Mulder v Victoria Racing Club
[2000] VSC 91
•16 March 2000
| SUPREME COURT OF VICTORIA | |
| PRACTICE COURT | Not Restricted |
No. 4658 of 2000
| NATHALIE MELANIE CAROLINE MULDER | Plaintiff |
| v. | |
| VICTORIA RACING CLUB | Defendant |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 MARCH 2000 | |
DATE OF JUDGMENT: | 16 MARCH 2000 | |
CASE MAY BE CITED AS: | MULDER v. VICTORIA RACING CLUB | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 91 | |
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CATCHWORDS: Horse racing – Rules of racing – Licensed person taking part in race meeting conducted other than in accordance with the rules of racing – Racing Act 1958, ss.6 and 19 – Inquisition – No serious issue to be tried.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. W. Gillies | Maurice Blackburn Cashman |
| For the Defendant | Dr. C. Pannam Q.C. with Mr. I.G. Waller | Clayton Utz |
HIS HONOUR:
The plaintiff, Nathalie Melanie Caroline Mulder, is a stablehand and strapper by occupation and holds a strapper's licence issued by the defendant, the Victoria Racing Club.
On Sunday 27 February 2000 the plaintiff rode horses which took part in racing conducted by the Geelong branch of the Apex charity club on the beach at Ocean Grove. The plaintiff did not have the permission of the VRC to do so. The Apex club was licensed to hold the meeting pursuant to s.19 of the Racing Act 1958, the relevant sub-section of which reads:
"19(1)Notwithstanding anything to the contrary in this Part any club or association or body of persons may with the previous consent, with or without conditions, in writing of the Minister or of any person duly authorized in that behalf by the Minister (whether generally or in any particular case) and on payment of the prescribed fee hold a fixed sports gathering on any land whatsoever not being within 25 kilometres of the General Post Office Melbourne, approved by the Minister or any authorized person aforesaid for the holding of such gathering on any specified day including Anzac Day."
Mixed sports gathering is defined in s.3 of the Act. The relevant paragraph of the definition for present purposes is paragraph (a) which reads:
"Mixed sports gathering means -
(a)a meeting for foot racing, bicycle races or any other games, exercises, pastimes or contests of a kind usually conducted, carried on, contested or decided on any land whatsoever to which persons are admitted either at all times or only at certain times (whether on payment of an entrance fee or charge or otherwise) for the purpose of taking part in or witnessing any such races, games, exercises, pastimes or contests, being a meeting at which -
(i)the races which take place include races of one or more of the following kinds, namely, horse races, pony races and harness races;
(iii)no horse or pony ridden or driven by a jockey who is licensed with the Victoria Racing Club or a driver registered with the Harness Racing Board is permitted to take part in any horse races, pony races or harness races."
On 7 March the plaintiff received a letter from the Victoria Racing Club requiring her to attend a stewards inquiry on 9 March. The plaintiff attended that meeting with an adviser, a Mr Bill Shorten.
The plaintiff's account of her attendance at the meeting that day appears in paragraph 15 and following of her affidavit sworn this day which reads:
"15.I was accompanied by an adviser, Mr Bill Shorten, who appeared on my behalf at the inquiry as, although I am fluent in English, it is not my native tongue and, at the inquiry, I needed someone to speak on my behalf who was more fluent in English than I was.
16.I answered the questions of the inquiry and agreed that I had ridden at the meeting. The trainer for whom I worked, Steve McKinnon, also gave evidence at the inquiry. I believe Mr Bill Shorten, on my behalf, advised the stewards that they lacked jurisdiction to convene an inquiry as there had been no contravention of the rules of racing.
17. I believe that the stewards conducted the inquiry nevertheless."
On 14 March 2000 the plaintiff received the following letter from the Chief Executive of Racing Victoria.
"Dear Ms Mulder, I write to advise that the VRC Committee will consider on Friday, 17th of March 2000, a report from the Stewards in respect of your participation in the Ocean Grove Cup Meeting held on the 27th February 2000.
I confirm that as I understand you have given evidence to a Stewards Inquiry that you did participate at that meeting, you are not eligible to hold a registration as a stablehand in accordance with Australian Rule 6 unless otherwise determined by the Committee.
I will advise you of the Committee's decision following its meeting on Friday next."
Today the plaintiff filed a writ and summons in the Court naming as defendant the Victoria Racing Club. By the summons the plaintiff seeks the following orders:
1.That the defendant be restrained from enforcing the rules of racing against the plaintiff pending the hearing and determination of the proceeding, and;
2.That pending the hearing and determination of the proceeding the plaintiff be permitted to continue in her employment with Steve McKinnon, licensed trainer.
The application for injunctive relief is opposed by counsel for the VRC.
The case for the plaintiff is that in riding at the race meeting at Ocean Grove the plaintiff committed no breach of the rules of racing because despite the content of the rules of racing, in particular Rule 6A, the plaintiff was authorised to take part in the meeting by virtue of the provisions of s.19 of the Act.
The case for the VRC is that that is simply not so, that any licensed person, as the plaintiff is, is bound by s.6 of the Act and the provisions of the rules of racing, in particular Rule 6A.
The relevant sub-section of s.6 reads:
"1.Unless this Part otherwise provides, a race meeting for horse racing or horse racing or greyhound racing may only be held -
(a)on a racecourse licensed under section 24 for that type of racing; and
(b)by The Victoria Racing Club, the Harness Racing Board or the Greyhound Racing Control Board, as the case requires, or by a club licensed under section 24A to conduct race meetings for that type of racing on that racecourse; and
(c)in accordance with the rules for the time being in force of The Victoria Racing Club or the Harness Racing Board or the Greyhound Racing Control Board, as the case may be."
Rule 6 of the rules of racing states:
"6(a)These Rules apply to all racing held under the management or control of a Principal Club, and shall, together with such Rules (not being repugnant to or inconsistent with these Rules) as may from time to time be made by the Principal Club in its territory, be read and construed as the rules of the Principal Club in such territory and, subject to the provisions of A.R.35, shall apply to all races held under the management of a Principal Club or any registered Club and to all meetings registered by a Principal Club;
(b)Unless the Committee otherwise determines, if any race meeting is not held under these Rules -
(i) any horse taking part shall ipso facto be disqualified;
(ii)any person taking part therein shall be ineligible to enter a horse for any race, or to hold or to continue to hold any licence or registration under these Rules;
(iii)any person who acts in connection therewith as promoter, organiser, president, chairman, secretary, treasurer, committee member or in any advisory or official capacity, shall be debarred from acting in any official capacity in any race meeting, and any horse in which he has an interest shall be ineligible to race at any registered meeting;
(c)Any question not provided for by these Rules shall be determined by the Committee of the Principal Club concerned."
The view I take of the matter is that as a licensed strapper the plaintiff was bound by the rules of racing and was prohibited, therefore, from taking part in any race meeting not held under the rules. The fact that unlicensed persons, that is unlicensed under the rules of racing, may obtain the consent of the Minister to hold a mixed sports gathering has no bearing whatsoever on the obligations placed upon the plaintiff by the rules of racing. All the Minister is doing by giving his consent to the holding of a meeting such as the one at Ocean Grove is authorising persons who would otherwise not be entitled to hold such a meeting to do so. In my opinion, such a consent has no effect on the rights or obligations of persons licensed under the rules. For that reason alone I would refuse the plaintiff's application.
However, there is another ground upon which I would also refuse the application, and that is this: During the course of the hearing today counsel for the VRC informed the Court that the stewards have, in fact, recommended to the committee that the committee "otherwise determine"; in other words, that a number of other persons in a similar situation to the plaintiff and the plaintiff shall continue to hold their licences despite their participation in the Ocean Grove meeting. As a matter of probability the committee will act on that recommendation. The plaintiff's summons will be dismissed with costs to be taxed and paid by the plaintiff.
(Discussion ensued.)
I do not consider that the action of the plaintiff is or was so unwarranted as to justify a punitive order in relation to the costs. I think that the order I have made that she simply pay the defendant's costs of the application is appropriate in the circumstances.
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