Pullicino v Harness Racing Board of Victoria
[1999] VSC 533
•9 December 1999
SUPREME COURT OF VICTORIA
PRACTICE COURT Do not Send for Reporting Not Restricted
No. 7727 of 1999
| GAITA PULLICINO | Plaintiff |
| v. | |
| THE HARNESS RACING BOARD VICTORIA AND OTHERS | Defendants |
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JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 DECEMBER 1999 | |
DATE OF JUDGMENT: | 9 DECEMBER 1999 | |
CASE MAY BE CITED AS: | PULLICINO v. HARNESS RACING BOARD | |
MEDIA NEUTRAL CITATION: | [1999] VSC 533 | |
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CATCHWORDS: Practice and procedure – Application for interlocutory injunction – No probability that at trial the plaintiff will be held entitled to relief – No serious issue to be tried.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. N. Moshinsky QC | F. Butera & Co. |
| For the 1st named Defendant | Dr. C. Pannam QC with Mr. R. Smith | Kenna Croxford & Co. |
| For the 2nd, 3rd, 4th and 5th named Defendants | Mr. J. Ruskin QC with Mr. S. McLeish | Department of State and Regional Development |
HIS HONOUR:
I have before me a summons filed in the court by the plaintiff, Gaita Pullicino, whereby the plaintiff seeks an interlocutory injunction prohibiting the defendants, or any of them, from giving effect to the ruling and enforcing the disqualification and monetary penalty imposed on the plaintiff by the Racing Appeals Tribunal on 1 October 1999.
The defendants to the proceeding are the Harness Racing Board Victoria, the Racing Appeals Tribunal, Her Honour Judge Curtain, Mr B. Pearce and Mr P. Beaumont. The third, fourth and fifth defendants were at the relevant time, members of the second defendant, the Racing Appeals Tribunal.
The background to the present application may be summarised as follows. On 24 February 1999, the plaintiff drove the horse, Nuclear Ash, when it won a harness race at Geelong. The race, of course, was conducted in accordance with the Rules of harness racing. As at that date, the registered trainer of the horse was one George Schembri. A routine post-race urine sample was taken from the horse after the race by a veterinary surgeon at the direction of the Stewards in charge of the meeting. On 15 March 1999, the Harness Racing Board received a report from an analyst indicating that a prohibited substance, Ketorolac, was present in the urine sample. Following receipt of the report, Stewards called on the registered trainer, Schembri, advised him of the analyst's findings, and advised him that an enquiry would be held in due course concerning the results of that analysis.
On 17 April 1999 Schembri advised Stewards that, notwithstanding that he was the registered trainer of the horse, the person who had truly trained the horse was the plaintiff. By letter of 19 April 1999, the Chairman of Stewards informed the plaintiff that the Stewards would conduct an inquiry into the bona fide ownership, training and racing of the horse, Nuclear Ash, between 30 August 1998 and 10 April 1999, and would then conduct an inquiry into the analyst's report. The letter reads:
"Dear Mrs Pullicino,
Harness Racing Victoria Stewards will conduct an inquiry into the bona fide ownership training and racing of the horse, Nuclear Ash, between 30 August 1998 and 10 April 1999. Stewards will require all documentation, bank statements and receipts in relation to the purchase, training, stake earnings, stabling and veterinary attention relevant to Nuclear Ash that you hold or are aware of. The inquiry will be held at the offices of Harness Racing Victoria, 740 Mt Alexander Road, Moonee Ponds on Wednesday, 28 April 1999, at 9.30 a.m. You are required to attend the inquiry. At the conclusion of this inquiry, Stewards will then conduct an inquiry into an analyst's report notifying the presence of Ketorolac in the swab sample No.86021 taken from Nuclear Ash at Geelong on 24 February 1999. You are also required to attend this inquiry. Please bring any relevant evidence or witnesses that may assist with both inquiries."
By letter of 21 April 1999, Messrs Galbally & O'Bryan wrote to the Harness Racing Board advising it that they acted on behalf of the plaintiff. An inquiry was duly conducted by the Board on 28 April, 16 June and 8 July 1999. The transcript reveals that very early in the inquiry the plaintiff was made aware that Schembri was alleging that at the time of the Geelong race, and for some time prior to it, the plaintiff was the true trainer of the horse.
The plaintiff was present throughout the three days of the Stewards' inquiry and heard all the evidence that was called before the Stewards. Not only did she hear that evidence, she was given the opportunity of asking questions of each witness and the opportunity of calling any witnesses she wished to call. According to the affidavit of Gerard Anthony Lawler, sworn 8 December 1999, a copy of the transcript of each day of the inquiry was provided to Messrs Galbally & O'Bryan as soon as possible after each day of the inquiry, together with an audio-tape of the inquiry.
On 8 July 1999, that is, the third and final day of the inquiry, Stewards charged the plaintiff with breach of a number of the rules of harness racing. The plaintiff was then found guilty of breaches of Rules 416, 430, 436(a) and Local Rule 1 of the Rules. In substance, the Stewards found that the plaintiff had conspired with her son, Tony Pullicino, and Schembri to mislead the Board and the public concerning the identity of the real trainer of the horse, and had given false and misleading evidence at the inquiry. The Board also found that the plaintiff was the person in charge of the horse when it was presented for racing at Geelong with a prohibited substance in its system.
The plaintiff was then disqualified from holding any licence under the Rules for a period totalling three and a half years, and was fined the sum of $10,000.
Following the Stewards' decision to convict and penalise the plaintiff, the plaintiff lodged an appeal with the Racing Appeals Tribunal. The appeal was originally to be heard by the Tribunal on 23 August 1999. Prior to that day, the Board's solicitors were notified that, rather than Galbally & O'Bryan then acting for the plaintiff, the plaintiff had instructed a fresh firm to act for her in relation to the appeal.
On 23 August 1999, the appeal commenced before the Tribunal which, as I have earlier said, consisted of the third, fourth and fifth defendants. Mr Brian Bourke, of counsel, appeared on behalf of the plaintiff. That day, Mr Bourke applied for and was granted an adjournment of the appeal to 27 September 1999 in order that the plaintiff have additional time to properly prepare for the appeal.
The hearing of the appeal commenced on 27 September 1999. The plaintiff was represented by Mr Bill Gillies of counsel. The appeal continued until 1 October 1999. The Tribunal handed down its decision on 1 October 1999, whereby it confirmed the period of disqualification, but reduced the monetary penalty to $5,000.
On 29 November 1999, the plaintiff filed a writ in the court, in which she claims:
"A.A declaration that the ruling given and the penalty imposed by the Tribunal on 1 October 1999 were wrong in law, void and/or a breach of contract and/or statutory duty in that they were given and imposed in circumstances where there was no evidence which could reasonably support the ruling; the ruling was in breach of the rules of natural justice; the plaintiff was not given proper notice and that the Tribunal's decision was wrong and a breach of contract and/or statutory duty.
B.A declaration that the rules are an unreasonable restraint of trade and therefore void.
C.An interlocutory injunction and a permanent injunction prohibiting the defendant, or any of them, from giving effect to the ruling and imposing the suspension of the Tribunal."
On the same day, the plaintiff filed the summons seeking interlocutory relief which is now before me. There are three bases upon which the plaintiff contends she is entitled to interlocutory relief.
In the first place, it is said that she was never provided with a copy of the analyst's report and that, in that situation, she has been denied natural justice. In the second place, it is said that when the matter came before the Board, the Chairman of Stewards said this to the plaintiff:
"I just want to make something clear in that rule where I have read, no person shall do in connection with harness racing any other matter or thing which in the opinion of the controlling body or Stewards is fraudulent, corrupt or detrimental to the interests of the sport of harness racing. The Stewards aren't using the words 'fraudulent' or 'corrupt'. They are saying your actions were detrimental. Do you understand that?"
What is said in that regard, as I understand it, is that in his final submissions, not to the Board, but to the Tribunal, counsel for the Board submitted that not only was the plaintiff's behaviour detrimental, but in fact it was also, either fraudulent or corrupt. Again, the plaintiff claims that in so contending at such a late stage of the hearing of the proceeding before the Tribunal, the plaintiff was again denied natural justice in the matter.
Finally, it is said that a number of the inferences drawn by the Tribunal adverse to the plaintiff were simply not open to the Tribunal on the evidence which was then before it.
As Mason ACJ, as he then was, made clear in Castlemaine Toohey's Limited v. South Australia, 1986 (161) C.L.R. 148, at p.153:
"In order to secure an injunction, the plaintiff must show that there is a serious question to be tried or that the plaintiff has made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at the trial of the action the plaintiff will be held entitled to relief."
In my opinion, the simple fact of the matter is that I am not satisfied that the plaintiff has made out the appropriate prima facie case justifying the grant of an interlocutory injunction, because I am not satisfied that if the evidence remains as it is, there is a probability at the trial of the action the plaintiff will be held entitled to relief.
Insofar as the first ground relied upon by the applicant in support of her application is concerned, I am not at all satisfied that the plaintiff suffered any denial of natural justice by not being given an actual copy of the analyst's report if that was in fact the case. At the hearing before the Board, she would have been made fully aware of the content of the report. When the matter first came before the Tribunal on 23 August 1999, it was adjourned at the request of her counsel for more than a month to give her the opportunity to prepare her case. I find great difficulty in accepting that, during that period of a month, the plaintiff was not made fully aware of the content of the report, let alone at the hearing before the Tribunal itself, at which time the plaintiff was represented by counsel.
As to the complaint that counsel for the Board in his final submissions contended that, in addition to the plaintiff's actions being detrimental, they were fraudulent or corrupt, in my opinion, it cannot be said that in so behaving the plaintiff was in any way denied natural justice in the matter. The plaintiff was represented by counsel, who I have no doubt dealt adequately with any such submission in his submissions to the Tribunal.
As to the complaint that the Tribunal, drew inferences unfavourable to the plaintiff, in my opinion, once the Tribunal accepted, as it did, the evidence of Schembri in preference to that of the plaintiff, any other inferences that it may have drawn in the matter would, in my view, have very little significance. The critical evidence in the case concerning the training of the horse was that of Schembri, on the one hand, and the plaintiff, on the other. It was quite open to the Tribunal to take the view it did, namely, that it preferred the evidence of Schembri to that of the plaintiff.
Accordingly, the plaintiff's summons seeking interlocutory injunctive relief in the matter is dismissed with costs to be taxed and paid by the plaintiff.
As to the two very recent summonses filed in the court on behalf of the defendants, in my view, the appropriate course to adopt is to refer those summonses to a Master of the court, and I so order.
MR MOSHINSKY: If Your Honour pleases, I am instructed to ask for leave to appeal against Your Honour's order .
HIS HONOUR: That application is refused.
MR MOSHINSKY: If Your Honour pleases.
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