Maund v Racing Victoria Ltd
[2015] VSCA 276
•8 October 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0085
| RICKY MAUND | Applicant |
| V | |
| RACING VICTORIA LIMITED (ACN 096 917 930) | First Respondent |
| And | |
| THE VICTORIAN CIVIL & ADMINISTRATIVE TRIBUNAL | Second Respondent |
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| JUDGES: | CAVANOUGH AJA | |
| WHERE HELD: | MELBOURNE | |
| DATE OF HEARING: | Not applicable. Determined on the papers pursuant to Rule 64.15(5)(b) of the Supreme Court (General Civil Procedure) Rules 2005 | |
| DATE OF JUDGMENT: | 8 October 2015 | |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 276 | First revision: 12 October 2015 |
| JUDGMENT APPEALED FROM: | Not applicable. | |
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ADMINISTRATIVE LAW – Occupational licensing – Disqualification of horse trainer – Appeal to VCAT unsuccessful – Application for stay of disqualification – Identification of operative decision – Powers and principles for granting a stay – Stay granted – Form of stay order – Racing Act 1958 (Vic), ss 3, 5F, 5G, 83OH, 83P, 83Q – Victorian Civil and Administrative Tribunal Act1998 (Vic), ss 50, 51, 118, 148, 149 – Supreme Court (General Civil Procedure) Rules 2005 (Vic), r 64.39 – Supreme Court (Miscellaneous Proceedings) Rules 2008 (Vic), Part 3 of Order 4.
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| APPEARANCES: | Counsel | Solicitors |
| Not applicable. |
CAVANOUGH AJA:
This is an application for a stay in relation to a decision of the Victorian Civil and Administrative Tribunal (‘VCAT’) pending the hearing and determination of an application for leave to appeal against the decision. The application for the stay has been referred to me by the Registrar of the Court of Appeal for determination on the papers under Rule 64.15(5)(b) of the Supreme Court (General Civil Procedure) Rules 2005.[1]
[1]See also Supreme Court Act 1986, s 14D(1).
The applicant, Mr Ricky Maund, is a thoroughbred racehorse trainer, licensed by Racing Victoria Limited (‘RVL’) under its Rules of Racing. RVL is the controlling body for thoroughbred horse racing in Victoria. Its constitution is governed by the Racing Act 1958.[2] Its Rules of Racing are recognised by that Act and are to some extent governed by and enforceable under that Act.[3] RVL is the active respondent to the application for leave to appeal.
[2]See, in particular, s 3 (definition of Racing Victoria), s 3A, s 3B and Schedule 1.
[3]See, in particular, s 3 (definitions of controlling body and RV Racing Appeals and Disciplinary Board) and ss 5F, 5G, 24A(1)(b), 83P and 83Q; Riley v Racing Victoria [2015] VSC 527 (1 October 2015) [4] (Bell J).
RVL has filed a notice (under Rule 64.11(1)(b) of the Supreme Court (General Civil Procedure) Rules 2005) of intention not to contest the application for a stay. Nevertheless, I need to consider the proper subject matter of any stay; what power the Court may have to grant a stay; the principles relating to the exercise of the power; whether a stay should be granted; and the proper form of any order.
Procedural background
At approximately noon on 18 April 2015 two stewards employed by the Integrity Division of RVL, Mr Melville and Mr Scarlett, were conducting a race day stable inspection of Mr Maund’s stables. Mr Maund had three horses entered to race at Caulfield that afternoon. As a result of Melville and Scarlett’s observations at the stables, RVL stewards commenced an inquiry under the Rules of Racing. Under cover of a letter dated 27 May 2015, RVL (or its stewards) charged Mr Maund with a breach of two Rules of Racing, being rules prohibiting the administration of medication to a racehorse in defined circumstances. The charges fell to be heard by the Racing Appeals and Disciplinary Board (‘the Board’), which is established under the Rules of Racing and which is itself recognised, and to some extent governed, by the Racing Act 1958.[4] Mr Maund pleaded not guilty to each charge. The hearing before the Board took place over two days, on 15 and 16 July 2015, with the decision being handed down on 20 July 2015. The Board imposed as a penalty the minimum penalty that could be imposed under the Rules, namely a disqualification for a period of six months from engaging in licensed activity. It appears that the disqualification was expressed to commence at midnight on Monday 27 July 2015.
[4]See especially Racing Act 1958 (Vic) s 5G.
Mr Maund applied to VCAT pursuant to s 83OH of the Racing Act 1958 for review of the decision of the Board. He also applied to VCAT for a stay of the Board’s decision.
The application for a stay of the Board’s decision was heard by VCAT constituted by Senior Member Smithers on 27 July 2015. According to Mr Maund’s outline of submissions later filed in support of the present application, RVL conceded during the application before VCAT on 27 July 2015 that the ‘grounds of appeal’ that had been specified by Mr Maund in relation to his application to VCAT for review raised serious issues to be tried, although I note that, generally speaking, VCAT conducts reviews of administrative decisions de novo on the merits.[5] In any event, it appears that on 27 July 2015 Senior Member Smithers granted a stay of the Board’s decision. Presumably, the stay order was made under s 50(3) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘the VCAT Act’). I have not been provided with a copy of, or any express statement of the terms of, the stay order made by Senior Member Smithers, but I would infer that the stay was to last until the hearing and determination by VCAT of the application for review or prior order of VCAT.
[5]VCAT succeeded to the administrative review jurisdiction of the former Victorian Administrative Appeals Tribunal. The general nature of that jurisdiction is very similar to that of the Commonwealth Administrative Appeals Tribunal. In that regard, see Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
The substantive application for review was heard by VCAT constituted by her Honour Judge Jenkins, Vice President, on 11 August 2015. Mr Maund asserts that the evidentiary material before her Honour Judge Jenkins was exactly the same as the evidentiary material that had been before the Board. On the other hand, it appears that there may have been some additional evidence.[6] However that may be, on 21 August 2015 VCAT made an order in the following form:
[6]See Maund v Racing Victoria Limited (Review Regulation) [2015] VCAT 1303 (21 August 2015) [12(d)] and [13] (Judge Jenkins V-P).
NOTE
On 20 July 2015, the Racing Appeals and Disciplinary Board found Ricky Maund guilty of breaching AR 178E (Charge 1) and AR 178AA (Charge 2) and in respect of Charge 1, imposed the minimum penalty of disqualification for a period of six months, commencing at midnight on Monday, 27 July 2015.
ORDER
1.The findings of the Racing Appeals and Disciplinary Board and determination as to penalty made on 20 July 2015, in regard to Ricky Maund, are affirmed.
2.The stay of the decision of the Board, ordered on 27 July 2015, is hereby extended to Monday 31 August 2015.
It is not clear what power her Honour Judge Jenkins relied on to make the order for an extension of the stay of the Board’s decision. Perhaps her Honour was of the view that s 50(3) of the VCAT Act continued to be available on the basis that, despite the review being otherwise concluded by virtue of the order contained in paragraph 1 of her Honour’s order, the decision of the Board remained ‘a decision that is the subject of a proceeding for review’ within the meaning of s 50(3). In any event, it appears that her Honour considered that the decision of the Board, not her Honour’s own decision on the review, would continue thereafter to be the operative and effective decision in relation to Mr Maund’s licence as a racehorse trainer. Hence paragraph 2 was expressed to extend the prior stay of the Board’s decision, not to stay her Honour’s own (substantive) decision. Her Honour apparently did not purport to exercise the power conferred by s 149 of the VCAT Act to stay her own decision pending any appeal that might be instituted under Part 5 of the VCAT Act.
In seeking to discern whether, immediately after the making of her Honour Judge Jenkins’ decision, Mr Maund’s licence was affected (or liable to be affected) by the Board’s decision or by her Honour’s own substantive decision (or both), it is necessary to have regard to (among other things) sub-ss 51(3) and (4) of the VCAT Act, which provide:
(3) Subject to subsection (4), a decision of a decision-maker as affirmed or varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a decision-maker—
(a) is deemed to be a decision of that decision-maker; and
(b) subject to any contrary order by the Tribunal, has, or is deemed to have had, effect from the time at which the decision under review has or had effect.
(4) Subsection (3)(a) does not apply for the purposes of—
(a) an application to the Tribunal for review of the decision; or
(b) an appeal under Part 5.
It seems to me that it is arguable that, at least for the purposes of the pending application to this Court for leave to appeal, the effective and operative decision in relation to Mr Maund’s licence is the substantive decision contained in paragraph 1 of the order made by her Honour Judge Jenkins, notwithstanding that that decision was merely a decision to affirm the findings and penalty of the Board.[7] I note that his Honour Justice Bell in Kracke v Medical Health Review Board & Ors (General)[8] observed (in the context of a discussion regarding the Charter of Human Rights and Responsibilities Act 2006 (Vic)) that:
When exercising the review jurisdiction under its legislation, the tribunal stands in the shoes of the decision-maker. Its function is to make the correct or preferable decision on the merits in the circumstances of the individual case. The tribunal’s review jurisdiction is substitutionary not appellate and includes a full power of fact-finding.
I will not linger to consider whether s 51(3)(b) has any consequences for the time as at which any relevant decision is to be taken to have had effect.[9] However, it seems to me that, out of caution, if a stay is to be granted by this Court, it should encompass the order contained in paragraph 1 of her Honour Judge Jenkins’ order, and also the Board’s decision.
[7]But see and compare Mulholland v Australian Electoral Commission [2014] FCA 916 (1 September 2014) [58]-[73] (Mortimer J).
[8][2009] VCAT 646 (23 April 2009) [312].
[9]See D Hertzberg, ‘The Date of Effect of Merits Review Decisions in Social Security and Other Contexts’(2010) 64 Australian Institute of Administrative Law Forum 18.
Because VCAT was constituted by a Vice-President, any appeal under s 148 of the VCAT Act against VCAT’s order of 21 August 2015 lay to the Court of Appeal of this Court, not to the Trial Division.
However, on 31 August 2015, being the last day of the extended stay period referred to in paragraph 2 of Judge Jenkins’ order, counsel for Mr Maund appeared before the Honourable Justice Cameron sitting in the Practice Court of the Trial Division. No originating process or summons had been filed. Nevertheless, a solicitor, Mr Poulton, appeared for RVL. Counsel for Mr Maund made an application for a stay of some kind. Judging by the terms of the order which Justice Cameron later made, it seems that counsel for Mr Maund referred to s 148 of the VCAT Act and also to s 118 of that Act, the latter on the theory, presumably, that s 118(2) confers an implied power on the Supreme Court to make an order affecting the time as at which an order of VCAT would otherwise come into effect.[10] It is not completely clear what position RVL took, but there is nothing to indicate that RVL opposed the grant of a stay. In any event, her Honour Justice Cameron made orders, among others, that:
[10]Whether s 118(2) of the VCAT Act confers any such power may be doubted. More likely, the subsection merely recognises that the Supreme Court may, from other sources, have power to make orders that would result in a temporary or permanent cessation of the effect of a decision of VCAT.
1. The stay of the decision of VCAT on 21 August 2015 is hereby extended to 9 September 2015.
2. That the application pursuant to s 118 of the Victorian Civil and Administrative Tribunal Act 1998 is adjourned for hearing in the Practice Court on 9 September 2015.
Her Honour also made procedural orders relating to the filing of an application for leave to appeal against the decision of VCAT. The authenticated order recites a Trial Division proceeding number, namely S CI 2015 4727.
On 8 September 2015 Mr Maund, by his solicitors, filed an originating motion (in proceeding S CI 2015 4727) and a summons returnable in the Practice Court, each of which, so far as relevant, sought relief in the following terms only:[11]
Pursuant to s.118 of the Victorian Civil and Administrative Tribunal Act 1998, an order staying the order of the Racing Appeals and Disciplinary Board of 20th July 2015 until the hearing of the Applicant’s Leave to Appeal Application by the Court of Appeal.
[11]But see previous footnote.
On 9 September 2015,[12] sitting in the Trial Division Practice Court, his Honour Justice McDonald made orders in S CI 2015 4727, by consent, as follows:
[12]The authenticated order is erroneously dated 10 September 2015.
1.The stay of the decision of Vice President Judge Jenkins of the Victorian Civil and Administrative Tribunal (“VCAT”) is extended pending the determination of the application for a stay by the Court of Appeal.
2.The applicant’s application dated 8 September 2015 pursuant to section 118 of the Victorian Civil and Administrative Act 1998 is dismissed.
3.By 4:00pm on 15 September 2015 the applicant file and serve his application to the Court of Appeal for a stay of the decision of VCAT, including any materials and submissions in support of the stay.
4.By 4.00pm on 18 September 2015 the respondent file and serve any materials and submissions by way of response.
5. Costs be reserved.
There may be questions as to the meaning, subject matter, operation and legal effectiveness of the various stay orders made by VCAT and the Trial Division respectively. However, I need not further consider any such questions. The broad intent of each stay order was clear enough, namely that Mr Maund was to be permitted to continue training for the time being. And it seems that RVL either did not oppose, or consented to, each stay order. Moreover, as already indicated, RVL does not contest the present application for a stay.
Application to the Court of Appeal for leave to appeal
By a document dated 7 September 2015, which was accepted by the Registry of the Court of Appeal for filing on 10 September 2015, Mr Maund commenced (within time) his application to the Court of Appeal for leave to appeal.
Apparently, the only direct subject of the application for leave to appeal as drafted is the decision of VCAT constituted by her Honour Judge Jenkins given on 21 August 2015. That is to say, the application does not purport to include the decision of the Board as a direct subject of the application for leave to appeal.
The proposed grounds of appeal are stated as follows:
(1)The learned Judge denied the Applicant procedural fairness in refusing to require the proper particularisation of the Respondents case against the Applicant.
(2)The learned Judge misdirected herself as to the proper considerations for the drawings [sic] of inferences in a circumstantial case.
(3)The learned Judge erred in fail [sic] to draw a Jones v Dunkel inference against the Respondents [sic] for failing to adduce evidence from the witness Bryers as to the relevant matters to which he could attest.
(4)The learned Judge erred in refusing the application of Counsel for [the] Applicant to exclude from evidence the hearsay statements of the witness Bryers.
(5)The learned Judge erred in taking into account material upon which no weight ought have been placed when drawing inferences as to the guilt of the Applicant.
(6)The learned Judge erred in concluding that the guilt of the Applicant had been established to the requisite standard.
The orders sought in the application are as follows:
(1)The appeal is allowed.
(2)The orders of the Tribunal be set aside and, in lieu thereof, it be ordered that the decision of the Racing Appeals and Disciplinary Board be quashed.
(3)That the charges brought by the First Respondent be dismissed.
(4)That the First Respondent pay the Applicant’s costs of the Application/Appeal.
The six proposed grounds of appeal are elaborated upon in a document entitled ‘written outline’ dated 9 September 2015 which has been accepted by the Registry as Mr Maund’s written case under Rule 64.03(1)(b) of the Supreme Court (General Civil Procedure) Rules 2005.
Application to the Court of Appeal for a stay
Mr Maund’s application to the Court of Appeal for a stay is the subject of a separate document headed ‘Application’ dated 15 September 2015. The substantive contents of that document are as follows:
I wish to apply for the following orders:
(1)The stay of the decision of Vice President Judge Jenkins of the Victorian Civil and Administrative Tribunal (VCAT) is extended pending the determination of the application for leave to appeal by the Court of Appeal.
(2) Liberty to apply.
(3) Costs be reserved.
This application is made on the following grounds:
1.That the balance of convenience falls in favour of the extension of the stay.
The application for the stay is supported by an affidavit of Mr Maund sworn 15 September 2015 and an affidavit of the same date sworn by Alexandra McFarlane, a paralegal in the employ of Mr Maund’s solicitors.
In short, so far as presently relevant, Mr Maund deposes that he is 43 years of age; that he has been a licensed jockey or trainer since the age of 16; that for the last 15 years he has been a professional, licensed racehorse trainer; that he currently has 17 horses in full work; and that he earns his livelihood from licensed activities as a horse trainer.
Mr Maund further deposes that, in telephone and other communications between about 3.00 pm and 3.27 pm on 31 August 2015, a named officer of the Integrity Department of RVL informed him that if ‘the stay granted by VCAT’ was not ‘extended’ beyond midnight that night then the terms of Mr Maund’s disqualification would come into effect at that time and that each of the 17 horses would, unless previously transferred to other trainers’ stables, be stood down for 28 days effective from 1 September 2015.
Mr Maund proceeds to say that without the ‘stay extension’ sought, the preparations of each and every horse would be deleteriously affected to the extent that the preparations would be wasted in full in circumstances where the average cost of each horse in training is approximately $4,000 per month; that the combined owners of the horses would suffer losses totalling hundreds of thousands of dollars; that the relationship between Mr Maund and his owners would be in many cases irreparably damaged; and that Mr Maund’s business would be irreparably damaged.
Ms McFarlane, in her affidavit, deposes that the solicitors had engaged the approved transcriber of VCAT proceedings to transcribe the audio of the VCAT hearing and that the transcript was expected in two or three days. She further deposed that the Registry of the Court of Appeal had advised that the application for leave to appeal was not yet listed and was not likely to be listed until term 1 or term 2 of 2016.
An outline of submissions dated 15 September 2015 was filed and served in support of the application for the stay. Under the heading ‘legal principles’, it is submitted that the question before the court is: where lies ‘the balance of convenience’? This part of the outline continues:
2The jurisdiction of this Honourable Court is ample, but extraordinary and ought only be exercised in exceptional circumstances. Immutable principles fettering the Court’s discretion to stay have not [been] identified, the circumstances of the individual case will determine whether the Court’s discretion ought be invoked. It is clear that the onus to establish the exercise of the Court’s discretion is upon the Applicant.[13]
3Matters that Courts have considered to be of weight in a particular case include:
(a)That to grant a stay is necessary to prevent the exercise of rights of appeal being rendered futile or their exercise in circumstances where restoration of the status quo cannot be achieved;[14]
(b)That whether the decision appealed against will be rendered nugatory is the dominant principle;[15]
(c)Whether there is a serious issue to be tried;[16]
(d)Whether there is a community or public interest to be taken into account;[17]
(e)The period of time that will elapse before the hearing of the Appeal;[18]
[13]Citing Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (1998) 72 ALJR 869, 870-871 (Hayne J); Medical Practitioners Board v Lal [2008] VSCA 264 (5 December 2008) [15]–[17].
[14]Citing Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (1998) 72 ALJR 869, 870-871 (Hayne J); Medical Practitioners Board v Lal [2008] VSCA 264 (5 December 2008) [15]–[17]; Scandi Pty Ltd v Wright [2000] VSC 149 (14 April 2000); Brown v AEP Belgium SA [2004] VSC 255 (23 June 2004).
[15]Citing Bell & Eager v Liquor Licensing Victoria & Swapnil [2000] VCAT 214 (31 January 2000) [12] (Kellam J).
[16]Ibid [13].
[17]Ibid [14].
[18]Ibid [15].
The outline asserts that, in his application to VCAT for review, Mr Maund had put forward three grounds. Those grounds corresponded to the grounds numbered 3, 4 and 6 (set out above) which now form part of his proposed appeal to the Court of Appeal. These were also the grounds which, during the application before Senior Member Smithers for a stay, RVL conceded were such as to raise serious issues to be tried.
In conclusion, it is submitted by the applicant that the balance of convenience falls in favour of ‘the extending of the stay of the orders of the RADB of 20th July 2015 until the determination of the Applicant’s Application for Leave to Appeal by the Court of Appeal’.
Powers and principles applicable to the grant of a stay
I consider that this Court has the power to grant an effective stay in this matter if satisfied that it should do so.
I turn first to the provisions of the VCAT Act. Sections 50 and 149 of the VCAT Act are not available sources of power because they confer power on VCAT only. Section 118 of the VCAT Act is probably in the same category. In any event, Mr Maund’s purported application to the Trial Division under s 118 has been dismissed by consent. Section 148 of the VCAT Act is the provision under which the underlying proceeding in this Court has been brought. While the section gives this Court wide powers to make orders ‘on an appeal’, it confers no express power to grant a stay.[19]
[19]Section 148(7)(d) of the VCAT Act empowers the court to make any other order it considers appropriate ‘on an appeal’, which would include making incidental orders to give effect to the substantive decision. I doubt that this power extends to granting a stay pending the determination of an application for leave to appeal and any subsequent appeal.
However, Part 3 of Order 4 of the Supreme Court (Miscellaneous Proceedings) Rules 2008 has the effect that where an application for leave to appeal or an appeal in respect of a decision of VCAT lies to the Court of Appeal (e.g. where VCAT was constituted by the President or a Vice President), Order 64 of Chapter 1 of the Supreme Court (General Civil Procedure) Rules 2005 applies to the application or appeal except where otherwise provided. In turn, Rule 64.39 of the Supreme Court (General Civil Procedure) Rules 2005 provides in effect that, although an application for leave to appeal or an appeal does not operate as a stay of execution or of proceedings under the decision appealed from, the Court of Appeal may otherwise order. Hence, a stay order could be made in this case pursuant to Rule 64.39. In addition, I consider that this Court has the power to order a stay in the exercise of its inherent jurisdiction to preserve the subject matter of a proceeding, just as the Trial Division might do in the case of an application for leave to appeal, or an appeal, to the Trial Division from VCAT.[20]
[20]Brown v AEP Belgium SA (2004) 21 VAR 244 (Hollingworth J). See also R v Tait (1962) 108 CLR 620.
Accordingly, this Court could, in appropriate circumstances, grant a stay in order to preserve the status quo pending the hearing and determination of the application for leave to appeal (and any subsequent appeal).
The principles relating to the exercise of the power to grant a stay pending appeal have been widely discussed in the authorities. In Maher v Commonwealth Bank of Australia,[21] in the context of a pending appeal from a judgment of a court in a commercial matter, Dodds-Streeton JA set out the following frequently cited[22] summary of principle:[23]
[21][2008] VSCA 122 (‘Maher’) [19]-[27].
[22]See, eg, Sandri v O’Driscoll (as personal representative of the estate of Francis Dean Humphries deceased) [2013] VSCA 281 (8 October 2013) [39]-[42].
[23]Because the pending appeal in Maher was from a court, as distinct from a tribunal, Rule 66.16 of Chapter 1 of the Supreme Court (General Civil Procedure) Rules 2005 was also available as a source of power to grant a stay.
19The principles governing a stay of execution of judgment pending the hearing and determination of an appeal are well established.
20Prima facie, a successful party is entitled to the benefit of the judgment obtained below and the presumption that the judgment is correct. The applicant for a stay therefore bears the onus of demonstrating that a stay is justified.
21In Cellanteand Ors v G Kallis Industries Pty Ltd[24] (‘Cellante’), Young CJ (with whom Brooking J agreed), cited with approval[25] the observation of Mahoney JA (with whom Moffit P and Glass JA agreed) in Re Middle Harbour Investments Ltd (in liq)[26] that:
[24][1991] 2 VR 653.
[25]Ibid, [1991] 2 VR 653, 655.
[26]Re Middle Harbour Investments (in liq) (Unreported, New South Wales Court of Appeal, Mahoney JA, 15 December 1976).
…where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party.
22Young CJ concluded that an applicant for a stay under Rule 66.16 must show special or exceptional circumstances to take the case out of the general rule that an appeal does not operate as a stay.
23The Court has a wide discretion, which is not circumscribed by rigid rules. It should take into account all the circumstances of the case.
24In Scarborough’s v Lew’s Junction Stores Pty Ltd[27] (approved in Cellante), Adam J recognized that special circumstances might exist where a successful appellant would be deprived of the fruits of the appeal if a stay of execution were not granted. In such a case, the appeal might be rendered nugatory.
25In Cellante, Young CJ stated that special circumstances would ‘exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed’.[28]
26An appeal could be rendered nugatory in that sense in a variety of ways. The test could be satisfied where a defendant appeals and there is a real risk that the plaintiff would remove the proceeds of the judgment from the jurisdiction. Similarly, special circumstances may be recognised where, for example, although the respondent is solvent, the subject matter of the appeal is, in substance, irreplaceable.
27The prospect that the appeal may be rendered nugatory must be balanced against the principle that the successful party is entitled to the fruits of the judgment. A stay should not be granted unless there is at least an arguable ground of appeal, although otherwise speculation as to the ultimate prospects of success is usually inappropriate.
[27][1963] VR 129.
[28]Cellante and Ors v G Kallis Industries Pty Ltd [1991] 2 VR 653, 657 (Young CJ).
In the present case, the application for leave to appeal has been brought pursuant to s 148 of the VCAT Act. While s 148 provides that a party may ‘appeal’ on a question of law from an order of VCAT, the jurisdiction conferred on the Court of Appeal in relation to the ‘appeal’ is original, not appellate. That remains the case notwithstanding that the general rules applying to appeals to the Court of Appeal in Order 64 of Chapter 1 of the Supreme Court (General Civil Procedure) Rules 2005 are also applicable to this proceeding.[29] The nature of the Court of Appeal’s jurisdiction was described by Maxwell P, Weinberg JA and Kyrou AJA (as his Honour then was) in Medical Practitioners Board v Lal[30] in the following terms:[31]
…the appeal is to the Court of Appeal, but it involves nevertheless an exercise of original jurisdiction, in the nature of judicial review, to determine whether the tribunal made errors of law that vitiated its order.
[29]As noted above, Order 64 is picked up by Part 3 of Order 4 of the Supreme Court (Miscellaneous Proceedings) Rules 2008, which deals with appeals to the Court of Appeal from tribunals such as VCAT.
[30](2009) 23 VR 702.
[31]Maher [2008] VSCA 122 [24]-[26]; Medical Practitioners Board v Lal (2009) 23 VR 702, 705 [8].
It is possible that the nature of the jurisdiction that this Court is exercising in this proceeding, being its original jurisdiction as distinct from its appellate jurisdiction, might affect the principles relating to the grant of a stay. The general principle that a successful party ought not be deprived of the fruits of a judgment is arguably less applicable in relation to an application for judicial review, on a question of law, of an administrative decision. In this case, VCAT’s decision was made in the exercise of its administrative review jurisdiction, not in the exercise of its original (inter partes) jurisdiction. The respondent at VCAT was RVL, a regulatory body. A regulatory body may not be in the same category as an ordinary private litigant for present purposes.
However, I need not finally determine on this application the nature of any differences regarding the principles applicable to a proceeding brought in the Court of Appeal under s 148 of the VCAT Act. Even if the ordinary principles relating to Rule 64.39 of the Supreme Court (General Civil Procedure) Rules 2005 do apply, whereby special or exceptional circumstances would need to be shown,[32] then such circumstances can be found here.
[32]This requirement is not expressly stated in any relevant rule and is said to be peculiar to Victoria: see Kakavas v Crown Melbourne Limited [2010] HCASL 207 (22 September 2010) [9].
As noted by Dodds-Streeton JA in Maher, special or exceptional circumstances may be able to be found where the proposed appeal would be rendered nugatory in the absence of a stay.[33] On the uncontested affidavit evidence of Mr Maund, I am satisfied that if Mr Maund’s six month disqualification from engaging in licensed activity as a racehorse trainer were to commence now there would be a real risk that success in his proposed appeal could not restore him substantially to the position he is in now.[34] 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.
[33]See also Neate v Thoroughbred International Marketing Pty Ltd (2012) 34 VR 318 (‘Neate’).
[34]See Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220, 222-23.
Further, to the extent necessary, I am prepared to accept that Mr Maund has satisfied any requirement to show that there is at least an arguable ground of appeal.[35] This test has been variously formulated,[36] but the differences in expression do not affect the present case. As mentioned above, Mr Maund asserts that RVL conceded during the application before VCAT on 27 July 2015 that the ‘grounds of appeal’ in that proceeding raised serious issues to be tried.[37] He asserts that those grounds remain relevant now. His assertion in this regard have not been contradicted in this application. Further speculation as to Mr Maund’s ultimate prospects of success would be inappropriate.[38] In Neate v Thoroughbred International Marketing Pty Ltd, Mandie JA and I said:[39]
On an application for a stay in a heavy factual case such as the present, this court will usually not have the evidentiary materials necessary to consider the merits of the grounds of appeal in any detail (and that is the situation here). Indeed, unless it appears that there is no reasonable ground of appeal or that the appeal is not bona fide, the court will generally focus on the matters relevant to the enforcement of the judgment in question rather than matters relevant to its validity or correctness.[40]
Those comments are applicable in the present case too. Although any appeal under s 148 of the VCAT Act is limited to a question of law, factual and evidentiary questions can be involved, as they are in this case.[41] Further, the material before this Court does not yet include the transcripts from the proceedings before the stewards, the Board and VCAT.[42]
[35]See Maher [2008] VSCA 122 [27]. It is also noted for completeness that this Court has recently given consideration to the test that is applicable to a grant of leave to appeal under an application pursuant to section 148 of the VCAT Act following the introduction of sections 14A to 14D of the Supreme Court Act 1986 (Vic). There remains an unresolved issue as to whether the test is that VCAT’s decision is attended by sufficient doubt to justify a grant of leave to appeal, or whether it is that the appeal has a real prospect of success in the sense that it is not fanciful: Ikosidekas v Karkanis [2015] VSCA 121 (27 May 2015); 24 Hour Fitness Pty Ltd v W & B Investment Group Pty Ltd [2015] VSCA 216 (20 August 2015) [2]. In some instances, the applicable test for a grant of leave to appeal might affect the relevant assessment of the applicant’s prospects of success for the purposes of granting a stay. However, this controversy does not need to be resolved for present purposes.
[36]Maher [2008] VSCA 122 [27]; Andrews v John Fairfax & Sons Ltd [1979] 2 NSWLR 184; Seifert v Chaudhary [2012] VSCA 17 (10 February 2012) [14]; Neate (2012) 34 VR 318.
[37]Subject to my comment, noted above, that generally speaking VCAT conducts reviews de novo on the merits.
[38]See Maher [2008] VSCA 122 [27].
[39]Neate (2012) 34 VR 318, 321 [8].
[40]J C Scott Constructions v Mermaid Waters Tavern (No 1) [1983] 2 Qd R 243, 248 and the cases there cited.
[41]See, eg, Karakatsanis v Racing Victoria Ltd (2013) 306 ALR 125.
[42]See affidavit of Alexandra McFarlane sworn 15 September 2015, [2]; and see RVL’s written case filed 28 September 2015, passim.
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,[43] 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.[44] In coming to their decision to refuse the stay,[45] their Honours gave considerable weight to the need for public protection.
[43][2011] VSCA 184 (17 June 2011) (‘Frugtniet’).
[44]Frugtniet v Law Institute of Victoria Ltd [2011] VSCA 184 (17 June 2011) [12]. See also, Nelson v Legal Services Commissioner [2013] VSC 486 (6 September 2013).
[45]More particularly, the decision was to refuse to extend an interim stay order that was made by this Court pending the hearing of the application.
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.[46] 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.
[46]I note the affidavit evidence of Alexandra McFarlane sworn 15 September 2015, at [3], to the effect that the Registry of the Court of Appeal has advised that the application for leave to appeal is not likely to be listed until term 1 or term 2 of 2016. However, RVL has not suggested that there would be any difficulty in ensuring that a full six month period of disqualification would be served in the event that a stay were granted but the application for leave to appeal, or the proposed appeal, were dismissed: see VCAT Act, s 148(7)(d); Mildura Rural Council v VABDS Developments Pty Ltd [2012] VSC 542 (14 November 2012) [77]; E Nekvapil, Thomson Reuters, Victorian Administrative Law, vol 1 (at update 166) [VCAT.148.480].
Determination
I consider that the granting of a stay in this case is justified in all of the circumstances referred to above. I am reassured in that assessment by the fact that RVL does not seek to be heard against such an order.
Proposed form of order
I turn now to consider the appropriate way of framing the stay order. Paragraph 1 of VCAT’s order is an order that the decision of the Board is ‘affirmed’. As mentioned above, there is some uncertainty as to whether the decision of the Board has now been overtaken and subsumed by the decision of VCAT, or whether the Board’s decision continues to operate on its own authority. That uncertainty is not dispelled by the provisions of the VCAT Act or the authorities referred to above.
It is appropriate to stay the order contained in paragraph 1 of the order of her Honour Judge Jenkins.
Out of caution, I would not express any order as an extension of any previous or current stay order. Arguably, for the reasons mentioned above, one or more of the previous stay orders may not have been legally effective. In any event, it appears that some or all of the previous stay orders have been made in the exercise of statutory powers reposed in VCAT rather than in this Court. I propose to make an independent order.
Although the Board is established under the rules of RVL, the Board itself is not a party to this proceeding. So, on one view, rather than stay (also) the decision of the Board, the Court might grant an interlocutory injunction restraining RVL from giving effect to the decision of the Board. However, no such injunction has been sought and it would not be appropriate to grant such an injunction without hearing from the parties. Moreover, I am prepared to proceed on the basis that, even though the decision of the Board is not directly the subject of the application for leave to appeal, this Court’s power (including its inherent power) to preserve the status quo pending the hearing and determination of the application for leave to appeal extends to a power to stay the decision of the Board.[47]
[47]See Brown v AEP Belgium SA (2004) 21 VAR 244 (Hollingworth J); R v Tait (1962) 108 CLR 620.
Accordingly, I consider that the stay order should be expressed in a form that addresses the decisions of both VCAT and the Board. If either party considers that there is a gap in the order as I propose to make it, that party could seek an appropriate variation in the exercise of the general liberty to apply which I intend to grant. Further, if there were any undue delay in the prosecution of the application for leave to appeal, RVL could exercise that general liberty by seeking a termination of the stay order.
Conclusion
I will make an order (including a recital) in the following terms:
OTHER MATTERS
1 This order is made in the exercise of all enabling powers of the Court, including the powers conferred by s 148 of the Victorian Civil and Administrative Tribunal Act 1998, Part 3 of Order 4 of the Supreme Court (Miscellaneous Proceedings) Rules 2008, Order 64 of the Supreme Court (General Civil Procedure) Rules 2005 (including, in particular, Rule 64.39) and the Court’s inherent jurisdiction.
2 The object of this order is to preserve the capacity of the applicant to act as a licensed racehorse trainer until the hearing and determination of his pending application to the Court of Appeal for leave to appeal or further order.
ORDER
1 The order contained in paragraph 1 of the order made by the Victorian Civil and Administrative Tribunal (‘VCAT’) constituted by her Honour Judge Jenkins on 21 August 2015 in VCAT proceeding Z562/2015 (whereby VCAT affirmed the findings and determination as to penalty made on 20 July 2015 in regard to the applicant, Ricky Maund, by the Racing Appeals and Disciplinary Board established under the Rules of Racing of Racing Victoria Limited (‘the Board’)) is stayed until the hearing and determination of the applicant’s pending application to the Court of Appeal for leave to appeal (‘the pending application’) or further order.
2 The findings and determination as to penalty made by the Board on 20 July 2015 in relation to the applicant, Ricky Maund, are stayed until the hearing and determination of the pending application or further order.
3 The parties have general liberty to apply.
4 Costs are reserved.
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CERTIFICATE
I certify that this and the 19 preceding pages are a true copy of the reasons for judgment of Cavanough AJA of the Court of Appeal of the Supreme Court of Victoria made on 8 October 2015.
DATED this twelfth day of October 2015.
Associate
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