Moodie v Racing Integrity Commissioner - [2017] VSC 175

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 00476

DAVID JOHN MOODIE	Plaintiff
v
RACING INTEGRITY COMMISSIONER	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 March 2017
DATE OF JUDGMENT:	7 April 2017
CASE MAY BE CITED AS:	Moodie v Racing Integrity Commissioner
MEDIUM NEUTRAL CITATION:	[2017] VSC 175

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JUDICIAL REVIEW — Discovery — Racing Integrity Commissioner’s investigation report — Actual bias alleged — Documents relevant to Commissioner’s investigation and decision-making — Immunity of Commissioner from being compelled to disclose decision-making process — Whether documents otherwise discoverable — Racing Act 1958 ss 37A, 37B, 37BA, 37C, 37E; Evidence (Miscellaneous Provisions) Act 1958 ss 14, 15, 16 and 21A.

PRACTICE AND PROCEDURE — Confidential exhibits — Report of Commissioner and transcript of plaintiff’s interview — Whether should remain confidential — Discretionary considerations — Supreme Court (General Civil Procedure) Rules 2015 O.28 r (2)(a).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S K Wilson QC	Joy Popovska & Associates
For the Defendant	Ms M Richards SC and Mr J Bayly	Marlo Baragwanath Victorian Government Solicitor

HIS HONOUR:

The plaintiff, Mr David Moodie, seeks judicial review of an investigation and report by the defendant, the Racing Integrity Commissioner (‘the Commissioner’), Mr S Perna. Mr Moodie, at the time of the investigation was the Chairman of Racing Victoria Ltd (‘RVL’).

The issues for determination are whether Mr Moodie’s request for discovery against the Commissioner should be granted and whether the Commissioner’s application that two exhibits to Mr Moodie’s affidavit, being the Commissioner’s report and Mr Moodie’s transcript of evidence given to the Commissioner, should be granted.

In the proceeding, Mr Moodie seeks an order that the Commissioner, in conducting an investigation under the Racing Act 1958, in respect of two matters and finding that those matters were substantiated did not accord him fair treatment. Mr Moodie also seeks:

2. An Order that in reporting adversely to the plaintiff in his report on 13^th of December 2016 the defendant failed to observe the requirements for procedural fairness and failed to act in partially.
3.An Order that insofar as the said report of the defendant found the matters inquired into in relation to the plaintiff substantiated those findings be quashed.
4.An Order that in publishing a press release on 16 December 2016 confirming his findings of the matters referred to in paragraph 1a and b were substantiated, the defendant accedes his authority and acted unfairly to the plaintiff and failed to act impartially.

The two matters that the Commissioner investigated were:

That whilst a RVL Director David Moodie inappropriately disclosed information regarding cobalt investigations being undertaken by RVL into licensed racehorse trainers Kavanagh and O’Brien to [Peter] Moody, who was at that time, a licensed racehorse trainer, thus compromising or potentially compromising the integrity of the RVL cobalt investigations and the conduct of disciplinary and/or prosecution hearings or actions arising out of those investigations.
That…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] VSC 175
Decision Date: 7 April 2017

CaseChat Overview and Summary

The plaintiff sought judicial review of decisions made by the defendant, the Racing Integrity Commissioner, under the Racing Act 1958. The plaintiff alleged that the Commissioner had displayed actual bias during an investigation into the plaintiff’s conduct. The plaintiff sought discovery of documents that would support their allegation of bias and challenge the decision made by the Commissioner. The Supreme Court was tasked with determining whether certain documents should be disclosed and whether the Commissioner was immune from being compelled to disclose his decision-making process.

The court had to consider whether the Commissioner’s investigation report and the transcript of the plaintiff’s interview were subject to legal professional privilege or otherwise discoverable. The court also had to consider the immunity of the Commissioner from being compelled to disclose the process by which he made his decision. The court had to balance the public interest in transparency and accountability against the need to protect the integrity of the decision-making process.

The court held that the Commissioner’s investigation report and the transcript of the plaintiff’s interview were not subject to legal professional privilege and were otherwise discoverable. However, the court also held that the Commissioner was immune from being compelled to disclose the process by which he made his decision. The court found that the discretionary considerations under the Supreme Court (General Civil Procedure) Rules 2015 weighed in favour of maintaining the confidentiality of the documents. The court dismissed the plaintiff’s application for judicial review.

The court made no orders as to costs.

Orders