Lefoe v Thoroughbred Racing Northern Territory
[2025] NTSC 22
•17 April 2025
CITATION:Lefoe v Thoroughbred Racing Northern Territory & Anor [2025] NTSC 22
PARTIES:LEFOE, Garry
v
THOROUGHBRED RACING NORTHERN TERRITORY
and
NORTHERN TERRITORY RACING APPEALS TRIBUNAL
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: Supreme Court exercising Territory jurisdiction
FILE NOs:2024-03952-SC & 2025-00651-SC
DELIVERED: 17 April 2025
HEARING DATES: 3 & 10 April 2025
JUDGMENT OF: Smyth A/AsJ
CATCHWORDS:
ADMINISTRATIVE LAW – Judicial Review – Application for stay pending determination of judicial review application – Principles which apply to stays generally – Additional principles which apply in respect to judicial review of specialist occupational disciplinary Tribunals – Disqualification of Horse Trainer – Stay granted
Racing and Wagering Act 2024 (NT), s 46(1)(a), s 86, s 103,
Racing and Betting Act 1983 (NT) (repealed)
Supreme Court Act1979 (NT), s 57
Australian Rules of Racing, AR 19(h), AR24, AR 228(b), AR 229(a), AR 263(1)(d), AR 263(1)(k),
Maund v Racing Victoria Limited & Anor [2015] VSCA 276; New South Wales Bar Association and Stevens [2003] NSWCA 95, followed.
Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685, applied.
Aboriginal Development Corporation v Ralkon Agricultural Co Pty Ltd (1987) 15 FCR 159; Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130; Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; Brown v AEP Belgium SA (2004] VSC 255; Vaughan v Dawson (2008] NSWCA 169; Craig v South Australia (1995) 184 CLR 163; Enterprise Gold Mines NL v Mineral Horizons NL (No 1) (1988) 52 NTR 13; Hansen v Northern Land Council [1999] NTSC 115; Harper v Racing Penalties Appeal Tribunal WA & Anor 12 WAR 337; Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; Newcrest Mining v Industrial Relations Commission [2005] NSWCA 91; Sino Iron Pty Ltd v Mineralogy Pty Ltd (No 15) [2023] WASC 56; Stampalia v The Stewards of the West Australian Trotting Association & Anor [1999] WASC 7; TCN Channel 9 Pty Ltd v Antoniadis [No. 2] (1999) 48 NSWLR 381; Toulmin v Tasmanian Racing Appeal Board [2009] TASSC 115, referred to.
REPRESENTATION:
Counsel:
Plaintiff:D Sheales
First Defendant: D McConnel SC
Second Defendant: D Leigh
Solicitors:
Plaintiff:Northern Legal Services
First Defendant: De Silva Hebron Barristers & Solicitors
Second Defendant: Solicitor for the Northern Territory
Judgment category classification: B
Judgment ID Number: Smy2501
Number of pages: 29
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINLefoe v Thoroughbred Racing Northern Territory & Anor [2025] NTSC 22
Nos. 2024-03952-SC & 2025-00651-SC
BETWEEN:
GARRY LEFOE
Plaintiff
AND:
THOROUGHBRED RACING NORTHERN TERRITORY
First Defendant
AND:
NORTHERN TERRITORY RACING APPEALS TRIBUNAL
Second Defendant
CORAM: SMYTH A/AsJ
REASONS FOR JUDGMENT
(Delivered 17 April 2025)
The Plaintiff has made application for stays on certain decisions of the First and Second Defendants, incident upon applications for judicial review of decisions of the Second Defendant. The Plaintiff seeks an order in the nature of certiorari quashing a decision of the Second Defendant made on
8 January 2025 (in proceeding 2025-00651-SC, commenced 10 March 2025,[1] “the 2025 proceeding”) and seeks a similar order with respect to a decision of the Second Defendant made on 24 October 2024 (in proceeding 2024-03952-SC, commenced 23 December 2024,[2] “the 2024 proceeding”). I intend dealing with both stay applications simultaneously and the evidence tendered in one proceeding will be taken to apply to the other proceeding. The applications are opposed by the First Defendant. The Second Defendant indicated, for the purpose of the stay applications, that it neither opposed nor consented to the orders sought and was therefore excused from participation to that degree.
In the 2024 proceeding the Plaintiff, inter alia, seeks the following orders:
1. That the decisions of the Second Defendant made on 24 October 2024 that the Plaintiff:
a. is guilty of a breach of Australian Rule of Racing 228(b); and
b. be disqualified from holding a trainer’s licence for three months:
be stayed until the hearing and determination of the Plaintiff’s pending application to this Court for judicial review of those decisions or further order.
2. That the decisions of the First Defendant made on 1 July 2024 that the Plaintiff:
a. is guilty of a breach of Australian Rule of Racing 228(b); and
b. be disqualified from holding a trainer’s licence for six months:
be stayed until the hearing and determination of the Plaintiff’s application to this Court for judicial review or further order.
In the 2025 proceeding the Plaintiff, inter alia, seeks the following orders:
4. That the decisions of the Second Defendant made on 8 January 2025 that the Plaintiff:
a. was guilty of a breach of Australian Rule of Racing 263(1)(k);
and
b. be disqualified from holding a trainer’s licence for three months:
be stayed until the hearing and determination of the Plaintiff’s pending application to this Court for judicial review of those determinations or further order.
5. That the decisions of the First Defendant made on 27 September 2024 that the Plaintiff:
a. was guilty of a breach of Australian Rule of Racing 263(1)(k);
and
b. be disqualified from holding a trainer’s licence for six months:
be stayed until the hearing and determination of the Plaintiff‘s pending application to this Court for judicial review of those determinations or further order.
For the purposes of the stay applications, the evidence of the Plaintiff sworn 10 March 2025 and David Hensler (Hensler), for the First Defendant sworn 31 March 2025, were relied on and taken as read (as filed in the 2025 proceeding). The proceedings were heard expeditiously for the reasons set out below.
Background to the Proceedings
The background to these proceedings and the disciplinary proceedings against the Plaintiff are convoluted. The Plaintiff is a horse trainer and has held an “A” grade horse trainer’s licence issued by the First Defendant since 2016. As such the Plaintiff is, and was, purportedly subject to the licensing requirements of the Racing and Wagering Act 2024 (NT) (the Act), and the Australian Rules of Racing (ARR) as adopted by the First Defendant, as the race control body for thoroughbred racing, pursuant to the Act. I say purportedly because it was brought to my attention, after the initial hearing of the stay applications, that an issue had arisen. That issue concerned the gazettal of the appointment of the First Defendant on 4 April 2025 as the race control body pursuant to s 46(1)(a) of the Act. The Act commenced on 1 July 2024. As a result, and obviously without any admissions, I was informed that the Northern Territory Government intended to enact legislation to retrospectively validate acts purportedly done under the Act between the commencement of the Act and the appointment of the First Defendant. The period from 1 July 2024 to 4 April 2025 covered the period the Defendants relevantly dealt with the Plaintiff, and which is the subject of these proceedings. For the purpose of these proceedings, until and unless there is an order or decision of the Court determining the effect of the failure to gazette the First Defendant, it was my expressed intention to proceed to determine the stay applications as presented. The parties did not object otherwise.
The ARR provides for disciplinary processes, penalties and restrictions on licensed trainers such as the Plaintiff. ARR 24 gives racing Stewards the power to conduct disciplinary inquiries and to penalise persons who have breached the rules. ARR 19(h) provides that where the Rules state that a Steward has a power or function, the source of that power or function is to be taken as read as being conferred on the Steward through delegation by the principal racing authority in the Northern Territory (ie. the First Defendant), and/or through any valid government statute or legislative instrument. Sections 86 and 103 of the Act provide for a right of appeal to the Northern Territory Racing Appeals Tribunal, the Second Defendant, against the outcome of a Steward’s disciplinary inquiry or what is in effect a decision of the First Defendant.
On 1 July 2024 the Stewards conducted an inquiry and charged the Plaintiff with a breach of ARR 228(b) (the first inquiry). The charge related to an allegation that the Plaintiff had approached and verbally threatened a jockey, Mark Pegus (Pegus), on 25 June 2024. At the time of the inquiry the Plaintiff had previously been found guilty of other breaches of the ARR and had been issued with a three months’ suspension which had been suspended for 12 months (for a breach of ARR 229(a) in relation to a prior assault on Pegus). The Plaintiff was found guilty and disqualified for six months (with the previous three months’ suspension enlivened to be served concurrently), effective from 8 July 2024 to 7 January 2025 (the first disqualification).
The Plaintiff appealed the first disqualification to the Second Defendant on liability and penalty. The appeal was heard on 2 and 6 September 2024 with a decision reserved (the first appeal).
Subsequently on 10 September 2024, whilst the first appeal decision was reserved, a second Stewards inquiry was held charging the Plaintiff with a breach of ARR 263(1)(d) (the second charge and second inquiry). That charge related to an allegation that the Plaintiff had engaged in providing a service of any capacity to any thoroughbred racing stable whilst disqualified.[3] The Plaintiff was found guilty and the period imposed by the first disqualification was re-set to commence on 17 August 2024 (the date of the breach). Thus, the Plaintiff was suspended from 17 August 2024 to 16 February 2025.
Subsequently on 27 September 2024, a further Stewards inquiry was held charging the Plaintiff with a breach of ARR 263(1)(k) (the third charge). That charge related to a number of instances of operating a betting account, and betting, in respect to thoroughbred race meetings held in Australia. The Plaintiff was charged with placing 36 bets totalling $4,400 between 10 July 2024 and 18 August 2024 whilst disqualified. The Plaintiff was found guilty and disqualified for a period of 12 months, to commence on the expiration of the first disqualification on 17 February 2025 (the second disqualification). Thus, the Plaintiff was disqualified until 17 February 2026.
On 4 October 2024 the Plaintiff appealed to the Second Defendant, on penalty, with respect to the second disqualification (the second appeal). Thus as at 4 October 2024, the Plaintiff had two appeals on foot to the Second Defendant.
On 24 October 2024 the Second Defendant delivered its decision on the first appeal, dismissing the Plaintiff’s appeal against liability and allowing the appeal against the penalty. The Second Defendant ordered a penalty of disqualification for three months, operational from 17 August 2024 to 17 November 2024 (the adjusted first disqualification and the first appeal determination).
On 11 December 2024 the second appeal was heard by the Second Defendant. The decision was reserved.
On 23 December 2024 the Plaintiff commenced the 2024 proceeding.
On 8 January 2025 the Second Defendant delivered its decision in the second appeal, allowing the appeal with respect to the severity of the penalty, and ordered a six months’ disqualification period, operational from 17 November 2024 (ie. the end of the adjusted first disqualification) to 17 May 2025 (the second appeal determination).
Issues raised at the appeal hearings before the Second Defendant
The substance of the Plaintiff’s substantial application for judicial review relates to the conduct of the first and second appeal hearings before the Second Defendant pursuant to the Act. At issue was the effect of the enactment of the Act in 2024 and the process of hearing appeals under the Act in comparison to the process previously adopted under the Racing and Betting Act 1983 (NT) (repealed). Specifically, whether the repeal of the Racing and Betting Act 1983 (NT) and the enactment of the Act had the effect of fundamentally changing the nature of an appeal to de novo appeals, whereas appeals had previously been required to establish an error of law or fact. Additionally, issues with respect to the process in which evidence was to be advanced to the Second Defendant on appeal was also raised.[4] The first appeal was the first proceeding held under the Act.
In both resulting appeals the Second Defendant rejected submissions advanced by the Plaintiff, effectively holding that the enactment of the Act did not result in any substantive change to the nature of and/or the procedure of appeals as had previously existed under the Racing and Betting Act 1983 (NT).
The Court’s Jurisdiction to Grant a Stay
There is no express statutory provision providing that the Court may grant a stay of the First or Second Defendants’ decisions, nor does the commencement of judicial review proceedings automatically operate as a stay on the decision sought to be impugned. The power to order a stay arises in the inherent jurisdiction of the Court.[5]
General Principles in Respect to Granting a Stay
The principles on which a stay will be granted in civil appeal proceedings are generally well established. Those principles are:[6]
(a) it is not necessary to make out special or exceptional circumstances for a stay.[7]
(b) an applicant must show that the appeal raises serious issues for determination and that there is a real risk that they will suffer damage or prejudice if a stay is not granted and will not be redressed by a successful appeal.[8]
(c) consideration should be given first, as to whether the appeal raises a serious question to be tried, in the sense of arguable grounds, and if so, where the balance of convenience lies.[9]
(d) the applicant must demonstrate a proper basis for a stay which will be fair as between the respective interests of the parties.[10]
(e) whether an appeal, if successful, will be rendered nugatory if a stay is not granted;[11] and
(f) the mere filing of an appeal does not demonstrate an appropriate case or discharge the onus.[12]
The Plaintiff and First Defendant were ad idem in respect to those general principles. However, where views differed was in respect to the distinction between stays sought in judicial review proceedings and on merits review appeals. It was the Plaintiff’s submission that considerations as to matters of fact relevant to staying merits review appeals will invariably be significantly different to those relevant to staying orders pending judicial review. This must be so, the Plaintiff submitted, because a merits review appeal is concerned with an appeal seeking to overturn a decision based on an error of law, which will involve appeal grounds directed to overturning findings of fact of the Tribunal. The Plaintiff submitted, as stated in Craig v South Australia:[13]
Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made.
Whilst that distinction is apparent, the important starting point is captured by the general principles above, in paragraph [19], which are encapsulated in the over-riding principle, as stated in New South Wales Bar Association and Stevens:[14]
The overriding principle to apply when determining an application for a stay is to ask what the interests of justice require. The Court’s jurisdiction exercised by Greg James J, which may fall to be re-exercised in this Court, is based on the inherent jurisdiction of the Court to protect the utility of proceedings brought in the Court, whether in its original jurisdiction or by way of statutory appeal.
What is evident from cases such Stevens[15] and Maund[16] is that additional and different considerations will arise for consideration where a stay is sought in the context of regulatory proceeding taken in the public interest. As stated in Stevens:[17]
The relevant authorities indicate that the protection of the public is a matter entitled to significant weight on an application for a stay once it appears that a professional person has acted improperly to a substantial degree.
and:
The significance of the public interest dimension in the exercise of the discretion to grant a stay in such circumstances, was highlighted by Kirby J in Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 at 309 where his Honour said:
In the exercise of the jurisdiction to provide a stay, it has often been emphasised that cases involving a stay of the operation of the criminal law or of laws designed to protect the public (e.g. deregistration of a professional lawyer or medical practitioner) are in a class different from cases involving no more than the suspension of the operation of orders affecting two private litigants only.
This was supported by Maund (footnotes omitted):[18]
A regulatory body may not be in the same category as an ordinary private litigant for present purposes.
…
It is true that where the decision in question includes a disciplinary penalty imposed under a regulatory regime, particular care may need to be exercised before a stay is granted. An example is Frugtniet v Law Institute of Victoria Ltd, which involved an application to stay a determination of VCAT that Mr Frugtniet was a disqualified person under certain legislation regulating the legal profession. It seems that Mr Frugtniet’s counsel did not argue that it was unnecessary for him to demonstrate special or exceptional circumstances. Moreover, Macaulay AJA (with whom Harper JA agreed) noted some additional matters that ought be weighed in the balance when exercising the Court’s discretion. These were the need to protect the public, and the seriousness of the conduct which had led to the decision by VCAT. In coming to their decision to refuse the stay, their Honours gave considerable weight to the need for public protection.
I am prepared to accept for the present applications that additional considerations will fall to be considered in the overall matrix when balancing the exercise of the Court’s discretion, where a stay is sought in the context of regulatory proceedings, and in judicial review proceedings. Those additional considerations will include: particular care may need to be exercised before a stay is granted because a public interest dimension may arise.
Bearing in mind, as stated in Stevens, that each case will turn on its specific facts, and the range of relevant considerations is broad, the overriding principle to apply when determining an application for a stay, in these circumstances, is to ask what the interests of justice require. The other relevant principles (a) to (f) are as set out in paragraph [19] above, additionally plus:
(g) the principle that a successful party ought not be deprived of the fruits of judgement is arguably less applicable in relation to an application for judicial review, on a question of law, of an administrative decision. Where the decision in question includes a disciplinary penalty imposed under a regulatory regime, particular care should be exercised before a stay is granted. That particular care can be met by consideration of matters such as the protection of the public, and the seriousness of the conduct, which are entitled to significant weight once it appears that a professional person has acted improperly to a substantial degree.
Parties’ Evidence and Submissions
The Plaintiff filed three affidavits in both proceedings in support of the stay applications. In the 2024 proceeding, the Plaintiff filed affidavits sworn 20 December 2024 and 10 March 2025. In the 2025 proceeding the Plaintiff filed an affidavit sworn 10 March 2025. Save for the updated evidence in respect to the 2025 affidavits and the chronology of the various Stewards’ inquiries and appeal hearings, the affidavits cover the same ground, and as stated above, the affidavit filed in the 2025 proceeding will be taken as encapsulating relevant evidence for the Plaintiff.
The Plaintiff’s affidavit, sworn 10 March 2025, sets out his personal circumstances, and other relevant evidence in paragraphs 26 to 31 inclusive, and is such that it can be reproduced in full as follows (although it is made in the nature more of submissions):
26. There is no real prospect that this application will be heard and determined prior to 17 May 2025, and resultantly, his appeal will be rendered nugatory.
27. The Plaintiff has been an "A" Grade professional horse trainer since 2016. The Plaintiff has trained 98 winners in that time, including winning the Alice Springs Cup, the Palmerston Sprint, the NT Derby, the NT Guineas, two Katherine Cups. The pinnacle of racing in the Northern Territory is the Darwin Cup Carnival which in 2025 will be conducted over 8 race days between 5 July 2025 and 4 August 2025. During the Darwin Cup Carnival, the prizemoney on offer is considerably greater than for the other 11 months of the year.
28. Due to the time that it generally takes to prepare a horse to race (approximately 3 months) should the stay not be granted, even if the First Defendant granted the Plaintiff a licence to train effective 18 May 2025, the remaining time would not enable the Plaintiff to have horses ready to race during the Darwin Cup Carnival.
29. The Plaintiff is a professional horse trainer and has been disqualified, consequentially upon the various disqualification orders since 8 July 2024.
30. The Plaintiff says that it is apparent that he has established that this application for review raises serious issues for determination, and that there exist strongly arguable grounds.
31. Further, it is not open for the Plaintiff to mitigate his losses nor seek compensation from any other person or body should he be successful in his applications to this honourable Court.
Evidence in turn was given by Hensler, the Chairman of Stewards, for the First Defendant. Apart from recounting the circumstances underpinning the applications and the proceeding, Hensler also recounted the Plaintiff’s past disciplinary record and training history. In summary, Hensler deposed that:
(a) The Plaintiff has not trained a horse at the Darwin Cup Carnival since 2021 because of disciplinary penalties imposed on him, although at other times he has trained horses other than at the Darwin Cup Carnival.
(b) In June 2022 the Plaintiff was suspended for various breaches of the ARR and disqualified for 15 months. The disqualification period ended on 30 September 2023.
(c) In August 2023 the Plaintiff reapplied for a trainer’s licence which was granted on 1 October 2023.
(d) On 4 April 2024 an inquiry was initiated by the Stewards with respect to an incident between the Plaintiff and Pegus which occurred on 31 March 2024. The incident had led to the Plaintiff being charged with aggravated assault and possession of a trafficable quantity of cocaine. Further, a domestic violence order (DVO) was taken out against him in respect to Pegus.
(e) On 9 April 2024 the Stewards suspended the Plaintiff’s licence pending the hearing and determination of his criminal charges.
(f) On 9 May 2024 the Stewards conducted an inquiry with respect to a urine sample provided by the Plaintiff in Alice Springs on 4 April 2024, which had tested positive for cannabis. The Plaintiff pleaded guilty and was suspended for three months commencing 9 May 2024, six weeks were stayed pending compliance with certain conditions.
(g) On 16 May 2024 the Plaintiff pleaded guilty in the Local Court to one count of possession of a trafficable quantity of cocaine and one count of aggravated assault. The Plaintiff was convicted and sentenced to a 12 month Community Corrections Order.
(h) On 21 May 2024 the Stewards conducted an inquiry into the incident the subject of the criminal convictions, the Plaintiff pleaded guilty and a three month suspension was imposed suspended for 12 months, conditional upon not being found guilty of any breach of the ARR during that 12 months.
(i) On 26 June 2024 a further incident occurred with Pegus, leading to an inquiry on 1 July 2024 which is recounted in paragraph [7] above.
Hensler’s affidavit deposes to certain other matters such as:
(a) The Darwin Cup Carnival takes place annually from the start of July to the first Monday in August. Due to the disqualification periods imposed, the Plaintiff has been unable to participate in any training activities during the Darwin Cup Carnivals for the years 2022, 2023 and 2024.
(b) Trainer’s licences are renewed annually from 1 May and run to the end of April the following year. All existing trainers who want to continue training need to renew their registrations each year.
(c) The Plaintiff, returning from disqualification, is required to apply for a fresh trainer’s licence. As such, in any fresh application, the Plaintiff will need to satisfy the First Defendant that he is a fit and proper person to be granted a licence, as per the First Defendant’s promulgated guidelines. Given the Plaintiff’s history (disqualification, DVO, criminal conviction) he may not be found fit and proper, and there is a likelihood that he will not be issued a licence.
(d) Inconvenience can be caused to horse owners, as trainers who are disqualified and are returning to training, or vice versa, need to re-establish themselves with horses, which is unsettling and a costly process.
(e) There are no spare stables at the training facility at the Darwin Turf Club to offer new trainers due to all stables being allocated to existing and interstate trainers for the 2025 Darwin Cup Carnival. Thus, there would be no stables available to the Plaintiff should he resume training.
Issues in respect to paragraph (c) above were the subject of significant submissions by Counsel with respect to what type of licence application the Plaintiff would need to apply for come 1 May 2025 if the stays were granted. Whilst not strictly relevant I am inclined to make some observations in that regard. The Plaintiff submitted that if the stays were granted, he would be an un-disqualified trainer and entitled to re-new his licence in the ordinary course. There was a suggestion that Hensler’s evidence was to a different effect and that the Plaintiff might be treated otherwise. Hensler stated at paragraph 19 of his affidavit that “A trainer, such as Mr Lefoe, who is returning from disqualification is required to apply for a fresh trainer’s licence”. I take that to be correct in circumstances where a trainer has served a period of disqualification, lost his or her licence, and needed to re-apply for a fresh licence (as the Plaintiff had done in 2023). I assume that would not be the case if the stays were granted, and the Plaintiff was restored to the status quo of an un-disqualified trainer pending judicial determination of the lawfulness of his appeals, which appeals included consideration as to the “correctness” of the disqualifications and/or penalty. Although should the judicial review applications be decided against the Plaintiff, or if remitted, and disqualification is reaffirmed, notwithstanding any renewal on 1 May 2025, I would expect that the Plaintiff would revert to the status of a disqualified trainer and therefore be subject to the need to apply for a fresh licence following the service of any period of disqualification.
Determination of the Stay Applications
(A) Serious Question to be Tried
It was conceded by the First Defendant that the Plaintiff has an arguable case that the construction of the Act provisions requires a hearing de novo with respect to appeals to the Northern Territory Racing Appeals Tribunal However, the First Defendant submitted that, assuming the Plaintiff was successful in his application and the matter was remitted to be reheard, the Plaintiff would not have good prospects of success before the Appeals Tribunal on various grounds including liability, disqualification or reducing the period of disqualification to a shorter period. With respect to this latter point, the authorities are clear that in assessing whether an applicant has raised a serious question to be tried, Courts will not necessarily speculate about the appellant’s prospect of success, given that argument is typically and necessarily attenuated,[19] unless the facts are so clearly and comprehensively established at the time of the application that the Court could conclude that the applicant had no arguable case.[20] In my view, it is even more of a stretch to assess the Plaintiff’s prospects of success on any remittal. In so far as consideration of the Plaintiff’s ultimate prospects of success on remittal are concerned further speculation would be inappropriate at this time. I am satisfied that the Plaintiff has demonstrated there is an arguable case and there is a serious question to be tried.
(B)Balance of Convenience
There was delay in bringing proceedings. In the 2024 proceeding the respective decisions of the Defendants were made on 1 July 2024 and 24 October 2024, the originating motion was filed on 23 December 2024, and the summons on the originating motion was filed on 10 March 2025. In the 2025 proceeding the respective decisions were made on 27 September 2024 and 8 January 2025, the originating motion filed on 10 March 2025, and the summons on the originating motion filed on 12 March 2025.
In both proceedings the originating motions were filed within the 60 days limitation period, and the summonses bringing the matter before the Court not until 10 or 12 March 2025. The First Defendant submitted that a relevant consideration for the grant of a stay is that an applicant diligently prosecute the proceeding challenging the decision below, or properly explain the delay. In response, the Plaintiff’s Counsel submitted, not in evidence, that in respect to the commencement of the 2024 proceeding, it was evident that the Plaintiff was awaiting a reserved second appeal decision of the Second Defendant, and until delivered there was no utility in filing proceedings, at least until his hand was forced by the imminent expiry of the limitation period. With respect to the 2025 proceeding, again only by way of submissions, the Plaintiff’s Counsel submitted that the Plaintiff had availed himself of the statutory time period as he had a right to do. That may be so, but with respect to the 2025 proceeding, the period of 8 January 2025 to 10 March 2025 lapsed before proceedings were commenced. The legal argument with respect to the challenge to the Second Defendant’s 2025 decision was effectively the same as the challenge to the 2024 decision. Proceedings could have been commenced much earlier, namely shortly after 8 January 2025, with a summons to follow. I do not accept that an entirely satisfactory explanation was given for the delay, certainly with respect to the bringing of the stay application in the 2025 proceeding. The delay in bringing an application for a stay is somewhat inconsistent with urgency, which goes to claims of prejudice or irreparable harm flowing to an applicant, which is sought to be stemmed by a stay. The resulting outcome of the delay means that the Plaintiff has served four and a half out of the six months of the disqualification period. Although not raised directly, it may be implied that the Plaintiff wanted to train horses for the Darwin Cup Carnival, which was not to occur until July/August 2025, and perhaps there was no degree of urgency for the Plaintiff to bring the proceedings until March 2025, in the hope that a stay could be granted in or by April 2025. That would be risky. Whilst I do not place a significant amount of weight on the delay by the Plaintiff, as some explanation was proffered, his failure to expeditiously bring the stay applications does not weigh in his favour.
With respect to the factor as to whether the judicial review applications would be rendered nugatory if a stay was not granted, the Plaintiff is currently under disqualification and the Plaintiff’s applications are unlikely to be heard until the Plaintiff’s disqualification period ends on 17 May 2025. In that regard, aspects of the judicial review applications would be rendered nugatory if a stay was not granted. Notwithstanding that the Plaintiff has served four and a half months of a six months’ disqualification period, this is a substantial factor in his favour.
With respect to whether the Plaintiff would suffer damage or prejudice if the stay were not granted, and not addressed by success on his judicial review applications, the Plaintiff’s evidence is set out above. The Plaintiff deposes that, if a stay was not granted and he remained disqualified until at least 17 May 2025 (when the First Defendant might grant him a licence), he would not have time to get horses ready for the Darwin Cup Carnival, and by inference, it follows that he would be deprived of the opportunity to participate and to potentially earn an income or earn prize money, which is considerably greater than the income and prize money on offer for the other 11 months of the year. That is as high as the Plaintiff’s evidence gets in that regard. The First Defendant’s response in submissions was that the Plaintiff’s evidence was impermissibly vague and selective. The First Defendant pointed to the fact that the Plaintiff has not worked as a trainer for the last three Darwin Cup Carnivals and his period of time as a trainer has been interrupted by disqualification and suspension since June 2022, he had only worked for six months and two weeks and had not effectively worked in the industry for nine months. It was submitted that, even prior to that, his work was disrupted and sporadic. In response, the Plaintiff submitted that he need not show irreparable harm or damage, but rather it would be sufficient if he suffered prejudice in the form of deprivation of the opportunity to engage in meaningful work at the most profitable time of the year for the horse racing industry in Darwin. What that work would be was speculative and left to submissions by Counsel, not evidence, and included possibly entering into partnership with other trainers or otherwise securing some kind of work during the Darwin Cup Carnival. I contrast the Plaintiff’s case to that presented in Maund namely that:[21]
Mr Maund has deposed that the commencement of the disqualification period would have irreparable effects on his business and his relationships with the owners of the racehorses he trains, as well as irreparable losses for those owners.
This factor does not weigh in the Plaintiff’s favour. However, I am prepared to accept, where the Plaintiff has deposed that by inference he wishes to partake in the Darwin Cup Carnival, and that further disqualification (if a stay is not granted) will lead to a loss of chance and some prejudice. Acknowledging that one cannot predict the future, the extent and substance of the effect of on-going disqualification, if a stay is not granted, is vague.
As noted above, where the decision in question involves a disciplinary penalty care should be taken and that factor has been advanced on the ground that the purpose of such proceedings are to protect the public, and therefore weight should be given to such matters including the seriousness of the conduct. Alternatively, it has been put that respect should be accorded to the decisions of specialist Tribunals held to determine such matters. The Plaintiff submitted that such considerations were wholly irrelevant and what was important was the interest of justice. I disagree. The point was well made in Maund,[22] as is set out at paragraph [23] above, and where Cavanough AJA applied those principles to the facts at hand:
The present case is distinguishable. The application before me is for a relatively short deferral of the commencement date of a disputed disqualification from engaging in licensed activities as a racehorse trainer. By contrast, Frugtniet involved findings that Mr Frugtniet had made representations to a magistrate that he was a legal practitioner in circumstances where he was not a legal practitioner, had twice been refused admission to the legal profession by the Board of Examiners due to a lengthy history of convictions and charges for dishonest conduct, and was the operator of a trust account under his licence as a conveyancer. While the role of a racehorse trainer is not an unimportant role in our community and misconduct by a trainer has the potential to impact on the interests of various persons and on public confidence in the integrity of racing, the nature of the risk to the public is somewhat different from that under consideration in Frugtniet.
Mr Maund had been charged with two counts of administer prohibited medication to a racehorse in defined circumstances. He had pleaded not guilty but was found guilty and the minimum period of six months disqualification was imposed. Mr Maund’s disciplinary history was not disclosed in the Court’s reasons. In contrast the Plaintiff’s disciplinary history is in evidence and is a factor that I have been asked to consider. In that regard the evidence is that there was, most recently, the incident with Pegus on 26 June 2024, a charge of misconduct, improper conduct or unseemly behaviour, leading to a disqualification for six months (including the imposition of a concurrent three months’ penalty which had been previously suspended) subsequently reduced to three months on appeal. There was the charge of betting whilst disqualified (between 10 July 2024 and 18 August 2024) leading to a sanction of 12 months disqualification, later reduced to six months on appeal. In between both incidents, the Plaintiff had also been found guilty of engaging in conduct relating to providing services in the context of thoroughbred horses whilst disqualified. With respect to the imposition of the penalty of 12 months disqualification the Stewards expressed their views on the importance of compliance with disqualification conditions and, in their view, the effect flouting such conditions has on the integrity of horse racing. The Tribunal’s reasons on appeal were not as expressly strident (possibly as evinced by a halving of the penalty on appeal), although it did note the Plaintiff’s extensive list of disciplinary matters since 2021, and two breaches of ARR 263 in a three months’ disqualification period. The First Defendant submitted, that the findings of the Second Defendant (and in so far as they upheld the views of the First Defendant) with respect to the maintenance of the integrity of the horse racing industry was an important consideration in weighing the balance of convenience in these circumstances.[23] Further, it was submitted that the granting of a stay should not create a perception that the decisions of specialist entities within the industry have a provisional quality.[24] I am inclined to agree with the sentiment expressed in Maund, that is, cases such as the discipline of a horse trainer can be distinguished from the extreme end of cases involving discipline of lawyers and doctors.[25] There is a public interest dimension in the exercise of the discretion to grant a stay in matters such as this, but cases will turn on their own facts. In this matter the evidence is that the Plaintiff has a relatively poor disciplinary record, including breaches of the ARR during periods of imposed sanction. There are breaches which relate to “recreational drugs” (the positive urine test for cannabis on 9 May 2024, and plea of guilty in respect of the criminal conviction concerning possession of cocaine) although those breaches do not appear to have attracted significant sanction. The breaches, or the recent relevant ones, do not relate to administering banned substances to horses in an attempt to gain an advantage in racing (which obviously strikes at the integrity of racing)[26] but rather the Plaintiff’s interaction with a particular individual, placing bets whilst disqualified, and engaging in services whilst disqualified. The nature of the risk posed to the public if a stay is granted is different than the risk posed by allowing doctors or lawyers to continue practicing pending an appeal, but nonetheless, it is not inconsequential. In my opinion the seriousness of the Plaintiff’s recent conduct is not at the extreme end of the scale. If a stay is granted public safety is not in immediate peril, however the integrity of the sport would not be untarnished. These factors do not weigh in the Plaintiff’s favour but not disproportionately so.
On the basis of the above and weighing all of the factors, there is a serious question to be tried. The Plaintiff has an arguable case and his application in the 2025 proceeding will be rendered nugatory if a stay is not granted. Those are primary considerations. Certainly, there was delay in bringing the proceedings which is not entirely acceptable, the degree of damage or prejudice suffered is not fully explained, as would be preferred, and there is an aspect of public protection and protection of the integrity of the racing industry arising. The matter is finely balanced, but those latter considerations do not outweigh the primary considerations. Additionally, I have recently made orders attempting to list the judicial review applications expeditiously, possibly in two months’ time (ie. by late June/early July 2025) which goes someway to ameliorating any risk. I am inclined therefore to grant the stays. I have considered if a stay could be issued on condition, for example: that should the Plaintiff be found guilty of a further breach of the ARR during the period of the stay, the stay would be lifted. That would present practical difficulties given a licence renewal needs to be made by 1 May 2025, and the appeal mechanisms in respect to breaches (which themselves are subject to legal argument), and given the period of disqualification only has one and a half more months to run. If the Plaintiff commits further disciplinary breaches, I assume they would be dealt with in the ordinary course and a sanction applied if breaches are proven.
The Plaintiff seeks four orders for stays namely, two in each proceeding. In the 2025 proceeding, the operative decision which immediately applies to the Plaintiff is the decision of the Second Defendant made 8 January 2025 upholding the decision to disqualify the Plaintiff, but varying the period of disqualification to six months, from 17 November 2024 to 17 May 2025. There shall be a stay in respect to that order. The Plaintiff also seeks a stay of the First Defendant’s order made on 27 September 2024 imposing a disqualification period of 12 months. In so far as a stay of the Second Defendant’s decision does not restore the status quo, the decision of the First Defendant should be stayed as well.
With respect to the 2024 proceeding, the Plaintiff seeks a stay of the Second Defendant’s decision. That decision was made on 24 October 2024 and disqualified the Plaintiff for three months from 17 August 2024 to 17 November 2024. The Second Defendant’s decision upheld the disqualification and varied the First Defendant’s decision, made 1 July 2024, from six months to three months. Although the Plaintiff has served the period of disqualification under the Second Defendant’s decision (it expired on 17 November 2024) he was disqualified. The Plaintiff’s prior position was one of not being disqualified. In order to preserve the status quo, it is therefore necessary to stay those decisions as well.
The result being the Plaintiff is returned to the status of an un-disqualified trainer pending the determination of his judicial review applications.
Orders
I make the following orders:
(1)There be a stay on the decisions of the Second Defendant, made 8 January 2025, finding the Plaintiff guilty of a breach of ARR 263(1)(k) and being disqualified from holding a horse trainer’s licence for six months, until the hearing and determination of the Plaintiff’s application for judicial review of those decisions or until further order.
(2)There be a stay on the decision of the First Defendant, made 27 September 2024, finding the Plaintiff guilty of a breach of ARR 263(1)(k) and being disqualified from holding a horse trainer’s licence for 12 months, until the hearing and determination of the Plaintiff’s application for judicial review of those decisions or until further order.
(3)There be a stay on the decisions of the Second Defendant, made 24 October 2024, finding the Plaintiff guilty of a breach of ARR 228(b) and being disqualified from holding a horse trainer’s licence for three months, until the hearing and determination of the Plaintiff’s application for judicial review of those decisions or until further order.
(4)There be a stay on the decision of the First Defendant, made 1 July 2024, finding the Plaintiff guilty of a breach of ARR 228(b) and being disqualified from holding a horse trainer’s licence for six months, until the hearing and determination of the Plaintiff’s application for judicial review of those decisions or until further order.
(5)I will hear the parties as to costs.
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[1] There was some initial confusion in respect to the commencement date of the proceeding as documents were filed on the day of the expiry of the 60 days limitation period, rejected and subsequently refiled. Pursuant to Practice Direction 3 of 2020, a filing party has 7 days to rectify an issue and if so the date of filing will be taken to be the date of the initial filing. On that basis, notwithstanding the originating motion was stamped filed 12 March 2025 it is taken to be filed on 10 March 2025. The parties were made aware of this and no issue was ultimately taken.
[2] The same issue applies except the originating motion was stamped filed 27 December 2024 when the original submission was 23 December 2024.
[3] The charge was that the Plaintiff had, on 17 August 2024, transported two thoroughbred horses to the Katherine Race Club to compete at a meeting that day whilst disqualified.
[4] Additionally grounds relating to failure to give adequate reasons and denial of procedural fairness were raised only in the 2024 proceeding.
[5] Maund v Racing Victoria Limited & Anor [2015] VSCA 276 (“Maund”) at [31]; Stampalia v The Stewards of the West Australian Trotting Association & Anor [1999] WASC 7 at [9].
[6] In the context of s 57 Supreme Court Act1979 (NT) see Williamson v Commonwealth of Australia & Ors (No.2) [2023] NTSC 95 per Luppino AsJ at [7], citing Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 (“Alexander” ) at 694 –695; Enterprise Gold Mines NL v Mineral Horizons NL (No 1) (1988) 52 NTR 13 at 18 –20; Sino Iron Pty Ltd v Mineralogy Pty Ltd (No 15) [2023] WASC 56; Hansen v Northern Land Council [1999] NTSC 115; Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737.
[7] Alexander at 694-5.
[8] Kalifair Pty Ltd v Digi- Tech (Australia) Ltd (2002) 55 NSWLR 737 at [17]-[20].
[9]Alexander at 694; Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737 at [18]; Brown v AEP Belgium SA (2004] VSC 255; Vaughan v Dawson (2008] NSWCA 169 at [17]; and Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57.
[10] Alexander at 694; Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130 at [5]; Bar Association of NSW v Stevens [2003] NSWCA 95 at [83].
[11] TCN Channel 9 Pty Ltd v Antoniadis [No. 2] (1999) 48 NSWLR 381; Newcrest Mining v Industrial Relations Commission [2005] NSWCA 91; Maund at [33].
[12]Alexander at 694.
[13] (1995) 184 CLR 163.
[14] [2003] NSWCA 95 (“Stevens”).
[15] Ibid.
[16] Maund.
[17] Stevens at [91].
[18] Maund at [35] and [39].
[19] Alexander at 695.
[20] Toulmin v Tasmanian Racing Appeal Board [2009] TASSC 115 at [37] citing Aboriginal Development Corporation v Ralkon Agricultural Co Pty Ltd (1987) 15 FCR 159 at 163.
[21]Maund at [37].
[22] Supra at [39-40].
[23] Harper v Racing Penalties Appeal Tribunal WA & Anor 12 WAR 337 at 348.
[24] Stampalia v The Stewards of the West Australian Trotting Association & Anor [1999] WASC 7 at [50].
[25]Stevens at [92-102] and cases mentioned therein.
[26] The list of disciplinary outcomes for the Plaintiff was attached as Annexure DH-1 to Mr Hensler’s affidavit. In June 2022 the Plaintiff was found guilty of five charges of administration of prohibited substance to horses and disqualified for 15 months expiring on 30 September 2023. He subsequently was re-licensed on 1 October 2023 and I presume met the fit and proper person test in doing so. The Plaintiff was also fined for a prohibited substance offence in 2021.
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