-paragraphs (a) and (b) of [9] above, cannot be accepted. They are out of harmony with the text, context (including legislative history) and evident purpose of that provision. Hence they are out of harmony with the applicable general principles of statutory construction, which are well known.[58]
[58]See my judgment in Mornington Peninsula Beach Box Association Inc & Anor v Mornington Peninsula Shire Council [2021] VSC 455, [48] and the cases there cited.

As to RVL’s submission summarised in [9(a)] above, there is nothing in the text, context or evident purpose of clause 66N to confine it to ‘positive’ findings of fact by the VRT, ie to confine it to findings in a penalty decision by the VRT that ‘something did or did not occur’. That would involve an impermissible reading down of clause 66N, when every indication from the text, context, evident purpose and legislative history of the clause tends in the opposite direction.

RVL’s construction would lead to a plainly unintended result. A penalty decision of the VRT might arise from a case where some facts alleged by RVL or its stewards are simply not found proved. That could be so whether the accused person pleads guilty or not guilty to the disciplinary charge in question. The racing disciplinary jurisdiction is basically adversarial in nature, both at VRT level and at VCAT level (unlike some other parts of VCAT’s jurisdiction). A racing tribunal needs to be ‘comfortably satisfied’ of the facts in issue, before the tribunal can find such facts against the accused person.[59] So it may well be open to the VRT in a particular case, even where the VRT is satisfied that the elements of the relevant disciplinary offence are made out and that the person accused should be found guilty, to determine that a certain fact or set of facts alleged by RVL or its stewards had not been established to the VRT’s comfortable satisfaction. In my view, such a determination would amount to a finding of fact that was ‘made by’ the VRT within the meaning of clause 66N. Given the statutory status of the VRT as a powerful, independent expert tribunal whose findings of fact are to be binding and final, it would be far too narrow a reading of clause 66N to say that such a determination does not amount to a finding of fact made by the VRT within the meaning of that clause. Hence the determination would bind VCAT. This demonstrates that a finding by the VRT may bind VCAT even if it is not a ‘positive’ finding, ie even if it is not a finding that ‘something did or did not occur’.
[59]Karakatsanis v Racing Victoria Ltd (2013) 306 ALR 125, 137 [35]–[40] (Osborn JA with whom Beach JA agreed).

Further, it seems to me that, subject to any applicable principles of administrative law, the VRT is to have an exclusive role, and the final say, not only in relation to identifying those alleged facts of which it is or is not comfortably satisfied, but also in relation to the question whether any alleged fact or set of facts is worth investigating or considering at all. In my view, subject to any issue of legal unreasonableness or the like, it may be open to the VRT in a particular case to determine that an allegation, or set of allegations, made by either RVL or the accused person is not sufficiently relevant or significant to warrant investigation or consideration. Again, for reasons similar to those expressed above, I consider that such a determination would be protected by clause 66N.

As will appear in more detail in due course, in the present case RVL made a set of allegations against Mr Laming at the VRT[60] that the VRT either rejected, or was not comfortably satisfied about, or considered unworthy of examination or consideration in its reasons. By contrast, as will also appear in due course, VCAT did examine this set of allegations and went on to find them established as against Mr Laming. In my opinion, contrary to RVL’s submissions summarised in [9(a)], this involved legal error on VCAT’s part.
[60]Defined below as ‘the wrong-box scenario’.

RVL’s remaining submissions as to the proper construction of clause 66N are summarised in [9(b)] above. RVL says, in short, that VCAT is only bound by the ‘essential facts’ found by VCAT; and that VCAT does not depart from the facts by which it is bound unless there is real inconsistency, or actual and irreconcilable conflict, between ‘positive’ findings of fact.

In my view, this construction would involve an even more substantial, and even more unacceptable, reading down of clause 66N. RVL advances no textual basis for it. Again, it is an argument that runs counter to the general tenor of the RAIDS Act as discussed above, but this time to an even greater extent. Tellingly, RVL does not cite any case pertaining to the Racing Act 1958 in its post-RAIDS Act form in support of this part of its argument.

Insofar as RVL contends that VCAT is only bound by the ‘essential facts’ found by the VRT, RVL seeks to draw an analogy with a line of cases, mainly federal, that relate principally to the question of the extent to which, or the circumstances in which, a person convicted by a court of a crime and subjected to a penalty may, for the purpose of dealing with subsequent administrative action – such as the making of a criminal deportation order or the refusal of some statutory benefit, licence or permit, being administrative action based on the conviction or penalty – go behind the conviction or penalty and challenge findings of fact that were made by the court.[61]
[61]RVL’s 9 December 2022 outline [50]–[54] and cases there cited.

RVL refers first to the most recent of the cases in this line on which it relies, namely Secretary to the Department of Justice & Regulation v LLF (a pseudonym)[62] in which all of the other cases on which RVL relies are cited.[63] That was an appeal from a decision of VCAT where the Secretary submitted that VCAT had gone behind the relevant convictions of the respondent in determining that the respondent should be granted a Working with Children Permit. In LLF the Court of Appeal said:[64]

42The parties were agreed as to the applicable legal principles. The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal’s jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself.[65] In the latter case, the essential facts underlying the conviction are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.[66]
43...
44The question for decision is therefore whether the Tribunal made findings that were inconsistent with the essential factual basis of LLF’s convictions.

[62][2018] VSCA 155.

[63]Ibid [42] (footnote 25).

[64]Ibid [42]–[44].

[65]Here the Court of Appeal refers to the previous cases on which RVL presently relies.

[66]The Court of Appeal here cited additional cases.

I note that there was no dispute between the parties in LLF as to the applicable legal principles. I note also that in several of the earlier, federal cases the Court identified and criticised deviations by the administrative body from the findings that had been made by the criminal court. Sometimes this was done in rather absolute language, without the comparison being limited to merely the ‘essential facts’ or the ‘essential factual basis’ of the criminal court’s decision. Thus, in a deportation case, Minister for Immigration & Ethnic Affairs v Gungor,[67] Fox J said:

… If there cannot be a direct challenge to a conviction, there cannot be an attack on the findings which support it. If a Deputy President of the Tribunal finds and recommends on facts inconsistent with facts upon which a jury must have based its verdict there is in my view a challenge to the conviction.

…
It is in my view an error of law for the Tribunal to proceed to its conclusion on the basis of facts inconsistent with the conviction and that, as it seems to me, is what has happened in the present case.

[67](1982) 63 FLR 441, 449–450.

Similarly, in Minister for Immigration & Multicultural Affairs v SRT:[68]

… it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. The starting point for consideration by the Tribunal in relation to sentence, when concerned with the question of an order under s 200 of the Act, must be the findings made by the judge in imposing the sentence that satisfies the statutory description of a sentence of imprisonment for a period of not less than one year.

[68](1999) 91 FCR 234, 244 [40] (my emphasis). See also at [41]–[42] and [46]–[48]; cf at [48] (‘essential factual findings’).

Returning to Gungor, I note that RVL relies on the judgment of Sheppard J, as a member of the Full Court, rather than the judgment of Fox J, from whose judgment I have just quoted. Fisher J was the third member of the Court. His Honour agreed with the common conclusion reached by the other two judges and agreed ‘generally’ with their respective reasons.[69] By reference to the judgment of Sheppard J in Gungor, RVL submits that VCAT ‘remains entitled, indeed bound, to examine for itself what was involved in the entirety of the conduct of the applicant before it. This examination will include the receiving of evidence to put the Tribunal in a position to weigh and to make its own assessment of the seriousness of the conduct which has led to the conviction.’[70] RVL also submits, again by reference to the judgment of Sheppard J in Gungor, that VCAT was entitled in the present case to make the findings of fact it made (including the particular findings of fact complained of by Mr Laming) on the evidence before it, including by drawing inferences from circumstantial evidence, as long as the findings in question did not in truth go behind the essential facts of the VRT’s decisions. However, I would not read the judgment of Sheppard J in Gungor as going so far. His Honour came to the same conclusion as Fox J and Fisher J, namely that the AAT had erred in law by departing from the view of the facts necessarily adopted by the jury in reaching its verdict at the trial of Mr Gungor, ie that Mr Gungor was guilty of the actual supply of drugs, whereas the AAT had later concluded that Mr Gungor had merely aided and abetted another person to supply drugs. Immediately after expressing that conclusion, Sheppard J made the remarks on which RVL mainly relies. Though the remarks are somewhat lengthy, it is desirable to set them out in full:[71]

I do not believe that such a conclusion is greatly restrictive of the Tribunal’s difficult and important function in deportation cases. If the view I have proposed prevails, the Tribunal remains entitled, indeed bound, to examine for itself what was involved in the entirety of the conduct of the applicant before it. This examination will include the receiving of evidence to put the Tribunal in a position to weigh and to make its own assessment of the seriousness of the conduct which has led to the conviction. Nevertheless, I concede that the view I favour may in some cases have an inhibiting effect on the Tribunal. It may also create a degree of difficulty for it because it will need to determine whether particular evidence sheds light on the way conduct on the part of an applicant for review should properly be viewed or whether its real effect, if accepted, would be to go behind the conviction. It will be necessary for the Tribunal to be aware at all times of the purpose for which it receives (or has received) the evidence and for which it uses the evidence. If the evidence in question is in truth evidence which involves the applicant in seeking to go behind the conviction or to have the conviction set at nought, it ought to be put aside; otherwise it will need to be weighed along with all other evidence for the purpose of deciding whether to remit the matter to the Minister for reconsideration in accordance with the Tribunal’s recommendation.

[69]Gungor (1982) 63 FLR 441, 450.

[70]Citing Gungor at 469 (Sheppard J). See RVL’s 9 December 2022 outline [50].

[71]Gungor (1982) 63 FLR 441, 469.

Sheppard J does not say in this passage, or elsewhere in his judgment, that the only limitation on the AAT is that it not go behind the ‘essential facts’ of the criminal court’s decision. Further, His Honour envisaged only a limited purpose for which the AAT could receive and examine evidence relating to the conduct of the applicant.

In any event, it seems to me that the reason why, in this line of cases, reference is made to the ‘essential facts’ or to the ‘essential factual basis’ for the conviction is because the courts were not dealing with clear statutory words, but rather were seeking to apply a common law principle that the outcome of a criminal proceeding is to be respected in any civil proceeding to which that outcome may be relevant. This represented a compromise between that principle and the apparently unfettered relevant powers of the administrators. The cases on which RVL relies deal with the relationship between a decision in a criminal proceeding, on the one hand, and, on the other hand, a wholly separate administrative process (of some kind or another) that may take place at a distant point of time. The position of VCAT in a review under s 83OH of the Racing Act 1958 is very different. The line of cases on which RVL relies does not deal with the interpretation of any statutory provision comparable with clause 66N. The cases in that line do not deal with a single statutory structure for dealing with a particular matter, of the kind set up by the Racing Act 1958, as amended by the RAIDS Act, being a structure in which one decision-making body within the structure is ‘bound by’ the findings of fact made by another decision making body within that same structure. In the present situation, the constraint on VCAT is imposed expressly, and comprehensively. There is really nothing in the cases relied on by RVL that bears on the proper interpretation of clause 66N.

Going back to the tenor of RVL’s submissions about the construction of clause 66N summarised in [9(b)] above, I consider that there are two further, complete answers to those submissions.

First, RVL’s submissions in this regard continue to be premised on the proposition that VCAT is only bound by the VRT’s ‘positive’ findings of fact. For the reasons mentioned above in dealing with RVL’s [9(a)] submissions, that premise fails.

Secondly, in my view, and most importantly, it is inherent in clause 66N that VCAT has no power to embark on its own fact-finding exercise in a review under s 83OH of the Racing Act 1958, at least in relation to matters already covered by the findings of fact made by the VRT. To say, as clause 66N does, that VCAT is ‘bound by’ the findings of fact made by the VRT is necessarily to say that VCAT has no fact-finding role in relation to the matters on which the VRT has already made findings of fact. This must be so whether or not clause 66N also protects VRT findings of the ‘not comfortably satisfied’ type or the ‘not worth investigating’ type. If VCAT fails to recognise that it must keep away from the area covered by the findings of fact already made by the VRT, and if VCAT proceeds to embark on an examination of the evidentiary material underlying the factual findings made by the VRT, or if, for that matter, VCAT purports to admit in evidence and examine fresh material going to the matters on which the VRT has already made findings of fact, then VCAT plainly errs in law. There is an analogy here with the general legal principle that delegated or subordinate legislation must not purport to repeat or paraphrase provisions of superior legislation.[72]
[72]See Barnes v City of Coburg [1928] VLR 334, discussed in DC Pearce and S Argument, Delegated Legislation in Australia, 5^th Edition, 2017 [19.18].

As will further appear, VCAT did err in law in the present case by embarking on its own fact-finding exercise in respect of matters already covered by the VRT’s findings of fact.

If VCAT may not validly embark on such a fact-finding exercise of its own, then error of law will remain even if, in a particular case, there be no inconsistency (of any kind) between the findings of fact made by VCAT and the findings of fact (however defined) made by the VRT. Whether, in the particular case, the error of law was material may be another question.

For these several reasons, the submissions of RVL summarised in [9(b)] above cannot be accepted.

In the very recent decision of Greyhound Racing Victoria Stewards v Divirgilio (Review & Regulation),[73] VCAT (constituted by Mr R Tang AM Member) said, at [46] (footnotes omitted):

46.Pleasingly, there is broad consensus between the parties regarding the principles to be applied. They both submit that VCAT:
·is bound by ‘express’ or ‘positive’ findings of fact which have been made by the VRT;
·is also bound by findings which can be inferred, although Mr Divirgilio slightly qualifies this by suggesting that VCAT is bound by those findings that are ‘necessarily inferred’; and
·may make further findings of fact unless those findings are ‘inconsistent’ with, or ‘contradict’ the VRT’s express and inferred findings. Mr Divirgilio goes slightly further and suggests that VCAT should not make further findings that ‘qualify’ the VRT’s express and inferred findings.

[73][2022] VCAT 1395 (7 December 2022).

Plainly, some of the observations contained in paragraph 46 of Divirgilio are incompatible with what I have said above and with what I will say below. To that extent, in my respectful opinion, VCAT should not follow [46] of Divirgilio.

Rather, VCAT should treat the relevant findings of fact made by the VRT as a fixed starting point and framework for VCAT’s remaining deliberations on penalty. Consistently with this, in Bellman v Harness Racing Victoria (Review & Regulation)[74] VCAT (constituted by Senior Member Smithers) said:

Given that VCAT is bound by the findings of fact made by the VRT, and because its decision of 17 August 2021 sets out information relevant to this matter in a convenient form, it is appropriate to set out the VRT’s decision in full…

[74][2022] VCAT 249 (3 March 2022).

In Bellman, Senior Member Smithers proceeded to do just that. In my view, it may assist VCAT to avoid legal error of the kind made in the present case if in future it follows the lead set by Senior Member Smithers in Bellman, at least by extracting from the reasons of the VRT every finding of fact of possible relevance to the application for review on penalty. That is because, as Senior Member Smithers correctly observed in Bellman:[75]

The role of [VCAT] is to make the correct or preferable decision on penalty based on the findings of the VRT.

[75]Ibid [10] (my emphasis). See also Divirgilio (2022) VCAT 1395, [13].

I note in passing that it may be arguable that Parliament intended that the VRT’s findings of fact should in every case ‘cover the field’ of relevant findings of fact, at least in relation to events occurring and circumstances existing in the period up to the time of the VRT’s decision.[76] If that were so, then VCAT would be unable to make any findings of fact additional to the findings of fact that were made by the VRT, at least as to matters that occurred, or were in existence, as at the time of the VRT’s decision, such as the circumstances of the relevant offence or offences. Such a reading might be available on the text of clause 66N, and would arguably gain some support from the statutory context, purpose and history of clause 66N referred to above. However, I need not and do not express any concluded view as to whether the legislation goes that far.
[76]There may be an analogy here with the well known ‘covering the field’ test for inconsistency as between pieces of legislation: see, generally, DC Pearce and S Argument, Delegated Legislation in Australia, 5^th Edition, 2017, ch 19, esp [19.23].

That deals with the issues of statutory construction between the parties. It leaves aside RVL’s points summarised above as sub-paragraphs (c), (d), (e) and (f) of [9]. Those points are all directed to what VCAT in fact did in the present case. Each of them is better considered with a fuller understanding of the course of the proceedings at the VRT and at VCAT. I will turn first to the VRT proceeding.

The VRT proceeding relating to Mr Laming in more detail

As mentioned above, RVL’s stewards laid three charges against Mr Laming in the VRT, each alleging a ‘serious offence’ in breach of the Rules of Racing of RVL. The charges were laid on 20 December 2019.[77] Each charge related, directly or indirectly, to the fact that a horse called Iam Ekstraordinary trained by Mr Laming was found to have an above-threshold level of a prohibited substance, cobalt, in its system when it ran in a race at Ballarat on 23 May 2018. The main question was: how had that happened?
[77]CB 324–327.

RVL’s stewards had commenced their inquiry into the matter about 18 months earlier, in June 2018. Over the ensuing period they had conducted interviews (in some cases more than one interview) with Mr Laming, his stable foreman Mr Potgeiter and his then stable hand, Ms Amy Mercer,[78] and the stewards had also obtained reports from relevant experts. At that stage, Mr Laming’s position was, in general terms, that there was no known explanation for the elevated cobalt reading.
[78]‘Amy’ is short for ‘Amoriah’. Ms Mercer later reverted to her mother’s maiden name of Jackson: see transcript of steward’s interview dated 14 August 2020: CB 359–387. Hence in some of the documents in the court book she is referred to as Amoriah Jackson. However, most often she is referred to as Amy Mercer and I will continue to use that name.

The charges that were laid against Mr Laming in December 2019, and his pleas, may be summarised as follows:

(a) Charge 1 was, in substance, a charge that, contrary to a certain Rule of Racing, Mr Laming had administered, or caused to be administered, a prohibited substance, namely cobalt, to Iam Ekstraordinary, and that cobalt in excess of the prescribed maximum had been detected in a sample taken from the horse prior to the running of the race at Ballarat on 23 May 2018. While Mr Laming accepted that excess cobalt had been duly detected in the sample taken from Iam Ekstraordinary on the day in question, he pleaded not guilty to this charge.

(b) Charge 2 was expressed to be laid as an alternative to charge 1. In substance, it alleged that, contrary to another Rule of Racing which creates a ‘strict liability’– type offence, Mr Laming had presented Iam Ekstraordinary at the race meeting on 23 May 2018 with a prohibited substance (namely cobalt in excess of the prescribed maximum) in its system. Mr Laming pleaded guilty to this charge.

(c) Charge 3 was also a related charge. It alleged that, in contravention of yet another Rule of Racing, Mr Laming had failed to record treatments that had been administered to Iam Ekstraordinary in May 2018. Again, Mr Laming pleaded guilty to this charge.

By agreement, the VRT was to hear and determine charge 1 before dealing with charges 2 and 3.

The first substantive hearing in the VRT was scheduled to commence on Monday 17 August 2020. However, about a month earlier, on 10 July 2020, Mr Laming’s solicitors wrote to RVL saying that Mr Laming’s position had changed. His new position, as expressed in the letter, was that Amy Mercer had mistakenly and without authority administered a vitamin injection containing cobalt to Iam Ekstraordinary on the morning of 23 May 2018, being the day that it was due to race at Ballarat.[79] That letter in turn led to the stewards re-interviewing Ms Mercer on Friday 14 August 2020 (the last working day before the scheduled hearing). By then, and for about the previous 12 months, Ms Mercer had ceased to be employed by Mr Laming. During the interview, Ms Mercer speculated that she might have made a mistake, of one kind or another, and that, as a result she might have given Iam Ekstraordinary its usual vitamin injection (containing cobalt) on a day on which she ought not to have administered it, namely on race day; and that this might be the explanation for the elevated reading.[80]
[79]See transcript of opening oral submissions at the VRT by counsel for RVL, at CB 206.
[80]CB 350-378, esp at 374-375.

When the hearing at the VRT began on Monday 17 August 2020, counsel for RVL described the letter from Mr Laming’s solicitor of 10 July 2020 as containing a ‘concession’, being a concession that was consistent with RVL’s expert evidence; and he said that, as a result of the re-interview with Amy Mercer, RVL accepted ‘the position that Amy Mercer mistakenly administered the weekly vitamins’.[81]
[81]CB 206.

On the other hand, RVL’s counsel, in his opening, also told the VRT that RVL did not accept that the vitamins were administered ‘without authorisation’.[82] RVL’s case on charge 1 was that Mr Laming had, in effect, caused the prohibited substance to be administered. As the hearing proceeded (on 17 and 18 August 2020), it became apparent that, in an endeavour to support its case, RVL was seeking to rely on certain observations made by McLeish JA and, separately, by me in Racing Victoria Ltd v Kavanagh,[83] and, in particular, that RVL was contending that Mr Laming had ‘caused’ the administration of the cobalt by gross negligence or extreme carelessness in the way in which he had conducted his stables and supervised (or failed to supervise) his staff. RVL contended that the situation met a test (for ‘causing’) of ‘authority’ or ‘direction’ said to be derivable from Kavanagh. It was accepted by RVL that Mr Laming had not himself administered the vitamin injection and that he had not actually directed or requested anyone else to administer it to Iam Ekstraordinary at an inappropriate time.
[82]Ibid.
[83][2017] VSCA 334, [126] (McLeish JA), [152] (Cavanough AJA).

Unsurprisingly, then, RVL proceeded on the basis that it was vital to its prospects of success on charge 1 to identify and prove particular features, instances or examples of gross negligence or extreme carelessness on the part of Mr Laming and to seek to relate those features, instances or examples, causally, to the elevated cobalt level in Iam Ekstraordinary on 23 May 2018.[84] Later, after charge 1 was dismissed, RVL sought to rely on the same alleged factual picture in order to support its call for substantial penalties on Mr Laming on charges 2 and 3, on the asserted basis that the alleged circumstances of gross negligence or extreme carelessness made the commission of those offences particularly blameworthy (notwithstanding that they were ‘strict liability’-type offences).
[84]This is demonstrated by the transcript of the VRT hearing (CB 205–327) and by the VRT’s two abovementioned sets of reasons for decision.

While some other alleged features, instances or examples of gross negligence or extreme carelessness were sought to be relied upon by RVL at the VRT at both stages of the hearing, one matter was singled out by RVL for particular emphasis. Seizing on things that Amy Mercer had said when she was re-interviewed by the stewards on 14 August 2020 and on things she said in evidence before the VRT, and seizing also on things that Mr Laming said in his evidence before the VRT – particularly when he was questioned about what Ms Mercer had said – RVL directed a significant amount of cross-examination, and extensive submissions, to the following set of propositions (‘the wrong-box scenario’):

(a) that Amy Mercer had mistakenly administered a vitamin injection containing cobalt to Iam Ekstraordinary on race day morning;

(b) that the mistake made by Amy Mercer resulted from Iam Ekstraordinary having been placed in the wrong horse-box on or before race day;

(c) that Amy Mercer had made a corresponding mistake about three months earlier, ie in or about February 2018, whereby she had unintentionally injected another horse on a day when it should not have been injected, after the horse had been placed in the wrong box;

(d) that the earlier mistake had been drawn to Mr Laming’s attention;

(e) that, as a result, Mr Laming actually and specifically ‘contemplated’ that the same thing could happen again;

(f) that, nevertheless, Mr Laming did nothing to avert a mistake of that particular kind.

Counsel for RVL told the VRT that the wrong-box scenario was ‘critical’ to RVL’s case on charge 1.[85] As will be seen, RVL repeated its reliance on the wrong-box scenario, with similar emphasis, in its later submissions to the VRT on penalty in relation to charges 2 and 3; and then again at VCAT.

[85]CB 284–285.

It seems to me that the VRT, understandably, was not much moved by RVL’s ‘wrong-box’ scenario. I note that the horse involved on the prior occasion was not named or otherwise identified in the evidence; that the matter was only mentioned belatedly and in non-specific terms by Ms Mercer; that Ms Mercer made uncontradicted statements to the stewards on 14 August 2020 that the horse was a ‘pre-trainer’ and that the matter was a ‘non-event’;[86] that Mr Laming gave uncontradicted evidence to VRT that that horse was not due to race on the day in question;[87] that Mr Laming had commented during his evidence that the matter seemed to him to be of no significance to the matter of Iam Ekstraordinary;[88] that the ‘wrong-box incident’ was not reported to the stewards at the time; and that it did not lead to any action on the part of the stewards even after they became aware of it. Consistently with this, it seems that the VRT proceeded on the basis that the wrong-box incident had not involved any breach of the Rules of Racing.[89] It also seems that the VRT was correct to adopt the view that no breach of the Rules of Racing was involved.[90]
[86]CB 363. See also Laming v Racing Victoria Ltd (Review and Regulation) [2022] VCAT 55, [22].
[87]CB 231.
[88]Ibid.
[89]Contrast the VRT’s approach with the approach later taken by VCAT: see below.
[90]RVL has not submitted in terms at any stage of this case that the wrong-box incident involved a breach of the Rules of Racing. This now appears to be common ground.

When, in its written reasons for decision on charge 1 that were published on 7 October 2020, the VRT came to summarise RVL’s submissions, it did refer to submissions about an alleged ‘error’ or ‘mistake’ that had occurred ‘only three months earlier’.[91] But this was described as a ‘race day treatment or administration error’;[92] and as a ‘race day mistake’.[93] As mentioned above, the wrong-box incident was not a race day incident; and, it seems to be clear that no breach of the Rules of Racing had been involved. In the VRT’s summary of RVL’s submissions, the VRT did also refer to a contention by RVL that Mr Laming had admitted in evidence that he ‘contemplated it could happen again’. However, it seems to me that what the VRT had in mind, or had principally in mind, in this regard, was a different incident within the stable that, confusingly, had also happened about three months prior to the Ballarat race of 23 May 2018, ie in or about February 2018. That incident is referred to in other parts of the VRT’s reasons as ‘the nebulizer incident’. It involved a racehorse called Patient being treated for a respiratory complaint on race morning by inhalation of an antibiotic by means of a nebulizer. It involved an accidental mistake, albeit a mistake made, apparently, by a casual employee of the Laming stable, as distinct from Amy Mercer.[94] Unlike the wrong-box incident, the Patient incident involved the treatment of a horse that was in full training and was due to race later the same day. Moreover, the stewards had attended the Laming stables that morning, had detected the nebulizer treatment, had caused Patient to be scratched from its engagement and had soon after charged with Mr Laming with an applicable offence under the Rules of Racing.[95]
[91]CB 195.
[92]Ibid. My emphasis.
[93]CB 196. My emphasis.
[94]CB 247.
[95]CB 194.

In the present case, the VRT seemed to be troubled by only one prior incident from 2018, and that was the nebulizer incident. The references in the VRT’s reasons to what had happened in the recent past that should have served as a warning to Mr Laming are references in the singular, not the plural. Thus, in summarising RVL’s submissions, the VRT’s reasons contain the following passages (my emphasis):[96]
[96]CB 195–198.

There had been a race day treatment or administration error only three months earlier. Effectively nothing of significance was done following it…
There had been the earlier incident three months previously, which had been a race day mistake. [Mr Laming’s] evidence was that he contemplated it could happen again…
A trainer in Mr Laming’s position, and particularly given the earlier mistake, must guard adequately against a lack of care on the part of stable employees in relation to treatment of horses.
…
…the Tribunal should find that Mr Laming caused the administration of the vitamin treatment on race day, particularly bearing in mind the earlier race day administration mistake and [Mr Laming’s] lack of supervision thereafter…
… [Mr Laming] failed to provide satisfactory supervision, even after the earlier mistake.
… Mr Laming should have made enquiries of Ms Mercer, particularly given the earlier mistake.

Likewise, under the heading ‘The findings of fact’, the VRT said:
Iam Ekstraordinary was to run at Ballarat on Wednesday 23 May 2018. Approximately three months earlier, the stable had been involved with the Stewards in relation to the use of a nebuliser on a horse on race day. Thus, Mr Laming, Mr Potgieter and Ms Mercer should have been on full alert as to the importance of ensuring that treatment was not given immediately before or on race day.

There is, also, a second reference to ‘the nebulizer incident’ in this section of the VRT’s reasons.

However, there is no reference under ‘The findings of fact’ to the wrong-box incident or to the (larger) wrong-box scenario. Nor is that matter otherwise referred to in the VRT’s statement of reasons for decision on charge 1, save to the extent, if any, that it may be encompassed in the VRT’s summary of RVL’s submissions. Thus, contrary to what RVL was urging, the VRT’s reasons for decision on charge 1 contain:

(a) no finding that Iam Ekstraordinary was placed in the wrong box;

(b) no finding that Amy Mercer had made a corresponding mistake in or about February 2018 or at all;

(c) no finding that any wrong-box incident that may have happened in or about February 2018 had been drawn to Mr Laming’s attention;

(d) no finding that Mr Laming had actually and specifically ‘contemplated’ that the same mistake might be made again; and

(e) no finding that, despite such contemplation, Mr Laming had done nothing to avert such a mistake.

Nor (as will be seen) was any such finding included in the VRT’s reasons for decision on charges 2 and 3.

In order to facilitate a proper comparison with the course later taken by VCAT, it is desirable now to set out all those parts of the VRT’s decision of 7 October 2020 that represent its findings and observations about Mr Laming’s stable practices and about the precursors to, and the circumstances surrounding, the elevated cobalt reading for Iam Ekstraordinary. Those parts of the reasons appear under several different headings.

First, under the heading ‘The findings of fact’, the VRT said:

We make the following findings of fact.
At the relevant time, Mr Laming conducted two training establishments. These matters arose at Clyde. Mr Marnu Potgieter was his licensed assistant trainer, or foreman. Ms Amy Mercer was a licensed stable hand employed by Mr Laming. She had been so employed for four or five years at the relevant time, and indeed was so employed before the arrival of Mr Potgieter. Her duties included the administration of injections and the written recording of these.
Iam Ekstraordinary was to run at Ballarat on Wednesday 23 May 2018. Approximately three months earlier, the stable had been involved with the Stewards in relation to the use of a nebuliser on a horse on race day. Thus, Mr Laming, Mr Potgieter and Ms Mercer should have been on full alert as to the importance of ensuring that treatment was not given immediately before or on race day.
Approximately one week before the commencement of this hearing the Stewards reinterviewed Ms Mercer. As a result, the Stewards accepted that Ms Mercer had made an honest mistake in injecting the horse with cobalt on race day.
We say now that we are quite satisfied that, in the present case, cobalt was administered on Wednesday 23 May 2018 by means of a vitamin injection, albeit one given in error. Associated with that error was a virtually complete absence of records at that time and the lack of any adequate means of indicating which horse or horses were to race on a particular day. Nothing seems to have been learned from the nebuliser incident three months previously. Further, neither Mr Laming nor his foreman, Mr Potgieter, were present at the Clyde stables prior to Iam Ekstraordinary being removed from the stables, put in the float and taken to Ballarat races on the day in question. Neither attended at Ballarat. When interviewed by the Stewards almost four weeks later, Mr Laming did not even seem to realise that no relevant records had been kept for about six weeks.
Ms Mercer gave evidence that she could not rule out the possibility that she had given Iam Ekstraordinary a vitamin injection on the morning of 23 May 2018 at some time before the horse was placed in the float and taken to Ballarat. She had some computer problems which she said explained the lack of any records. Ultimately there was no challenge to the proposition that the positive reading probably emanated from a vitamin injection erroneously administered by Ms Mercer on the morning of 23 May 2018 and, as stated, we accept this.
We also find that on that morning neither Mr Laming nor his foreman was present; that the computer program in relation to the administration of substances and the like was not working and had not for some time; that there was a totally inadequate system, if you could call it that, in relation to indicating which horses were about to race and when; and, given the contents of his interview of 20 June 2018 and his evidence, there was a high degree of ignorance on the part of Mr Laming as to the particulars of what was going on in his stables.
We also find that, early in her employment with Mr Laming and even before the arrival of Mr Potgieter as foreman, Ms Mercer had been instructed by Mr Laming not to administer injections on race day. She remained aware of this. She was familiar with the injection process and, over the years, had administered thousands of injections.

The VRT then summarised the submissions of the parties. By far the greater part of the summary dealt with allegations that had been made, and contentions that had been advanced, by RVL in relation to asserted deficiencies in Mr Laming’s stable practices and in relation to prior events involving the stable. I have already referred to those aspects of the summary that are of present significance.

The next part of the reasons of the VRT was headed ‘Ruling’. It included observations that reflected findings of fact that had already been expressed by the VRT, together with observations that amounted to additional, related findings of fact. In the first part of the section headed ‘Ruling’, the VRT said:

We say at the outset that we consider the stable practices of Mr Laming to be careless, inadequate and marked by indifference as to what was happening. The term employed by [counsel for the Stewards] – ‘shambolic’ – is appropriate.
However, the issue is whether that is sufficient to satisfy the requirements of [the ‘administration’ Rule], particularly in light of the observations of McLeish JA and Cavanough AJA in Kavanagh.
…
That Ms Mercer knew that there was to be no administration to a horse on a day that it was racing seems beyond dispute. We accept that she had been instructed by Mr Laming concerning this early in her employment, if not virtually at the outset.
In her initial interview on 20 June 2018 she stated that there was ‘no way’ she would have treated a horse on race day and ‘…I just make sure that I do the clear day… If it’s too close to race day, I just don’t do it.’
Whilst Ms Mercer’s perception of her authority might be useful, it does not necessarily answer the important question of the authority in fact invested in her. In his evidence before the Tribunal, Mr Laming stated that he had no direct contact with Ms Mercer. He did not speak to her about treatments. He did not check back with Mr Potgieter. He did not check the treatment diary. Mr Laming gave Mr Potgieter open licence. He was aware that Mr Potgieter delegated work to Ms Mercer. He did not engage in active supervision of them and had confidence in their abilities. Mr Laming knew that Mr Potgieter would be absent on the Wednesday in question and that he left instructions when he was not at work.
In this regard, Ms Mercer told the Tribunal that Mr Laming originally gave her instructions and Mr Potgieter instructed her to perform them. She gave the injections for Mr Laming and it was something that she could do ‘with her eyes closed’. She gave approximately five thousand injections per annum and had been doing that for four or five years at the relevant time. She dealt with Mr Potgieter in relation to treatments, but not with Mr Laming.
Mr Potgieter did not give evidence, but the transcript of his interviews with Stewards was placed before us. In his first interview of 20 June 2018, he stated that he did not normally work on a Wednesday and was not at work on Wednesday 23 May 2018. He and Ms Mercer were ‘mainly’ responsible for the treatments to the horses and ‘mainly’ under the guidance of Mr Laming. It was only himself, Ms Mercer or Mr Laming who would treat the horses. Injections would only be given by ‘the main staff’ – the three people just mentioned. Mr Laming would not know whether vitamin injections had been administered or not. He would not know on which day. He is not on the list of people who have access to the record of vitamin administrations – ‘If he wants to know something, he will just ask us.’ Ms Mercer is supposed to record administrations.
By the time of Mr Potgieter’s second interview one day later on 21 June 2018, Ms Mercer had apparently reconstructed from memory the relevant missing diary entries in relation to weekly injections. These included injections to Iam Ekstraordinary on Monday 21 May 2018. For the month of May there still seemed to be two missing weeks. The injections are given on random days ‘whenever we’ve got some spare time’. It was pointed out to Mr Potgieter that, if the relevant injections had been given on the Monday, two days before the race day testing, the test would not have shown the positive return which it did.
We’ve gone into the interviews with Mr Potgieter at some length because they give some idea of the haphazard ‘random’ regime of injection giving that existed and the apparent absence of any direct control or intervention provided by Mr Laming. This is consistent with his absence of anything like adequate knowledge of what was occurring in his stables, particularly as demonstrated in his original interview, not that his level of knowledge seemed to improve greatly thereafter.
The question which we have to decide is whether this shoddy and careless way of running stables constitutes a breach of [the administration Rule]. Has the requirement of the words ‘caused to be administered’ been satisfied?
We are satisfied that Mr Laming invested authority in Ms Mercer to administer injections and that he instructed her not to administer such injections on race day. This occurred at the time of, or shortly after, the commencement of her employment. She understood it. Thereafter, he effectively left her to her own devices, and she administered thousands of injections over the years. This occurred before and after the arrival of Mr Potgieter.

Next, the VRT made certain legal points relating to the way in which the relevant ‘administration’ Rule of Racing might be interpreted and applied in circumstances of the present kind. In the course of doing so, the VRT returned from time to time to the particular facts of this matter, saying:

In the present case, there is no suggestion that Mr Laming authorised Ms Mercer to administer the injection on race day. There is no suggestion that he exerted a capacity of control or influence in order to direct Ms Mercer so to do. There is no suggestion that he intended, contemplated or desired that any such authority or direction, if it existed, would be acted upon. The evidence is to the contrary. However dated it may have been, any general direction given to Ms Mercer was not to administer injections on race day. As for the particular injection on 23 May 2018 (race day), there is no suggestion that Mr Laming even knew of the injection being administered, much less authorising or exerting a capacity of control or influence so as to direct Ms Mercer so to do. Explicitly and by inference, Ms Mercer had been vested with authority to administer injections, but specifically not on race days.
…
What occurred in the present case was a clear instruction as to non-administration on race day. There is no suggestion that Ms Mercer did not understand or appreciate this. The contrary is quite clear. What seems to have occurred is a wilful administration, but one performed accidentally on a race day. That seems to us to fall within the exclusion referred to by McLeish JA.

Ultimately, the VRT held that, on its proper interpretation, the relevant ‘administration’ Rule of Racing probably did not apply to a failure to do something (or to negligence, neglect or lack of supervision) on the part of the accused person. On that basis, the VRT said that it was not comfortably satisfied that charge 1 had been made out. Accordingly, the charge was dismissed.

In or about December 2020 the VRT received written submissions from both sides in relation to the question of penalty on charges 2 and 3. It is not clear whether there was also an oral hearing in that regard. The Court Book contains no record of any such oral hearing. However, it is clear that no further evidence was led by either side.

Despite the absence of any further evidence, RVL sought, as I have already mentioned, to revive the wrong-box scenario for the VRT’s consideration on penalty. In its written submission to the VRT (of 19 pages) dated 3 December 2020,[97] in a section headed ‘The nature of the offence’, RVL at first listed[98] a series of ‘findings’ said to have been made by the VRT in its reasons for decision on charge 1, including a ‘finding’ relating to the nebulizer incident.[99] The list did not include any reference to any aspect of the wrong-box scenario. However, RVL went on immediately to refer, in considerable detail, to the wrong-box scenario, saying:[100]
[97]CB 169–188.
[98]RVL’s written submission to the VRT dated 3 December 2020, [14]: CB 172–173.
[99]Ibid [14(k)]: CB 173.
[100]Ibid [15]–[21]: CB 173–174. Footnotes omitted.

As mentioned above,[122] VCAT’s orders and reasons for decision occupy 44 pages. The reasons are divided into 156 paragraphs. Those paragraphs are set out under 11 main headings and 13 sub-headings. As is also mentioned above,[123] the structure and the tenor of the reasons owe much to the submissions of RVL. The very length and complexity of VCAT’s reasons is remarkable, and indicative of error, given that VCAT’s decision was required to be confined to the matter of penalty only and given that VCAT was statutorily bound by the findings of fact that had been made by the VRT.
[122]See [4] above.
[123]See [92], [93], [101] above.

The first section of VCAT’s reasons is headed ‘Nature of Application’. It covers Mr Laming’s pleas at the VRT and the penalties imposed by the VRT. The applications for review of the penalties are then mentioned. There is no reference in this first section to the major, related ‘administration’ charge that the VRT had dismissed. Finally, this section includes the first instance[124] of VCAT’s incomplete (and infelicitous)[125] statement that the task of VCAT ‘is to determine the correct and preferable penalty’ for the breaches of the Rules of Racing.
[124]Laming v Racing Victoria Ltd(Review and Regulation) [2022] VCAT 55, [6]. See also ibid at [59] and [68].
[125]See [93] above of this judgment and the footnotes thereto.

The second section of VCAT’s reasons sets out the particular Rules of Racing said to be relevant.[126]
[126]There is no dispute between the parties about the applicability of the particular Rules of Racing said to have been breached by Mr Laming, as set out by VCAT. On the other hand, I note that the events the subject of the charges against Mr Laming took place before the commencement of the particular version of the Rules of Racing that includes those particular Rules. It seems that the corresponding previous Rules were in like terms. I need not and do not stop to consider whether the effect of the relevant transitional provisions has been properly understood and applied.

The third section of the reasons is entitled ‘Tribunal’s Review Jurisdiction’. It begins with paragraph [10]. That paragraph commences as follows (my emphasis): ‘Section 83OH of the Racing Act relevantly provides:…’ The terms of s 83OH are then set out, but, as mentioned above, with the omission of the note appended to s 83OH that refers to clause 66N. It seems that VCAT considered clause 66N to be irrelevant. No other reason for omitting the note (and for omitting any reference at all to clause 66N) appears from VCAT’s reasons. In paragraph 11, VCAT proceeds to set out sub-sections (1) and (2) of the abovementioned s 51 of the VCAT Act. There is no acknowledgement here, or anywhere else in the reasons, of the fact that clause 66N begins with the words ‘Despite section 51’.

The fourth section of VCAT’s reasons is headed ‘Nature and Circumstance [sic] of offending’. Again, there is no reference in this section to the major, dismissed charge. Nor is there any reference here to the VRT’s reasons for dismissing that charge.

Paragraphs 12–13 deal with the particulars of the ‘presentation’ charge. Paragraph 14 declares that it ‘is’ not in dispute that the cobalt threshold was exceeded. This is language that might have been appropriate for a de novo hearing, but not for a hearing that is to be based on the findings of fact of the VRT.

Paragraph 15 of VCAT’s reasons sets out the particulars of the recording charge.

Paragraph 16 foreshadows the approach to be taken by VCAT in the balance of the statement of reasons. The paragraph is redolent of VCAT’s misconception of its role in a review under s 83OH of the Racing Act 1958; and so it should be set out verbatim and in full:

16.The position taken by each party could not have been more at odds, both as to the interpretation of the factual circumstances and the application of the law. I will therefore deal with the applications before the Tribunal as follows:
(a) Set out selected extracts as follows:
(i)Interviews conducted by the Stewards of Mr Laming and his stable hand, Ms Amy Mercer (Ms Mercer);
(ii)Oral Evidence given in the hearing of the Charges before the VRT by Mr Laming, Marnu[127] and Ms Mercer; and
(iii)Findings made by the VRT when imposing penalties;

(b) Summary of authorities relied upon by each party; and
(c)Written and oral submissions made by the Counsel for each party.

[127]VCAT made a slip in referring to oral evidence given before the VRT by ‘Marnu’. Marnu Potgeiter did not give evidence in the hearing before the VRT. Only his interviews with the stewards were before the VRT.

In my view, if VCAT had appreciated that it was bound by the findings of fact made by the VRT, it would have said so at the outset. VCAT would not have referred to ‘the interpretation of the factual circumstances’. VCAT would not have proposed to deal with the interviews conducted by the stewards and with the oral evidence given in the hearing at the VRT before coming to the findings made by the VRT. It is also significant that VCAT here refers to findings made by the VRT ‘when imposing penalties’. This tends to confirm that VCAT was not concerning itself with any findings made by the VRT when it dismissed the main charge.

The fifth section of VCAT’s reasons is headed ‘Interviews conducted by stewards’. It is comprised of paragraphs 17–28.

In paragraphs 17 and 18, VCAT canvasses in considerable detail Mr Laming’s interview with the stewards on 20 June 2018, being his first interview after receipt of the results of the analysis of the sample taken from Iam Ekstraordinary. At the beginning of paragraph 18, VCAT states:

During his first interview, I am satisfied that Mr Laming endeavoured to answer all questions put to him in an open and frank manner. However, he clearly expressed a limited knowledge of the stable operations, relying primarily upon his assistant trainer Marnu.

To adopt such a starting point, and to make such statements, might be appropriate in reasons given by VCAT in a case involving a completely de novo hearing, but, once again, not in a matter like the present, where VCAT is bound by all relevant findings of fact that had been made by the VRT.

In paragraphs 19 and 20, VCAT summarises, and discusses for itself, a further interview by the stewards with Mr Laming that was held on 21 June 2018.

In paragraphs 21 to 28, VCAT turns to interviews between the stewards and Amy Mercer that had been held on 20 and 21 June 2018, and VCAT refers also to the re-interview with Ms Mercer of 14 August 2020, commenting that ‘the account given on each occasion was very different’. In paragraph 26, VCAT seems to discount a theory advanced by Ms Mercer as to how she might have made the mistake of injecting Iam Ekstraordinary on 23 May 2018, being a theory that did not involve the placement of the horse in the wrong-box.

The sixth section of VCAT’s reasons is entitled ‘Evidence before and findings of VRT’. This section is comprised of paragraphs 29–35 and occupies more than 7 pages of the reasons.

VCAT commenced this sixth section by seeking, in paragraph 29 (which itself runs for about three pages), to encapsulate and analyse the evidence given by Mr Laming under cross-examination at the VRT. VCAT includes here, in full, the self-same extracts from the VRT transcript that had been relied on by RVL to try to establish the wrong-box scenario.[128]
[128]See [84] above, quoting [16] of RVL’s written submission to the VRT; and see also [97] above.

In paragraphs 30–32 of its reasons, VCAT seeks to summarise Ms Mercer’s evidence-in–chief given to the VRT, and then sets out lengthy extracts from the transcript of Ms Mercer’s cross-examination at the VRT.

Paragraphs 33 and 34 are in the following form:[129]
[129]Omitting footnotes.

33. The VRT made the following findings regarding Mr Laming’s conduct:
[here, VCAT sets out two paragraphs from the VRT’s reasons of 19 February 2021].[130]

34. In relation to penalty, the VRT made the following observations:
[here, VCAT sets out the remaining paragraphs from the VRT’s reasons of 19 February 2021].[131]

Consistently with what VCAT had said in paragraph [16(a)(iii)] of its reasons,[132] paragraphs 33 and 34 of VCAT’s reasons confirm that VCAT recognised only the VRT’s reasons of 19 February 2021 as containing any ‘findings’ of the VRT. And, even in this context, VCAT does not use the full expression ‘findings of fact’. Rather, it refers merely to ‘findings’ and to ‘observations’ made by the VRT.

[130]These two paragraphs correspond with the first two of the several paragraphs of the VRT’s reasons for decision of 19 February 2021 that are quoted in [87] above.

[131]See [87] and [88] above.

[132]Set out [112] above.

In paragraph 35 of its reasons, VCAT foreshadows that it will return later to several aspects of the evidence given by Mr Laming and Ms Mercer.

The seventh section of VCAT’s reasons is entitled ‘Relevant Offending’. It occupies five pages and is comprised of paragraphs 36–51. Those paragraphs, in turn, are arranged under five sub-headings. This section contains a detailed treatment of other, mainly prior, breaches by Mr Laming of the Rules of Racing. The VRT had not gone into such detail about those matters.

The eighth section is headed ‘Counsel’s submissions on behalf of Mr Laming’. Paragraphs 52–56 make up this section. It mainly covers legal arguments that are no longer pressed by Mr Laming.

The ninth section is entitled ‘Relevant Authorities’. This is comprised of paragraphs 59–87. Paragraphs 59 and 68 of the reasons contain more references to determining ‘the correct and preferable penalty’.[133] This section, too, mainly relates to authorities and arguments that are no longer pressed. However, it is useful to note paragraphs 66–69 of VCAT’s reasons. In my view, those paragraphs, especially [66], confirm that VCAT considered that the factual findings made by the VRT when the VRT ‘rejected the more serious (administration) offence’[134] were not even relevant to the exercise on which VCAT had embarked, much less binding on VCAT. Paragraphs 66–69 of the reasons also indicate that VCAT considered that any findings of fact made by the VRT in it reasons of 19 February 2021 were merely ‘relevant’,[135] as distinct from binding.
[133]See [93] of this judgment (and the footnotes thereto) and [106] above.
[134]Laming v Racing Victoria Ltd(Review and Regulation) [2022] VCAT 55, [66].
[135]Ibid esp at [66]–[67].

The tenth section of VCAT’s reasons is headed ‘Penalties imposed against trainers for presenting horses with cobalt’. This section encompasses paragraphs 88–112, with two sub-headings. It is not presently relevant, except that in paragraph 103(b) VCAT makes adverse comments about Mr Laming in relation to his stable practices, and criticises Mr Laming for something not mentioned in either of the VRT’s sets of reasons for decision, namely that Mr Laming ‘did not advise the Stewards of Ms Mercer’s possible mistake and injection, or encourage Ms Mercer to do so, despite Ms Mercer speaking with Mr Laming’s lawyers about the matter in early 2020’.

The eleventh section of VCAT’s reasons is entitled ‘Analysis of the Rules and application and purpose of penalty’. It is comprised of an initial part of about five pages and a further part, arranged under five sub-headings, of three pages.

In this eleventh section, VCAT discusses the legal principles it considered to be applicable to imposing disciplinary penalties generally, and VCAT also discusses the purposes it identified as underlying the relevant Rules of Racing in particular. I note that VCAT’s decision was given in January 2022, before the judgment of the High Court in Australian Building & Construction Commissioner v Pattinson.[136] In the present case, before this Court, the parties filed extensive pre-trial written submissions relating to the question whether, or to what extent, Pattinson might bear on the proper approach to assessing penalties in racing disciplinary cases. That question became irrelevant to the validity of VCAT’s decision of January 2022 once Mr Laming dropped all of his points and arguments except the one that I have upheld.
[136][2022] HCA 13.

However, some of the things said by VCAT in the eleventh section of its reasons remain noteworthy for present purposes.

In paragraph 123, VCAT said that ‘[it] is critically important to assess the circumstances in which a breach of a strict liability offence occurs’. That statement would be unobjectionable if VCAT had been referring, at least principally, to the ‘circumstances’ revealed by the relevant findings of fact made by the VRT. But VCAT was not doing so. VCAT was referring to its own findings. That is already apparent from the passages of VCAT’s reasons and the other material to which I have already referred. It is confirmed by numerous additional things contained in the eleventh section of VCAT’s reasons. Some examples should be mentioned.

One example appears in the very next paragraph ([125]) of VCAT’s reasons. VCAT there says (my emphasis):

125.     It is accepted that Mr Laming:
(a)       Did not intend for the breach to occur;
(b)       Had no knowledge of the breach when it did occur; and
(c)       Did not play any direct role in the commission of such breach.

Here, VCAT is continuing to paint its own picture of the circumstances of the offences, in its own words, not in the VRT’s words.

Again, in paragraph 126, VCAT says that it was Mr Laming’s responsibility to ensure that every reasonable measure was taken to avoid breaches of the Rules relating to cobalt; and VCAT then proceeds immediately (in paragraph 127) to say (my emphasis):

127. Accordingly, it is appropriate to examine:
(a) The findings made by the VRT;
(b)The relevant admissions made by Mr Laming and Ms Mercer; and

(c) Mr Laming’s relevant prior history of offending.

Of course, VCAT should have been accepting and applying the findings made by the VRT, not examining them; and VCAT had no authority to examine together, in the sense of comparing and contrasting, the ‘findings made by the VRT’ and the ‘relevant admissions made by Mr Laming and Ms Mercer’.[137]

[137]Further to my observations above on the proper construction of clause 66N, it is a real question (though a question I need not to decide) whether VCAT could ever have any authority to examine admissions or other evidence for itself for the purpose of making its own findings on any matter on which the VRT could have made, but did not make, findings of fact.

In the first sentence of paragraph 128 of the reasons, VCAT says (my emphasis): ‘The findings of the VRT in relation to Mr Laming’s stable practices have been extracted above’. VCAT must have been referring here to paragraphs 33 and 34 of its reasons, because they are the only places where VCAT extracts anything from either of the VRT’s sets of reasons for decision. But paragraphs 33 and 34 of VCAT’s reasons reproduce, only, passages taken from the VRT’s reasons of 19 February 2021. It follows that VCAT was confining itself to the findings it considered to be contained in that second set of the VRT’s reasons.[138]
[138]See [121] above.

Paragraph 128 of VCAT’s reasons is also the place where one finds VCAT accepting certain things, mentioned above,[139] that were put to VCAT by RVL but that had not been found by the VRT. I refer to the following three sentences in paragraph 128:

In conjunction with Dr Roberts, Mr Laming had approved a regime of injections that involved three different forms of (potentially) Cobalt containing substances.
…
[Mr Laming knew that] there is no therapeutic use of benefit for administering Cobalt to horses…
[Mr Laming was] aware of prior Cobalt cases against other trainers and the seriousness of any breach of prohibited substance rules.

[139]See [98] above.

VCAT commences paragraph 130 of its reasons as follows:

Consistent with the circumstances set out by the VRT and its findings, the current breaches before the Tribunal occurred in circumstances where…

There follow nine sub-paragraphs which, at least mainly, constitute findings of fact made by VCAT itself. Paragraph 130 may indicate that VCAT believed that its own findings of fact were consistent with the findings of fact made by the VRT, but at the same time paragraph 130 confirms that VCAT considered itself free to make its own findings of fact, untrammelled by the VRT’s finding of fact.

Paragraph 130 also contains the first of two examples[140] of VCAT’s dissatisfaction with Mr Laming and Ms Mercer as testifiers (even though VCAT itself did not hear evidence from either of them). VCAT observes in paragraph 130(e) that ‘neither Mr Laming nor Ms Mercer had an adequate or reliable memory as to the labelling of horse boxes with horse names and race day, where applicable’. The VRT had not made any corresponding specific observations about the reliability or adequacy of the memory of Mr Laming or Ms Mercer. It is not a sufficient answer to this to say that the VRT had been of the view that Mr Laming’s stable practices generally were ‘shambolic’.
[140]The second example of this is in [137] of VCAT’s reasons: see below.

Between paragraphs 131 and 141 of its reasons, VCAT wholly accepts RVL’s ‘wrong-box scenario’. Paragraphs 131, 138, 140 and 141 are the clearest indicators of this. The first five lines of paragraph 131 constitute an extremely close paraphrase of paragraph 20 of RVL’s written submission to VCAT of 10 June 2021, paragraph 20 being, as mentioned above,[141] a repeat of paragraph 15 of RVL’s submission to the VRT of 30 December 2020.[142] These five lines are based on what VCAT takes Ms Mercer to have ‘admitted’. The last four lines of paragraph 131 amount to a summarised version of paragraphs 21 and 22 of RVL’s written submission to VCAT of 10 June 2021 (being paragraphs corresponding with paragraphs 16 and 17 of RVL’s submission to the VRT of 3 December 2020).
[141]See [97] above.
[142]See [84] above.

Paragraph 138 of VCAT’s reasons contains the following sentence (my emphasis):

Calling a staff meeting after the first mistake did not prevent a similar mistake being made by the same staff member nearly three months later.

As indicated above and as further explained below, VCAT’s factual finding of a ‘similar mistake’ clashes with the VRT’s implicit refusal to find that there had been a ‘similar mistake’.

In paragraph 141, VCAT says that it is taking into account ‘all the circumstances surrounding the subject breaches and the lack of vigilance following prior breaches’.[143] Read with the surrounding paragraphs of its reasons, VCAT’s use here of the plural (‘prior breaches’) is further confirmation that it is taking into account the wrong-box scenario.
[143]My emphasis.

Even before paragraphs 131–141 of its reasons, VCAT had frequently mentioned the wrong-box scenario.[144] And, even after paragraphs 131–141, VCAT mentions it again, namely in paragraph 146, under the sub-heading ‘General deterrence’, where VCAT says:

This vitamin regime was not subject to any direct control or intervention by Mr Laming notwithstanding the ‘wrong-box’ incident that occurred shortly before the relevant offence.

By contrast, and by contrast also with what the VRT had done, VCAT mentions the nebulizer incident only once in the whole of its reasons, and only in passing, in summarising the first interview between the stewards and Mr Laming.[145]

[144]Laming v Racing Victoria Ltd(Review and Regulation) [2022] VCAT 55, [21], [22], [29(o), (q) and (r)], [31], [32], [57(b)], [129], [130(b)].

[145]Ibid [18(j)].

VCAT’s reference, in paragraph 141 of its reasons, to prior ‘breaches’ has a further significance. As mentioned above,[146] it seems very clear (indeed, it appears, at least now, to be common ground) that the wrong-box incident of February 2018 did not involve any breach of the Rules of Racing at all. In any event, that was evidently the view of the VRT; and, in my view, that amounts to a finding of fact by the VRT for present purposes. VCAT, however, treated the wrong-box incident as involving a breach of the Rules of Racing. That is consistent with the emphasis that VCAT gave to the wrong-box scenario. It is also shown by the language of paragraph 129 of VCAT’s reasons, as follows (my emphasis):

The inadequacy of Mr Laming’s stable and record keeping practices was manifest in the series of prior breaches in February and May 2018; and again, in the subsequent offence in October 2018, when he breached AR104 by failing to record a calcium drip administered to a horse in his care, while on notice of the charges which are now before the Tribunal.

[146]See [73]–[74] above.

As mentioned above, VCAT’s own findings in relation to the wrong-box scenario appear between paragraphs 131 and 141 of its reasons, together with a further, confirmatory reference in paragraph 146. As is also mentioned above, VCAT’s findings are based on what VCAT says Ms Mercer ‘admitted’ about the wrong-box incident.[147] In the midst of this, in paragraph 132, VCAT refers to Mr Laming’s ‘reluctance to act upon past breaches of the Rules by exercising vigilance in examining stable practices and record keeping and implementing appropriate measures to eliminate avoidable errors’.[148] This appears to treat the wrong-box incident of February 2018 as a past breach of the Rules. Likewise, in paragraph 138, as mentioned above, VCAT treats the wrong-box incident and the Iam Ekstraordinary incident as equivalent, observing that ‘[c]alling a staff meeting after the first mistake did not prevent a similar mistake being made by the same staff member nearly three months later’.[149] These references lead up to the abovementioned equating by VCAT, in paragraph 141 of its reasons, of the ‘subject breaches’ with the ‘prior breaches’. In my view, VCAT impliedly found that the wrong-box incident involved a breach of the Rules of Racing. This was a finding of fact. It was directly inconsistent with the VRT’s implicit finding of fact that any wrong-box incident of February 2018 did not involve a breach of the Rules of Racing.
[147]See Laming v Racing Victoria Ltd(Review and Regulation) [2022] VCAT 55, [131].
[148]My emphasis.
[149]My emphasis.

At least arguably, there are other direct inconsistencies as well. The VRT found that Ms Mercer had mistakenly injected Iam Ekstraordinary with vitamins on 23 May 2018, being the day of the Ballarat race, but the VRT did not find that Ms Mercer had also injected the horse two days earlier, on 21 May 2018. (The evidence before the VRT was equivocal about any injection on 21 May 2018). Nevertheless, VCAT saw fit to find that Ms Mercer had injected Iam Ekstraordinary on both days.[150]
[150]Laming v Racing Victoria Ltd(Review and Regulation) [2022] VCAT 55, [135].

Further again, whereas the VRT made no adverse reference to Mr Laming or Ms Mercer as witnesses, in paragraph 137 of its reasons for decision VCAT said:

I am not satisfied that either Mr Laming or Ms Mercer gave reliable evidence of their respective recollections.

VCAT’s reasons for decision in this matter clearly demonstrate that VCAT failed to duly recognise that it was bound by the findings of fact made by the VRT. VCAT thus erred in law.

Materiality

Turning to the question of materiality, an error of law made by an administrative tribunal will be material if, in the absence of the error, the decision of the tribunal might have been different.[151] I am satisfied that VCAT’s decision might have been different if it had properly recognised and applied clause 66N.
[151]Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123. See, generally, Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability, 7^th ed, [3.100].

The kind of process on which VCAT embarked in the present case carries a substantial risk that VCAT will form impressions detrimental to the prospects of success of one party or another, whether or not any specific conflicts in the findings of fact actually emerge.

Moreover, in the present case, as has been seen, VCAT actually expressed dissatisfaction with the credibility and reliability of Mr Laming and one of his stable hands as witnesses before the VRT, whereas the VRT itself had not done so. And VCAT expressed such dissatisfaction even though VCAT itself had heard no evidence from these witnesses or from any other witnesses.

Further, as indicated above in my consideration of VCAT’s reasons for decision, there were actual inconsistencies between the findings of fact made by the VRT and those made by VCAT in the present case. Mainly those inconsistencies related to the wrong-box scenario, and to the question whether the wrong-box incident had involved a breach of the Rules of Racing. There was also the matter of whether Ms Mercer had mistakenly injected Iam Ekstraordinary on 21 May 2018 as well as on 23 May 2018. The fact that VCAT made inconsistent findings of fact was due to the approach it took, under the influence of its legal error. Absent the legal error, and absent the inconsistencies, VCAT might have taken a more benign view of Mr Laming’s position.

There is another way, too, in which VCAT’s legally erroneous approach in this case is likely to have contributed to the adverse outcome that befell Mr Laming. Under the more conventional ‘de novo’ style of administrative review, VCAT may or may not be entitled to give weight to the decision below, although VCAT should not treat the decision below as presumptively correct.[152] However, the 2019 amendments to the Racing Act 1958, which included the introduction of clause 66N, would clearly justify VCAT giving weight to the decision of the VRT, as an expert tribunal, by whose findings of fact VCAT is bound.[153] In the present case, there is no indication in VCAT’s reasons for decision that it even considered whether or not to give weight to the conclusion of the VRT. In any event, the vast increase in severity of the penalties imposed by VCAT suggests strongly that VCAT, having made its own findings of fact, gave no weight whatsoever to the VRT’s conclusion on penalty. Had VCAT adopted the correct legal approach, it may well have considered the VRT’s conclusion and given it considerable weight.
[152]Maund v Racing Victoria Ltd [2015] VCAT 1303, [19].
[153]Harness Racing Victoria v Craven (Review and Regulation) [2019] VCAT 2040, [30]; Divirgilio [2022] VCAT 1395, [13]-[17]. See, more generally, Macedon Ranges Shire Council v Romsey Hotel Pty Ltd (2008) 19 VR 422, 437 [53]; Hoskin v Greater Bendigo City Council (2015) 48 VR 715, 747 [107]-108].

Discretion

As mentioned above, RVL submits that, if VCAT made any error, Mr Laming himself contributed to it by inviting VCAT to make its own findings of fact. RVL contends that this should lead to a discretionary dismissal of Mr Laming’s application for leave to appeal or of his proposed appeal.

However, although Mr Laming did invite VCAT to make some findings of its own, RVL did so too, and it did so first and to a greater extent. Further, RVL did not at any stage submit to VCAT that VCAT should not independently enter the field already covered by the VRT’s express or implied findings of fact. Quite the reverse. In those circumstances, and given the fundamental nature of VCAT’s error of law, it would not be appropriate to deny relief to Mr Laming on discretionary grounds.

Conclusions

My essential conclusions on the points raised by RVL, as summarised in [9] above, are as follows, respectively:

(a) clause 66N protects more than just ‘positive’ findings of fact; VCAT is bound by all of the facts found by the VRT; and for the purposes of clause 66N, the VRT’s findings of fact include any decisions by it as to how particular allegations of fact should be dealt with;

(b) at the very least, VCAT must not make its own findings of fact on matters already covered by the VRT’s findings of fact; if VCAT does so, VCAT will err in law, whether or not there is any ‘inconsistency’ between ‘positive’ findings of fact;

(c) in any event, there were real and significant inconsistencies in the present case;

(d) VCAT did not appreciate that it was bound by the VRT’s findings of fact at all; alternatively VCAT did not appreciate that it was bound by the VRT’s findings of fact contained in its decision of 7 October 2020;

(e) VCAT’s error of law was material in the various ways mentioned above; in short, VCAT’s decision might have been different in the absence of the error of law;

(f) there is no basis for denying Mr Laming relief on discretionary grounds; RVL was mainly responsible for VCAT’s error of law.

On 19 December 2022, I made substantive orders accordingly. I awarded Mr Laming only 70% of his costs to reflect the fact that costs were thrown away by reason of Mr Laming’s raising of the numerous points that he later abandoned.

[2022] VSC 813

19 December 2022 (revised from oral, ex tempore reasons and published in writing on 28 February 2023). Further revised on 6 March 2023.