Noy v Greyhound Racing Victoria
[2020] VSC 422
•13 July 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 05926
| MARTIN JOHN NOY | Applicant |
| v | |
| GREYHOUND RACING VICTORIA | Respondent |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 May 2020 |
DATE OF JUDGMENT: | 13 July 2020 |
CASE MAY BE CITED AS: | Noy v Greyhound Racing Victoria |
MEDIUM NEUTRAL CITATION: | [2020] VSC 422 |
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ADMINISTRATIVE LAW – Judicial review – Victorian Civil and Administrative Tribunal – Review of decision of Racing Victoria Racing Appeals and Disciplinary Board – Greyhound Racing Victoria – Charges for possession of sheepskin for purposes in relation to greyhound racing pursuant to r 42.18 of the Greyhound Racing Victoria Rules – Whether the Tribunal failed to acknowledge the proceedings were vexatious – Whether the Tribunal failed by applying a penalty in r 42.22 – Whether this was a breach of natural justice principles – Whether documentation before the Tribunal was incomplete – Application for leave to appeal dismissed – Victorian Civil and Administrative Act 1998 ss 49, 148.
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APPEARANCES: | Counsel | Solicitors |
| The Applicant in person | ||
| For the Respondent | Mr D Hannan | Greyhound Racing Victoria |
TABLE OF CONTENTS
Background......................................................................................................................................... 1
Victorian Civil and Administrative Tribunal.............................................................................. 1
Notice of Appeal................................................................................................................................ 2
Applicable principles........................................................................................................................ 3
Affidavit material............................................................................................................................... 4
Ground 1.............................................................................................................................................. 5
Applicant’s submissions.............................................................................................................. 5
Respondent’s submissions........................................................................................................... 5
Analysis.......................................................................................................................................... 5
Ground 2.............................................................................................................................................. 7
Applicant’s submissions.............................................................................................................. 8
Respondent’s submissions........................................................................................................... 8
Analysis.......................................................................................................................................... 8
Ground 3.............................................................................................................................................. 9
Applicant’s submissions.............................................................................................................. 9
Respondent’s submissions........................................................................................................... 9
Analysis........................................................................................................................................ 10
Ground 4............................................................................................................................................ 12
Applicant’s submissions............................................................................................................ 12
Respondent’s submissions......................................................................................................... 15
Analysis........................................................................................................................................ 16
HER HONOUR:
The applicant is a registered greyhound trainer. In this proceeding he challenges orders made in the Victorian Civil and Administrative Tribunal (‘the Tribunal’) disqualifying and suspending him as a greyhound trainer.
The appeal has no real prospect of success for the reasons discussed below. Accordingly, leave will not be given for the applicant to appeal. The proceeding will be dismissed.
Background
On 5 April 2019, the respondent charged the applicant with four ‘serious offences’ in respect of r 42.18(a)–(b) of the Greyhound Racing Victoria Rules (‘Racing Rules’). Charges 1 and 3 were for having possession of two sheepskins in connection with greyhound racing. Charges 2 and 4 were for using the sheepskins as a lure to entice, excite or encourage a greyhound to pursue. The offending was alleged to have occurred more than a year prior, namely on 3 April 2018.
The charges were brought before the Racing Appeals and Disciplinary Board (‘RADB’) on 18 June 2019 following a preliminary inquiry. As is the case now, the applicant was self-represented. He pleaded not guilty to all charges. The RADB dismissed charge 1. Charges 2 to 4 were proven pursuant to r 42.22 of the Racing Rules. Rule 42.22 imposes a penalty of life disqualification unless special circumstances are established. The RADB found the applicant had not established any special circumstances and imposed a life disqualification for charges 2 to 4 commencing 18 June 2019.
Victorian Civil and Administrative Tribunal
On 12 July 2019, the applicant lodged an application for review of the RADB decision with the Tribunal. The applicant sought review of the RADB’s findings of guilt and the penalty it had imposed.
On 17 July 2019, the Tribunal ordered the RADB decision be stayed pending the final hearing (‘17 July 2019 orders’).
On 27 August 2019, there was a contested hearing at the Tribunal in relation to charges 2 to 4.
On 6 September 2019, the Tribunal made orders and gave reasons finding charges 2 to 4 proven and adjourned the matter for a penalty hearing (‘6 September 2019 orders’).[1]
[1]Orders and reasons contained in: Noy v Greyhound Racing Victoria [2019] VCAT 1387 (6 September 2019).
On 3 October 2019, the penalty hearing was conducted at the Tribunal. The applicant provided material to the Tribunal at the penalty hearing. This material had not been tendered to the RADB nor made known to the respondent. It related to the mental health of the applicant. On the basis of that material, the respondent conceded to the Tribunal that there were special circumstances relevant to the question of penalty. It submitted that the appropriate penalty was a period of disqualification consistent with recent cases and general and specific deterrence. It did not press for life disqualification. On 9 October 2019, the Tribunal received a request from the applicant for leave to file further submissions in support of his penalty plea. The request was granted and the applicant’s further plea material was accepted.
The Tribunal made the following order on penalty (‘11 November 2019 order’).[2]
(1) In relation of charges 2, 3 and 4, [the applicant] is
(a)disqualified as a greyhound trainer until 11 November 2020; and
(b)suspended from 12 November 2020 until 11 November 2021, with that suspension being wholly suspended, on condition that he does not commit any further breaches of LR 42.18 during that period.
[2]Order and reasons contained in: Noy v Greyhound Racing Victoria (Review and Regulation) [2019] VCAT 1763 (11 November 2019).
Notice of Appeal
The applicant filed a notice of appeal in this Court pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) on 3 December 2019. Section 148 of the VCAT Act allows an application for leave to appeal from a decision of the Tribunal on a question of law.[3]
[3]Goodrich v Racing Victoria Racing Appeal and Disciplinary Board [2019] VSC 248 (Niall JA).
The notice of appeal sought to appeal the 11 November 2019 order and set out three questions of law. The application for leave to appeal and appeal were initially listed concurrently on 15 May 2020. They were adjourned for a week as a consequence of the applicant seeking, and being granted leave, to add a fourth ground of appeal and file further material.[4] The four questions of law and accompanying grounds of appeal are set out below.
[4]Orders made on 12 May 2020 granted leave for the applicant to file an amended notice of appeal. It was filed 13 May 2020.
At this hearing of his application for leave to appeal, the applicant stated that he relied solely on ground 4. His amended notice of appeal solely refers to ground 4. However, he was invited to address his other grounds and did so. Accordingly, each ground is addressed below taking into account s 148 of the VCAT Act and the established legal principles that govern its application (as outlined immediately below).
Applicable principles
Section 148 of the VCAT Act provides that a party may appeal on a question of law from a proceeding. Application for leave to appeal must be made to this Court. Leave to appeal may only be granted if the Court “is satisfied that the appeal has a real prospect of success”. Sections 148(1) and 148(2A) of the VCAT Act follow.[5]
[5](emphasis added).
(1)A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding –
(a)if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others, to the Court of Appeal with leave of the Court of Appeal; or
(b)in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.
...
(2A)The Trial Division of the Supreme Court may grant an application for leave to appeal under this section only if it is satisfied that the appeal has a real prospect of success.
Recently, in Mount Atkinson Holdings Pty Ltd v Landfill Operations Pty Ltd,[6] the Court set out the well-established, fundamental legal principles governing an appeal under s 148 of the VCAT Act:[7]
The fundamental legal principles that govern an appeal under s 148 of the VCAT Act include that:
(a)the Tribunal is an expert body, and it is inappropriate to seek out error, examine the reasons in an overly legalistic manner, or to over-zealously draw inferences in order to disclose some supposed error;
(b)in reviewing a Tribunal decision, the Court exercises ‘practical as well as principled restraint’ and is not ‘concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal’s thoughts’; and
(c)the Tribunal’s reasons for the decision under review ‘are not to be construed minutely and finely with an eye keenly attuned to the perception of error’.
[6][2020] VSC 345 (12 June 2020) (‘Mount Atkinson Holdings’).
[7]Ibid [168] (citations omitted).
Affidavit material
On 19 February 2020, the applicant and counsel for the defendant attended a directions hearing in this proceeding. Orders were made requiring the applicant to file by 11 March 2020, any further affidavits that he wished to rely upon including, where applicable, a transcript of any hearing. By 25 March 2020, the respondent was required to file any affidavit material it relied upon.
The applicant filed the following affidavits, sworn on: 21 January 2020, 10 February 2020, 13 February 2020 and 11 May 2020.
The respondent filed the affidavit of Mr Marwan El-Asmar sworn 14 February 2020. It did not file any material responsive to the 19 February 2020 orders.
Neither party exhibited the transcript before the Tribunal, nor the materials before the Tribunal or before the RADB.
Ground 1
Question 1 follows:
The Senior Member Erred in that he did not acknowledge that the Charges did not include Rule 42-27 which contains the relevant details in relation to the charges relied upon in Rule 42-18.
Ground 1 contains two parts. Part 1 refers to reg 7 of the Racing (Racing Integrity Assurance) Regulations 2010. A person charged with a serious offence must be prescribed details: charge number, number and details of the rule setting out the serious offence under which the charge is laid; and the particulars of the charge. Rule 42.27 (definitional rule) was not included. Part 2 refers to the Tribunal’s inclusion of r 42.27 of the Racing Rules in the catchwords to the 6 September 2019 orders and 11 November 2019 order.
Applicant’s submissions
Rule 42.27 is in fact the crux of the proceeding. However, the charges did not refer to r 42.27. It is the only rule to include skin to become leather. Tan hide is considered artificial. Is the inclusion of rawhide and tanned leather in r 42.27 reasonable? It should not have been allowed to relate to the charges made under r 42.18.
Respondent’s submissions
Regulation 7 of the Racing (Racing Integrity Assurance) Regulations 2010 provides that details of serious offences must be provided in a charge sheet. The applicant was provided with those details in the notice of charge. They included his name, charge number and the particulars of the charges. There can be no arguable ground that the applicant did not receive charges 1 to 4.
Analysis
Some, perhaps all of ground 1, was abandoned. During the hearing, the applicant indicated that r 42.27 “does not have any relevance to today, and to this issue” and that his challenge to that rule was a separate issue.[8] It was an issue that he raised with the Ombudsman and others.
[8]Transcript of Proceedings, Noy v Greyhound Racing Victoria (Supreme Court of Victoria, S ECI 2019 05926, Ierodiaconou AsJ, 22 May 2020) page 29 lines 22–3, page 30 lines 9–19 (the applicant).
In the event that the applicant did not intend to abandon all of ground 1, his submissions as they relate to the Tribunal’s reasons are now analysed. The appeal has no real prospect of success on ground 1 for the following reasons.
Rule 42.27 provides definitions in the Racing Rules as follows.
(a) A reference in the Rules to:
(i)“any part of an animal” includes without limitation skin, hair, bone, blood, faeces, urine or flesh;
(ii)“skin” includes without limitation any leather or rawhide whether treated, tanned or otherwise;
(iii)“in relation to a greyhound” includes without limitation training, breaking in, rearing, educating, preparing to race or racing a greyhound;
(iv)“lure” means any item, natural or man-made, that is used in any way, by any person with the intention or effect of encouraging or inciting a greyhound to pursue, attack or excite it by responding to such stimuli, and ‘quarry’ and ‘bait’ shall have a similar meaning; and
(v)“training” shall include, in addition to those activities otherwise defined as ‘training’ in the Rules, any activities whereby a greyhound is exposed to any item for the purpose or effect, or that would have the likely effect, of enticing, exciting or encouraging it to pursue, entice or excite, or that causes such reaction from a greyhound. (added 14/06/2016)
...
Rule 42.18 of the Racing Rules follows.[9]
Subject to 42.19 but without derogating from LR 42.13 to LR 42.15, it is a Serious Offence for a person to:
(a)use in connection with greyhound training, education or preparation to race, or racing, any animal, animal carcass or any part of an animal whether as bait, quarry or lure, or to entice, excite or encourage a greyhound to pursue it or otherwise; or
(b)
subject to 42.25(e), attempt to possess, or have possession of, or bring onto, any grounds, premises or within the boundaries of any property where greyhounds are trained, kept or raced, any animal, animal carcass or any part of an animal for the purpose of being, or which might reasonably be capable of being, or likely to be, used as bait, quarry or lure to entice or excite or encourage a greyhound to pursue it; or (amended 01/10/2017)
[9](strikeout in original).
The Tribunal cited rr 42.18 and 42.27 in the catchwords to both the 6 September 2019 reasons and 11 November 2019 reasons. In the 6 September 2019 reasons, the Tribunal referred to r 42.27 at paragraph [16] and analysed the rule in detail in relation to charge 3 at paragraphs [32] to [59]. It was necessary to consider the definitional rule (r 42.27) in order to analyse other rules.
The applicant seeks leave to appeal against the Tribunal’s 11 November 2019 order. The accompanying reasons relate to the penalty imposed. It was not necessary for the Tribunal to restate the analysis of r 42.27 in those reasons. The Tribunal’s 11 November 2019 order refers to r 42.18, the rule under which the charge was brought. It was unnecessary for the Tribunal to refer to r 42.27 in the 11 November 2019 order. As stated above in Mount Atkinson Holdings, the Court does not “over-zealously draw inferences in order to disclose some supposed error”.
Ground 2
Question 2 follows.
The Senior Member Failed to acknowledge the Proceedings to be, Vexatious, Frivolous, Lacking in Substance and Misconceived?
Ground 2 contains two parts. Part 1 contends that, in the reasons on Special Circumstances, the Tribunal made reference to the ongoing issues the applicant is experiencing with the respondent that cause him much frustration.
Part 2 contends that the charges being serious offences were of no concern for the respondent and were laid 12 months after the time of inspection. They are frivolous. The respondent responded to an email that the applicant sent clarifying the issues he had raised. The matter was closed on 10 October 2018. The applicant objected that the points he raised were not adequately addressed. It was soon after that he was called for an interview with an Investigative Steward regarding the current matter. This ground refers to the Vexatious Proceedings Act 2014.
Applicant’s submissions
The applicant considers the charges to be vexatious. He challenged the new rules and the respondent could not resolve the issues yet closed the case. The applicant says he sent an email to the respondent on the day the new rules were brought in. The emails related to a grading matter and did not relate to the present charges. The respondent stated that they considered the matter dealt with in October 2018. Soon after, the respondent’s Investigative Steward conducted an interview regarding the current matter. He feels that he was made an example of. Rule 42.18 is in place to address cruelty. There was no animal cruelty (by the applicant). His relationship with the respondent has had a profound effect on him over a long period of time.
Respondent’s submissions
By the virtue of the Tribunal’s findings of guilt, the Tribunal did not consider the proceeding to be vexatious or without merit.[10] The charges were brought for good reason, and without any reference or reliance, or in response to any alleged grievance the applicant had or has against the respondent on an unrelated matter. There is no substance to this ground.
[10]The respondent relies on its written submissions filed 14 February 2020 on its opposition to a stay application made in this Court by the applicant.
Analysis
The appeal has no real prospect of success on ground 2 for the following reasons.
The Vexatious Proceedings Act is directed to vexatious litigants. [11] It enables the making of litigation restraint orders.[12] There is no evidence of any party having a litigation restraint order imposed upon them. The Vexatious Proceedings Act is not applicable to this proceeding or the Tribunal proceedings.
[11]Knight v Sellman [2020] VSC 320 (Cavanough J).
[12]Vexatious Proceedings Act 2014 ss 11, 17.
As to the charges being frivolous, vexatious or misconceived: this proceeding is not the vehicle for the merits or otherwise of the charges to be re-agitated. The issue here is whether or not there is a real prospect of the applicant establishing that the Tribunal erred in law. The applicant’s submission that the respondent pressed the charges 12 months after the time of inspection because of issues unrelated to the actual charges, does not identify an error of law by the Tribunal.
Ground 3
Question 3 follows:
Senior Member Failed to over-rule the application of Rule 42-22. Is the Penalty in the interest of Natural Justice?
Ground 3 contends that r 42.22 of the Racing Rules provides for an across the board penalty. Rule 42 encompasses “Welfare”. Rule 42.18 is the “Live Baiting” rule related to the “Prevention of Cruelty to animals”. It further contends: “There are no Welfare issues and there are no Cruelty issues. Is then a requirement to impose a Mandatory Penalty Fair and Just? Is a penalty even a requirement? (Misconceived, Lacks Substance)”.
Applicant’s submissions
The applicant appeals for natural justice as he says he is being made an example of. He asks where is the natural justice for a penalty when there were no cruelty or welfare concerns. He asserts he has a right to a defence and that right has been denied
Respondent’s submissions
There is no substance to ground 3. The respondent gave a concession after the applicant provided the Tribunal with a medical report. The respondent conceded that a mandatory penalty of life disqualification was not something that had to occur in this case. Rule 42.22 applied in favour of the applicant. His ground is that he should not have been penalised.
Analysis
The appeal has no real prospect of success on ground 3. The applicant has not identified the Tribunal failed to accord him natural justice in respect of the penalty it imposed for the following reasons.
The applicant had the opportunity to make submissions, both in respect of his defence, and on penalty. Some of those submissions were accepted. The Tribunal’s found there were special circumstances within the meaning of r 42.22 and that the applicant should not be disqualified for life.
Rules 42.22 of the Racing Rules follows.
Where a person is found guilty of an offence under LR42.18 the minimum penalty that must be imposed is disqualification for life unless there is a finding that special circumstances exist. (added 14/06/2016)
The Tribunal considered the applicant’s submissions on r 42.22. It noted that he made “extensive submissions to the effect that the newly amended rules operate in a way which is arbitrary and unfair” before the Tribunal.[13] The Tribunal addressed the submissions by accepting that the use of leather products would technically breach the new provisions.[14] It qualified:[15]
On the other hand, as stated earlier [with reference to the live baiting scandal of 2015], it is clear that these provisions were brought in with the intent of providing a strong and unambiguous response to an existential threat to the greyhound industry.
[13]Noy v Greyhound Racing Victoria (Review and Regulation) [2019] VCAT 1763 (11 November 2019) [33].
[14]Ibid.
[15]Ibid [34].
The Tribunal stated at paragraphs [7] and [10]:[16]
…[The Racing Rules] impose the harshest possible penalty for the use or possession of animal products in conjunction with greyhound racing. LR 42.22 provides that the minimum penalty which can be imposed for breach for LR 42.18 is disqualification for life. The only exception is if ‘special circumstances exist’.
…
On review by VCAT, [the applicant] was again found guilty of those three offences. On this occasion, however, there is additional material to be considered in relation to the question of whether there are special circumstances.
[16]Ibid [7], [10].
The Tribunal identified matters supportive of the applicant’s position concerning special circumstances and mitigation of penalty:[17]
[17]Ibid [17].
The following relevant matters which support [the applicant’s] position emerge from his submissions, and from other matters rightly acknowledged by GRV (bearing in mind [the applicant] was self represented):
i.his offending was at the lower end of the spectrum
ii.he has no disciplinary history, is of excellent character and fully co-operated with the investigation
iii.he has suffered significant adverse effects in terms of his mental health and financial hardship
These matters were relied on by [the applicant] both as bases on which special circumstances can be found, and also as matters in mitigation of penalty, without differentiation.
The Tribunal considered the applicant’s character references[18] and a report from his psychologist which described the significant adverse consequences of a life disqualification.[19] The Tribunal also outlined “Other matters raised by [the applicant]”:[20]
[The applicant] also mentioned several other matters, which are not relevant to the question of what penalty should be imposed in this case where special circumstances exist. He mentioned that he had been engaged in frustrating communications back and forth with [the respondent] for three years concerning a dispute about the grading of a greyhound. This dispute was referred to the Ombudsman. There also was a dispute between himself and [the respondent] about payment of vet fees for a dog which sustained an injury at the race track.
[18]Ibid [20]–[23].
[19]Ibid [24]–[30].
[20]Ibid [31].
The Tribunal found “that special circumstances do exist here, so that it is not mandatory to impose life disqualification under LR 42.22” and considered mitigating factors in imposing penalty.[21] The Tribunal here weighed up the factors and determined that an appropriate penalty was 12 months’ disqualification and a suspension for a further 12 months, with that suspension being wholly suspended on the condition the applicant did not commit any further breaches of r 42.18 during that period.[22]
[21]Ibid [36].
[22]Ibid [54].
Ground 4
Question 4 follows:
Original Hearing Documents Filed for VCAT Appeal Hearing were Incomplete.
Ground 4 contends that documentation presented at the RADB hearing by the applicant, entitled ‘Defense’ and ‘Special Circumstances’ were not included in the file for the VCAT hearing.
Applicant’s submissions
Documents entitled ‘Defense’ were handed up to each member of the RADB (‘defence documents’).[23] The RADB did not provide the documents to the Tribunal pursuant to s 49 of the VCAT Act. Section 49 required the RADB to lodge documents that it considered relevant to the decision within 28 days of receiving the Notice of Review application.
[23]The applicant referred to the transcript page 137 before the RADB as evidence of this. The RADB transcript was not in evidence before this Court.
The applicant was unaware at the time of hearing that the Tribunal did not have the defence documents. The primary decision-maker and Tribunal were obliged to comply with s 49: Macedon Ranges Shire v Romsey Hotel (‘Macedon Shire Ranges v Romsey Hotel’);[24] Transport Accident Commission v Bausch (‘TAC v Bausch’).[25]
[24](2008) 19 VR 422.
[25][1998] 4 VR 249 (Tadgell, Batt and Buchanan JJA).
As the defence documents were not before the Tribunal, it never considered the applicant’s defence. The Tribunal could not even see the point of dispute between the two parties. At paragraph [25] of the 6 September 2019 reasons it states that the “relevant facts in this case were not in dispute”. However, the defence documents were a vehement denial of the accusations and purpose in each charge.
It is plain from paragraph [5] of the Tribunal’s 6 September 2019 reasons that it did not consider the defence documents. They showed that the applicant constantly denied the purpose the respondent kept insinuating he had for using the sheepskin. The sheepskin was 25 years old. There was no cruelty. The kennel inspectors had no welfare issues. Yet the applicant was charged with a serious offence 12 months’ later. He asks if there was a serious offence, why didn’t the inspectors come and look at his dogs in the meantime? There were no concerns and, even when the inspectors came to see his dogs this year in January, there were no concerns and they even commented that his dogs were happy.
In the defence documents, the applicant highlighted the purpose of the sheepskin. If the intent [alleged] is not there, then he is not guilty. The purpose cannot be disproved. But then it cannot be proven. It is a situation that is null and void.
The use of the sheepskin was not to prepare dogs for racing. It was to condition them. To get them into a good condition to be able to cope with the breaking-in process. There is quite a bit of work and hard galloping for the dogs and if they are not in reasonable condition, they will never race. The sheepskin was moved along with the tooting of the car’s horn to attract the attention of the dogs and show the applicant was moving away. Once they see he is moving, they run. They run to the end of the track and then they will run back. That is what occurred in the video [referred to in the Tribunal’s reasons]. At paragraph [5], there is reference to a video of a trainer’s dogs overtaking a vehicle [with a sheepskin], then turning around and running back: if they are overtaking a vehicle then they are not ‘chasing’ the vehicle.[26]
[26]Noy v Greyhound Racing Victoria [2019] VCAT 1387 (6 September 2019) [5].
The other point is that it was impossible for the dogs to chase the car because there was a covered fence close to a metre high [between the dogs and the car]. It meant that if the dog went towards the fence it would lose sight of the vehicle and therefore lose sight of the sheepskin hanging out of the passenger window. Also, once the vehicle turns around, that window is completely out of view. By then, the dog is back at the other end [of the track] anyway. There was no chase or lure of any kind. There is no lure directly in the dogs’ view. There is no use of any lure.
The dogs run their own lure. If there are two, they compete against one another. When the applicant does it the first couple of times, he uses the sheepskin. He does not need it later. The applicant can open the gate and let the dogs go and they will run. If there is a single dog, that is why he uses the car, toots the horn, to get them started, to get them to know the process, and that was the only reason [to use the sheepskin]. There was no purpose as insinuated in the charges. The strange part is, that is what greyhound racing is: to entice a greyhound to chase a lure. None of this was considered by the Tribunal because his defence documents were not before it.
In defence document 1 the applicant highlighted the references in every charge ‘for the purpose of’. Defence document 2 refers to ‘purpose’. It describes the meaning of words (used in the charges) that he understands in the context of greyhound racing. There is quite an amount of reference in the transcript before RADB to his purpose. The transcript and all other documents were present before the Tribunal but not his defence documents.[27]
[27]Transcript of Proceedings, Noy v Greyhound Racing Victoria (Supreme Court of Victoria, S ECI 2019 05926, Ierodiaconou AsJ, 22 May 2020) page 13 (the applicant).
It was an error of law for the Tribunal not to consider that the applicant contested the purpose (alleged in the charges). This contest bears upon all charges and was not taken into account by the Tribunal. An error of law occurred because the Tribunal ignored a central issue even if no submission was directed to the point: Macedon Shire Ranges v Romsey Hotel.
The applicant refers to the definition of ‘relevant evidence’ in s 55 of the Evidence Act 2008. Plainly, the material tendered at the RADB and admitted by the Tribunal were relevant. The defence documents were relevant and were never really understood or considered by the Tribunal.
Respondent’s submissions
All of the documents that were in the respondent’s possession were provided to the Tribunal in a folder. All of the material provided to RADB and the respondent was included in the s 49 documents. A copy of the folder was provided to the applicant well in advance of the Tribunal hearing. Until the trial date, counsel had not seen the defence documents. The transcript before RADB shows something was handed up by the applicant but it is unclear what was handed up.
The Tribunal’s 17 July 2019 orders granted a stay pending the appeal hearing de novo. They included an order for the stay of the operation of penalty and an order that the respondent send all applicable materials to the Tribunal and it did so. Another order was that the applicant send to the Tribunal and the respondent all material to be relied upon. This could include a statement of his evidence or position. Those orders were made well before the hearing.
The applicant had ample opportunity before and at the hearing to put forward any evidence or submissions he wished to make. He was afforded that opportunity and took it up. The Tribunal knew the applicant was disputing his guilt.
The defence documents are in the nature of submissions and not evidence. It was irrelevant what was produced at RADB because the hearing before the Tribunal was a hearing de novo.
All the submissions the applicant has made here and in the defence documents were made by him to the Tribunal and were addressed by the Tribunal in the 6 September 2019 reasons. The hearing before the Tribunal was de novo. Paragraphs [21] and [22] of those reasons refer to the evidence from the applicant. There is no mistake alleged about that evidence or the findings from it. In fact, the respondent did not take issue with any of his evidence. It is correct when the Tribunal says at paragraph [25] that the relevant facts were not in dispute. What was in dispute was whether those facts constituted the offences charged.
The Tribunal relied not just upon the applicant’s evidence at the Tribunal, but also on being provided with the s 49 documents which included transcripts of the preliminary inquiry and kennel inspection. For instance, at paragraph [29] of the reasons it is stated that the applicant “made statements indicating that it was in fact used for that purpose”. There are two references in paragraph [29] referring back to the kennel inspection where the applicant said “Well, we drive up there and then the dog chases”. That was an important admission relied upon by the Tribunal and the applicant did not dispute that he said it. The Tribunal refers to the applicant having said at the preliminary enquiry: “Anyway, but the old dog that doesn’t [run up the slip track without prompting] well, that was… I had that hanging out there to get it to follow me”.[28]
[28]Noy v Greyhound Racing Victoria [2019] VCAT 1387 (6 September 2019) [29].
The Tribunal reasoned with the evidence in an unimpeachable way consistent with the evidence that the applicant gave at the Tribunal. The relevant facts were not in dispute. In a detailed set of reasons, the Tribunal concludes in relation to charge 3 that the use of that part of the animal, the lure, was used for the purpose of to pursue or to chase. At paragraph [34] of its reasons, the Tribunal concluded that the applicant could be guilty of charge 3 in three alternative ways. There is nothing that the applicant can point to undermine the Tribunal’s reasoning process or that finding of fact.
Analysis
The defence documents are in the nature of submissions and may be described as follows.
The first document is a typed document of four pages with the heading ‘Defence RADB’. Handwritten at the top of the first page is “Defense Document 1 at the RADB hearing [sic] This document was presented 1 copy for each panel member and 1 copy for Barrister representing GRV”. Pages one and two address each of the four charges and how the applicant says he did not use the exhibits (sheepskin) “for the purpose of enticing, exciting or encouraging greyhounds to pursue it or chase it”. The third page has a handwritten heading “Special Circumstances” followed by a typed heading stating “I am uncertain what may be considered as --Special Circumstances”. Under “Special Circumstances”, the applicant makes submissions including on the duration of time he had the exhibits (sheepskin) in his possession, that he was not aware tanned hide was in the category that had been banned, that there is no “re-approval” requirement or a transitional period, and various other matters.
The second document is a typed document of two pages with a typed heading ‘PURPOSE RADB’. Handwritten at the top of the first page is “Defense Document 2”. This document is the applicant’s submissions on the “purpose” element of the rules. It starts by detailing the applicant’s experience with the greyhound industry. He refers to the words “excite, incite, attack, lure, bait and quarry” as having their own meanings but when put together in the rules they create a suspicion of trying to arouse the dogs to become savage when that is not their normal behaviour. The applicant opines that the words used in the rules imply a callous use of animal products to create a savage dog. The sheepskin was not in his possession for such a purpose. The applicant asserts the rules are poorly written.
In defence document 2, the applicant refers to a number of areas in the racing industry that he believes are in breach of the rules, namely racing, trialing and education, and provides examples. He appears to have made oral submissions on these issues as the Tribunal refers to his “extensive submissions to the effect that the newly amended rules operate in a way which is arbitrary and unfair.”[29]
[29]Noy v Greyhound Racing Victoria (Review and Regulation) [2019] VCAT 1763 (11 November 2019) [33].
Section 49 of the VCAT Act is relevant and follows.[30]
[30](emphasis added).
(1)If a proceeding is commenced for review of a decision, the decision-maker must lodge with the Tribunal as many copies as the rules require of—
(a)the statement of reasons given by the decision-maker under section 46(1) or, if no such statement has been given, a statement containing the matters set out in section 46(2) or, in the case of the Business Licensing Authority, section 46(2)(a); and
(b)every other document in the decision‑maker's possession that the decision-maker considers is relevant to the review of the decision.
(2) Copies must be lodged under subsection (1) within 28 days after—
(a)the day on which the decision-maker received notice of the application to the Tribunal; or
(b)the day on which the decision-maker referred the decision to the Tribunal—
as the case requires.
(3)If the Tribunal considers that there are further documents in the possession of the decision‑maker that may be relevant to the review, the Tribunal may give written notice to the decision-maker requiring the decision‑maker to lodge the number of copies of those documents required by the rules with the Tribunal within the time specified in the notice.
(4)If the Tribunal considers that a statement lodged under subsection (1)(a) is not adequate, the Tribunal may order the decision-maker to lodge the number of copies required by the rules of an additional statement containing the further particulars specified in the order within the time specified in the order.
(5)This section applies despite any rule of law relating to privilege or the public interest in relation to the production of documents.
Under s 49(1)(b) of the VCAT Act, RADB was obliged to provide the Tribunal with its statement of reasons together with “every other document in [its] possession that [it] consider[ed] is relevant” to the Tribunal’s review of the decision. There are two issues here. Firstly, whether the RADB had possession of the documents the applicant says it did. Secondly, whether it considered the documents to be relevant to the Tribunal’s proceeding.
Turning to the first issue. The applicant’s affidavit of 11 May 2020 annexes the documents which state that they were presented at the RADB hearing. The parties referred to the transcript of the hearing before the RADB. It was not in evidence before this Court. Nor was the index of the s 49 documents that were provided to the Tribunal. For this analysis, I will assume that the documents were in the possession of the RADB.
The second issue is whether the defence documents were relevant to the Tribunal’s review and if so, whether there is a real prospect of the applicant establishing the Tribunal erred in law. The following authorities provide guidance on that issue.
In TAC v Bausch, the primary decision-maker did not provide all the evidence to the review tribunal. It provided part of a police file. Neither the statement of reasons nor the index of documents provided under the equivalent of s 49(1)(b) referred to the other evidence in the police file. Worse, the primary decision-maker provided a statement of reasons that was held to be coy, misleading and disingenuous.[31] An equivalent legislative provision to s 49(1)(a) was applicable.[32] Tadgell JA described the primary decision-maker’s obligations under that section to provide three types of information:[33]
…first, to set out findings on material questions of fact upon which the decision the subject of review was made; secondly, to refer to the evidence or other material on which those findings were based; and, thirdly, to give reasons for the decision.
[31]TAC v Bausch 258.
[32]Administrative Appeals Act 1984 s 36.
[33]TAC v Bausch 258.
Tadgell JA referred to the obligation of the primary decision-maker to assist the tribunal in making the review stating that it is:[34]
…imperative that its reasons for its decision, and the material that it considered in making it, should be squarely and unequivocally revealed to the tribunal… The obligations imposed on [the primary decision-maker] by s. 36(1) of the Tribunal Act are obviously designed to assist the tribunal to understand how the decision under review was made and the reasons for its making. I have no doubt that the person seeking the review (in this case the claimant) should ordinarily be entitled to the same information in order to enable the decision to be investigated and appraised. To set out findings of fact, and the basis for them, is but part of the tripartite obligation imposed upon the decision-maker by s. 36(1)(a) to make a statement rendering the decision intelligible and enabling an intelligent criticism of it.
[34]Ibid 259–60; applied in Macedon Shire Ranges v Romsey.
In TAC v Bausch, the parties had the whole police file although neither provided it to the Tribunal and could have. It was nevertheless held to be a miscarriage of justice that the primary decision-maker did not provide that evidence:[35]
…the tribunal was not placed in the position it should have been in to make a proper and effective review as the Tribunal Act required it to do. How could it have been in such a position when it was ignorant of critical material on which the claimant relied and which the commission had had and to which, without saying so, it had declined to give effect?
[35]Ibid 262.
Tadgell JA held that it was absurd to suppose the tribunal could properly review when material going to a central issue, and which the primary decision-maker had rejected, were not before the tribunal.[36] Tadgell JA considered whether or not this amounted to a denial of natural justice on the basis that the tribunal itself did not request the material, but held that the preferable ground was a miscarriage of justice on the basis that the primary decision-maker had led the tribunal into error.[37]
[36]Ibid 266.
[37]Ibid 267.
There is a critical distinction between TAC v Bausch and the circumstances here. The documents that were not provided by the primary decision-maker to the Tribunal were not in the nature of evidence. They were in the nature of submissions. This is not a case of the primary decision-maker leading the Tribunal into error by only selectively providing evidence. I do not consider there has been a miscarriage of justice.
In Macedon Ranges Shire v Romsey Hotel, copies of community survey forms received into evidence by the primary decision-maker were not provided to the tribunal. Nor was a submission by a party on economic and social impact that had been filed with the primary decision-maker in accordance with applicable legislation.[38] The Court of Appeal held that the community survey forms and submissions were relevant to the tribunal’s review of the primary decision-maker’s decision and should have been filed.[39] The Court of Appeal held that the tribunal had erred in law by failing to consider relevant evidence. It held that the tribunal ought to have considered all the evidence before the primary decision-maker regarding community opposition and it could have obtained such evidence from the primary decision-maker or a party.[40]
Although the review hearing was a hearing de novo, the [primary decision-maker’s] reasons should have been given considerable weight. As we noted earlier, [it] has the administrative responsibility for the [relevant legislation]. It has both specialist expertise and unique experience in dealing with the issues which arise under the Act… the tribunal could not properly discharge its “review” function without evaluating the central element of the [primary decision-maker’s] reasoning…[41]
[38]Macedon Ranges Shire v Romsey Hotel 427.
[39]Ibid.
[40]Ibid 437.
[41]Ibid 437 [53].
Turning now to the issues here.
The defence documents were in the nature of submissions. They were however relevant and should have been provided to the Tribunal if they were in the possession of the RADB. Nonetheless, I do not consider there was any impact on the fair and proper determination of the Tribunal proceeding. The applicant had the opportunity to make submissions before the Tribunal and did so.
The Tribunal’s reasons indicate that the applicant did make submissions that were considered by the Tribunal. Paragraph [5] of the 6 September 2019 reasons should not be read in isolation. The Tribunal referred to the use of the sheepskin by the applicant and the video of the other trainer.[42] The Tribunal considered the purpose, nature and use of the sheepskin used by the applicant.[43] The reasons indicate that the Tribunal was aware of the applicant’s long participation in the industry. Indeed, paragraph [1] of the 6 September 2019 refers to his involvement in the industry for almost 50 years. Paragraph [2] refers to no welfare issues emerging. The Tribunal’s considered the applicant’s submissions on cruelty and held that:[44]
…It is clearly the case that there was no animal cruelty involved in [the applicant’s] breaches here.
[42]Noy v Greyhound Racing Victoria [2019] VCAT 1387 (6 September 2019) [5].
[43]Ibid [2]–[7], [21]–[23], [40]–[42].
[44]Noy v Greyhound Racing Victoria (Review and Regulation) [2019] VCAT 1763 (11 November 2019) [46].
The reasons do not support the applicant’s reading that the Tribunal failed to consider that he emphatically contested the purpose for which the sheepskin was used. Paragraphs [21]–[24] consider the applicant’s contentions. They refer to the use of the sheepskin by the applicant to trigger the dog’s instinct to run and the use of the sheepskin for young inexperienced greyhounds.
The applicant contends that paragraph [25] incorrectly finds the facts were agreed. Paragraph [25] refers to the respondent not taking issue with certain facts asserted by the applicant. The reasons indicate that the Tribunal was aware that the applicant was disputing whether or not the sheepskin was used for the purpose alleged. It made a finding of fact that the applicant made statements about the second sheepskin being used for a particular purpose based on the evidence before it which, as the respondent says, included previous statements made by the applicant.[45] The applicant’s contention that he could not be found guilty because his ‘intention’ could not be established must therefore be rejected.
[45]Noy v Greyhound Racing Victoria [2019] VCAT 1387 (6 September 2019) [29]. See also [30], the applicant accepted he had possession of the sheepskin.
The Tribunal held that charges 2 and 4 (the lure charges) were made out on the basis that possession of the sheepskin was admitted and “might reasonably have been capable” of being used in breach of the rules.[46] The reasons also consider whether the dogs were pursuing the sheepskin. The Tribunal concluded the sheepskin was possessed for the purpose of being used to entice, excite or encourage a greyhound to pursue it (charge 4).[47] The Tribunal considered the word ‘lure’.[48] The Tribunal found that that although sheepskin is not what the industry previously regarded as a lure, it is now regarded as a ‘lure’ as a result of the legislative changes post 2016, namely the Greyhound Racing Victoria Rules.[49] Similarly, the Tribunal also considered the word ‘chase’.[50] The Tribunal certainly heard the applicant on these issues. Indeed, the Tribunal concluded that there is a need to amend the rules to make it easier for the industry to understand them.[51]
[46]Ibid [26] (emphasis omitted).
[47]Ibid [29].
[48]Ibid [36]–[48].
[49]Ibid [41]–[48].
[50]Ibid [51]–[53].
[51]Ibid [56]–[59].
The next issue is whether the Tribunal ought to have obtained the defence documents. Under s 49(3) of the VCAT Act, the Tribunal had the power to give written notice to the RADB to provide further documents in its possession that the Tribunal considers may be relevant to the review. In comparison to Macedon Shire Ranges v Romsey Hotel, the submissions were not in response to a legislative provision.
In Goodrich v Racing Victoria Racing Appeals and Disciplinary Board,[52] Niall JA considered the VCAT Act in relation to an appeal from the RADB in relation to horse racing.[53]
It is worth emphasising at this point that the facility to obtain documents, either under s 49 of the VCAT Act or pursuant to a summons issued by the Tribunal, exists only for the purpose of enabling the proper and fair determination of a proceeding in the Tribunal…
[52][2019] VSC 248.
[53]Ibid [76].
Given the nature of the defence documents, I do not consider that it was necessary for the proper and fair determination of the proceeding in the Tribunal for it to obtain them.
There is no real prospect of the applicant establishing the Tribunal erred in law on ground 4.
Finally, even if there was a breach of s 49 of the VCAT Act, and leave were given to appeal, there would be no error of law as “[t]he error made by the Tribunal did not affect its conclusion… and so was not material to the outcome”.[54]
[54]Michos v Eastbrooke Medical Centre Pty Ltd [2019] VSC 248 [9] (Richards J).
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