Pedrana v NSW Racing

[2013] NSWSC 2000

Supreme Court

New South Wales

Medium Neutral Citation:

Pedrana v NSW Racing [2013] NSWSC 2000

Hearing dates:

17-18/12/2013

Decision date:

19 December 2013

Before:

Rothman J

Decision:

1. The defendant, its servants or agents, be restrained from preventing or restricting, directly or indirectly, any one or more of the plaintiffs herein from attending or treating a thoroughbred racehorse in training or racing for a reason that includes the operation of, or their failure to be licensed under, Local Rule 82C of the Rules of Racing.

2. The proceedings be expedited.

3. The matter be listed for hearing on 4/02/2014.

4. Costs be costs in the cause.

Catchwords:

ADMINISTRATIVE LAW - STATUTORY CONSTRUCTION - interlocutory relief - alleged inconsistency between two State statutes or subordinate legislation - regime to be implemented involved abrogation of rights otherwise held - orders issued.

Legislation Cited:

Thoroughbred Racing Act 1996
Veterinary Practice Act 2003

Cases Cited:

ABC v O'Neill [2006] HCA 46; (2006) 227 CLR 57

Category:

Interlocutory applications

Parties:

Dr Ross Gregory Pedrana (1st Plaintiff)
Dr David Russell Johnson (2nd Plaintiff)
Dr Allan Charles Frogley (3rd Plaintiff)
Dr Nicholas John Kannegieter (4th Plaintiff)
Dr Christopher Gerard Lawler (5th Plaintiff)
Racing NSW (Defendant)

Representation:

Counsel:
AJ McInerney SC / O Jones (Plaintiffs)
C Newlinds SC / JS Emmett (Defendant)
Solicitors:
Holman Webb (Plaintiffs)
Yeldham Price O'Brien Lusk (Defendant)

File Number(s):

2013/372880

Judgment

1. HIS HONOUR: The plaintiffs, each of whom is a veterinary scientist (vet), seek urgent interlocutory relief restraining the defendant, NSW Racing, from implementing a licensing system for vets attending thoroughbred racehorses. The system is due to be implemented in mid-January 2014.

1. On 19 December 2013, the Court issued interlocutory orders and reserved reasons. These are the reasons for the orders that issued.

Facts

1. On 7 November 2013, the defendant announced the implementation under its Rules of Racing of Local Rule 82C (the Rule) purportedly pursuant to its power conferred by the Thoroughbred Racing Act 1996, the effect of which was to require veterinary practitioners, each of whom are licensed or registered under the Veterinary Practice Act 2003, to hold a further licence under the Thoroughbred Racing Act.

1. The Rule is, according to its terms, and after some negotiation between the parties, to operate on and from 15 January 2014.

1. Each of the plaintiffs derives significant income from treating thoroughbred racehorses in training in New South Wales. As a consequence, each of the plaintiffs will be significantly affected by the promulgation and operation of the Rule.

1. The Rule prohibits a trainer of a thoroughbred racing horse from allowing that horse to receive veterinary services from any person other than a vet licensed under the Thoroughbred Racing Act. The stated purpose of the Rule is the integrity of horseracing in New South Wales and the confidence of the public in that integrity.

1. Under the terms and conditions of the licence that the plaintiffs would be required to obtain if their employment or engagement by trainers of thoroughbreds were to continue, there would be imposed significant restrictions on rights or liberties that may presently be enjoyed. First, the vet would be agreeing to submit to the authority of the Principal Racing Authority (more commonly "Stewards").

1. Secondly, the Stewards may revoke the licence without the giving of any reasons for the revocation. Thirdly, the vets, if licensed, would be agreeing not to make any public statement or comment concerning any matter under investigation.

1. A vet that was licensed under the Thoroughbred Racing Act could be the subject of inquiry by the Stewards, have their person, equipment or premises searched by the Stewards, be subject to reasonable directions of the Stewards and be penalised for a breach of any of the Rules.

1. The plaintiffs would voluntarily undertake each of the foregoing impositions, but economic necessity based upon their current source of income would necessitate such licensing.

Basis for plaintiffs' remedy

1. Essentially, the plaintiffs argue that the Rule is beyond power. First, the plaintiffs argue that the terms of the rule-making power (section 14(2)(b) of the Thoroughbred Racing Act), which enables Racing NSW, relevantly, to license "a race club, or an owner, trainer, jockey, stable hand, bookmaker, bookmaker's clerk or another person associated with racing...", does not permit the promulgation of a rule governing vets. The plaintiffs submit that, properly construed and understood in its context, veterinary scientists are not, within the meaning of the Act, "another person associated with racing".

1. Secondly, the plaintiffs submit that the Rule (and the associated regulation relating to investigation and penalties) is directly inconsistent with the Veterinary Practice Act, which has different and independent investigation provisions and penalties.

1. Thirdly, the plaintiffs submit that there is an indirect inconsistency between the Thoroughbred Racing Act and the Veterinary Practice Act, on the basis that the latter "covers the field by entitling persons to work as veterinary practitioners and providing for the disciplining" of such persons.

1. Lastly, the plaintiffs submit that the Rule (and its associated regulation) is inconsistent with freedom of trade at common law and, it seems, as a consequence invalid.

Consideration and Conclusion

1. The balancing exercise involved in determining whether an interlocutory injunction should issue no longer involves a separate consideration of whether the remedy sought is arguable and the balance of convenience. The modern approach to the grant of interlocutory injunctions is whether the moving party has shown a sufficient likelihood of success to justify the preservation of the status quo (ABC v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [65]). In other words, the balancing exercise is a synthesis of each of the questions dealing with whether the case is arguable and whether the balance of convenience favours the issue of injunctive relief on an interim basis.

1. The defendant rightly concedes, at least for the interlocutory proceedings, that the plaintiffs' case is arguable, but submits that the Rule has a limited immediate impact and the Court would not, or should not, grant the plaintiffs the interlocutory relief they seek.

1. The evidence before the Court, together with the concessions made by the parties, indicates that there is no fee or other cost associated with the application for a licence. Nor is there any evidence to suggest that the plaintiffs will face any difficulty in obtaining a licence under the Thoroughbred Racing Act. Nevertheless, the required submission by the vets inherent in the application for and gaining of a licence, to which reference has already been made, is a significant subjugation of liberties that interferes with the private rights of each of the plaintiffs. If at a final hearing the Rule were found to be invalid, the defendant may have, in effect and by colour of office, forced each of the plaintiffs to forego legal rights.

1. In my view, such imposition, if arguably invalid and unlawful, is a significant weight in the balancing exercise associated with the grant of interlocutory relief.

1. Having said that, I do not consider, on an admittedly preliminary view, that the plaintiffs have a strong case for invalidity. On its face, the regime imposed by the Thoroughbred Racing Act seeks to cover a very different field from that sought to be covered by the Veterinary Practice Act.

1. Further, the proposition that veterinary scientists treating racing horses are not persons "associated with racing" is a difficult one on which to succeed.

1. Moreover, the different investigation procedures and penalties associated with the two statutes seemed to cover and be directed at quite different conduct. Nevertheless, the Court, because of the urgency of the interlocutory proceedings, has not studied fully the ramifications of the investigation procedures and penalties associated with each statute.

1. Lastly, prima facie, the State legislature is entitled to interfere with freedom of trade at common law. If the legislation and the rule promulgated under it were valid, the fact, if it were the fact, that the scheme interferes with freedom of trade would not, of itself, render it invalid.

1. Notwithstanding the foregoing, the imposition of this regime is a sufficient inconvenience that the plaintiffs should be relieved of its effect pending the final resolution of the matters that the plaintiffs arguably seek to pursue. I am comforted in this approach by the knowledge that the interlocutory injunction will have effect for approximately two weeks, the final hearing having been listed for the first week of February 2014.

1. For the foregoing reasons, the Court issued its orders on 19 December 2013.

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Decision last updated: 09 January 2014