Pullicino v Harness Racing Victoria Stewards
[2015] VSC 554
•9 October 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 03629
| GAITA PULLICINO | Applicant |
| v | |
| HARNESS RACING VICTORIA STEWARDS | Respondent |
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JUDGE: | IERODIACONOU AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 September 2015 |
DATE OF JUDGMENT: | 9 October 2015 |
CASE MAY BE CITED AS: | Pullicino v Harness Racing Victoria Stewards |
MEDIUM NEUTRAL CITATION: | [2015] VSC 554 |
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PRACTICE AND PROCEDURE – Application for leave to appeal a decision of VCAT - Questions of Law– Were the findings of the Tribunal reasonable – Australian Harness Racing Rules - Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331 – Section 148 of the Victorian Civil and Administrative Tribunal Act 1998
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Sheales | Melasecca Kelly & Zayler |
| For the Defendant | Ms E Brimer with Ms A Wood | Harness Racing Victoria Stewards |
HER HONOUR:
Introduction
The applicant is a harness racing trainer and driver. The respondent cancelled her harness racing licenses to train and drive following an inquiry on 15 September 2014. The applicant then applied to the Victorian Civil & Administrative Tribunal (‘the Tribunal’) to review the respondent’s decision. The Tribunal heard the matter on 26 February and 23 April 2015. The Tribunal made orders on 23 April 2015 dismissing the application. The reasons for the Tribunal’s decision were given ex tempore. The applicant seeks leave to appeal from the orders of the Tribunal.
Summary
For the reasons below, the Court refuses to grant leave to appeal.
Background
It is useful to set out some of the relevant background to this matter.
On 24 September 2013, the applicant attended a show cause hearing held by the Show Cause Sub-Committee at Harness Racing Victoria (‘HRV’).[1] Following the hearing, the Show Cause Sub-Committee made recommendations to the board of HRV.[2] These recommendations were accepted. On 27 September 2013, the board of HRV granted the applicant a probationary and conditional B-grade training licence and a probationary C-grade driver’s licence.
[1]Affidavit of Michael Kelly sworn 14 July 2015, exhibit ‘MJK-5’. Transcript of hearing is at 392-424.
[2]Ibid 434-436.
HRV wrote to the applicant by letter dated 30 September 2013 and required her to enter into an undertaking to abide by and recognise conditions (a)-(q) in the letter.[3] Conditions (a) and (b) in that letter were that the training and driving licence issued were each a probationary licence. By declaration dated 1 October 2013, the applicant accepted these conditions and agreed to be bound by any new or varied conditions.[4]
[3]Ibid 71-74.
[4]Ibid 255.
The respondent held an inquiry into the applicant’s stable practices and restrictions on her license on 17 March 2014.[5] The applicant appeared at the inquiry.
[5]Ibid 265-313.
By letter dated 18 March 2014, HRV confirmed the directions given to the applicant at the stewards’ inquiry held on 17 March 2014. It was held after a stable inspection at her registered stable on 11 March 2014.[6] The letter stated that the directions were to clarify the conditions placed on her trainer’s licence. The letter set out five directions.
[6]Ibid 75-78.
By letter dated 11 September 2014, the applicant was informed that the respondent had scheduled an inquiry relating to the specific provisions of her licence and information attained at a stable inspection at her property on 10 September 2014.[7]
[7]Ibid 70.
The respondent held an inquiry in relation to the applicant and restrictions on the applicant’s licences on 15 September 2014.[8] The applicant appeared at the inquiry. She admitted that she had breached a condition on her licences that stipulated that she could only engage in training activities for six horses at any one time.[9] One of the conditions on the applicant’s licences was that if she failed to comply with any conditions attached to it, or any direction of the HRV Stewards or Controlling Body, it would result in the immediate withdrawal / cancellation of her licence(s). The outcome of the inquiry was the cancellation of the applicant’s licences.[10]
[8]Ibid 343-363.
[9]Ibid 355.26.
[10]Ibid 359-363.
Grounds of Appeal
The applicant’s draft Notice of Appeal contains six proposed grounds, although ground 3 is no longer pursued. The applicant submits that the grounds of appeal raise 8 questions of law, referred to as questions of law A-H in her draft notice of appeal. The questions of law are as follows.
A.Whether the Tribunal correctly construed Part 4 of the Rules of Harness Racing (‘the Rules’) that holding that it was within the powers granted to the Controlling Body by Part 4 to issue probationary licenses.
B.Whether the Tribunal correctly construed Rule 90(4) of the Rules holding that it was within the powers granted to the Controlling Body by Rule 90(4) to impose condition (k). Condition (k) prohibited the operation of and accordingly invalidated Rules 90(6)(a) and 238 of the Rules. Rules 90(6)(a) and 238 of the Rules specifically provide for situations contemplated by condition (k).
C.Whether the Tribunal correctly construed Rule 90(4) of the Rules holding that it was within the powers granted to the Controlling Body by Rule 90(4) to impose conditions (d) and (e). Conditions (d) and (e) prohibited the operation of and accordingly invalidated Rules 90A(2.7)(b) and 91(4). [This question was not pursued at hearing.]
D.Whether the Tribunal correctly construed Rule 90(4) of the Rules holding that it was within the powers granted to the Controlling Body by Rule 90(4) to impose condition (l). Condition (l) prohibited the operation of and accordingly invalidated Parts 14 and 15 of the Rules. Parts 14 and 15 of the Rules specifically provide for situations contemplated by condition (l).
E.Whether the Tribunal correctly construed Rule 90(4) of the Rules holding that it was within the powers granted to the Controlling Body by Rule 90(4) to impose condition (n). Condition (n) purports to create a power to withdraw the licenses at any time. No such power exists within the Rules.
F.Whether on a proper construction, the Tribunal ought have found that directions 1 & 4 of the Stewards to the appellant by letter of 18th March 2014 (‘the letter’) were ultra vires of the powers vested to the Stewards by the Rules, in that:
i.Direction 1 invalidated Rules 90A(2.7)(b) and 91(4) and the definition of ‘training’ as provided in the Dictionary of the Rules by incorporating activities irrelevant to training into the conditions;
ii.Direction 4 invalidated Rule 91(4) and the definition of ‘training’ as provided in the Dictionary of the Rules by incorporating activities which the Rules specifically determined as activities not requiring a licence and irrelevant to training into the conditions.
G.Whether the Tribunal correctly construed that each of the conditions (d), (e), (k), (l), (m), (n), (o) & (p) initially imposed upon the appellant and each of directions 1, 2 & 4 of the letter were reasonable.
H.Whether the Tribunal in finding that as at 15th March 2014 that the appellant had breached the terms and conditions of her licence, hence inferring a significant state of affairs adverse to the appellant:
i.denied the appellant natural justice, compounding the denial of natural justice upon the same issue by the respondent on 15th September 2014;
ii.reached a conclusion that was not open upon the evidence to the requisite standard.
Submissions
Both parties filed written submissions and made oral submissions during the hearing of the application.[11] The applicant sought leave to appeal and the respondent objected to leave being granted. The submissions made by the parties have been considered, although they are not all reiterated in this judgment given the nature of this application, namely that it is an application for leave to appeal.
[11]The applicant filed written submissions dated 24 July 2015 and the respondent filed written submissions dated 29 July 2015.
Applicable Principles
Section 148 of the Victorian Civil & Administrative Act 1998 (‘the VCAT Act’) permits review of the Tribunal’s decision on errors of law. Errors of fact are not reviewable. Leave is required from this Court to appeal.
The relevant principles for leave to appeal are enunciated in Secretary to the Department of Premier and Cabinet v Hulls.[12] They are well-established and were not in contention between the parties.
[12][1999] 3 VR 331 (‘Hulls’).
It was evident in the submissions made by both parties that there was also broad agreement on the following principles.
· A question of construction of a rule may be a question of law.
· Application for leave is not a rehearing of the matter.
· Applying the principles in Associated Provincial Picture Houses Ltd v Wednesbury Corporation,[13] conditions imposed upon a licence must be reasonable.
· The Australian Harness Racing Rules (‘the Rules’) were applicable.
[13][1948] 1 KB 223.
Application
Construction– imposition of probationary licence in letter of 30 September 2013
HRV is a ‘Controlling Body’. The ‘Controlling Body’ is defined in the Dictionary to the Rules:
‘Controlling Body’ means an organisation which by convention, recognition or law is or is deemed to be in control of harness racing in a State or Territory of Australia or in the part of or the whole of a country.
It was common ground that a ‘Controlling Body’ has wide powers.[14]
[14]Affidavit of Michael Kelly above n 1, exhibit ‘MJK-3’ transcript of VCAT Hearing on 26 February 2015 6.10-11 (‘Transcript’).
The Tribunal held that it was within the power of the ‘Controlling Body’ to issue a probationary condition on a licence.[15] It provided reasons for this conclusion.
[15]Ibid 98.12-19.
Harness Racing Victoria has significant powers to grant licences. Rule 90(1) provides, ‘The controlling body may by licence regulate any activity connected with the harness racing industry.’ That is a very wide power granted to Harness Racing Victoria. Rule 90(4) provides, ‘The controlling body may grant a licence for such period and upon such terms and conditions as it thinks fit.’
The powers for granting licences are extremely wide and I am satisfied that conditions can be imposed and the conditions of course must be reasonable.[16]
The Tribunal further stated that:
A controlling body had issued Mrs Pullicino with a conditional licence and in effect Mrs Pullicino was on probation. I have already referred to Rule 90(4) which provides that the controlling body may grant a licence for such period and upon such terms and conditions as it thinks fit. Rule 90(6)(a) provides that a licence may be suspended or cancelled by the controlling body or the stewards for breach of a term or condition of the licence. I am satisfied that given the licence granted to Mrs Pullicino was a conditional licence which was within the power of Harness Racing Victoria to grant, Harness Racing Victoria was entitled to insert clause (k) as one of the conditions applicable to the licence and I am satisfied that the authority acted within its powers in including clause (k) as a condition and were entitled to act on it when or if Mrs Pullicino breached the terms and conditions of the licence.[17]
[16]Ibid 98.20-29.
[17]Ibid 103.13-29.
The applicant submitted that the Rules deal in detail with the class and type of licence and all other matters pertaining to that.[18] They do not provide for a probationary licence, and it was therefore ultra vires to create one and impose it on the applicant. If the applicant’s submission were accepted, it would require a reading down of the wide breadth of r 90(4) to grant a licence ‘for such a period and upon such terms and conditions as it thinks fit’. The words in r 90(4) should be given their plain and ordinary meaning unless a contrary intention is shown.[19] There is no real or significant argument that such contrary intention is shown.
[18]Ground 1, in the proposed notice of appeal being ‘Exhibit MJK-4’ (‘Proposed notice of appeal’).
[19]The rules of statutory interpretation may be applied analogously to the interpretation of the Rules. In relation to authority for this rule of statutory interpretation, see Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia (Lexis Nexus, 8th ed 2014) 61.
Further, r 309 is an interpretation rule and does not provide any support for the proposition that r 90(4) should arguably be read down. It refers to a purposive interpretation of rules that promotes the purpose or object underlying it. Rule 90(4) is contained in Part 4 of the Rules, which is titled ‘Licences’. The Tribunal read r 90(4) in context with r 90(1). Rule 90(1) gives the Controlling Body the power to, by licence, regulate any activity connected with the harness racing industry. The Tribunal observed that this is a significant and wide power. The language of r 90(1) and r 90(4) is clear and unambiguous.
Applying Hulls, the applicant does not need to establish there has been an error in order for leave to appeal to be granted. The applicant must, however, establish that there is a real or significant argument that an error of law exists to the extent that there is sufficient doubt to justify leave to appeal being granted.
There is no real or significant argument that the Tribunal erred in its construction of Part 4 of the Rules in finding that that it was within the powers granted to the Controlling Body to impose a condition on the applicant that her licences were probationary.
Further, applying Hulls, an appellable error of law must be an error in relation to a finding that has a bearing on relief. During the hearing, the applicant’s counsel conceded that this ground did not have bearing on relief.
Construction – imposition of conditions in letter of 30 September 2013
The Tribunal held that it was within the power of the ‘Controlling Body’ to impose various conditions on the applicant’s licence including:
…
(k)Any failure on your part to comply with any of the conditions attached to the licence/s or any direction of the HRV Stewards or Controlling Body will result in the immediate withdrawal / cancellation of the licence/s;
(l)You are not to allow any unlicensed persons to undertake licensed activities at [address];
…
(n)In accordance with the ARHR [Australian Rules of Harness Racing], HRV may withdraw the probationary training and/or driving licence/s at any time
After referring to the significant powers to grant licences, the Tribunal considered the conditions imposed on the applicant’s licences and noted that they must reasonable. The Tribunal then outlined five purposes of the conditions.[20] It concluded:
[20]Transcript 98.30-31 and 99.1-20.
Conditions (k) to (o) were under attack and they were inserted in an endeavour to ensure that Mrs Pullicino would approach her training in a responsible and lawful or legal manner, bearing in mind the oft-states words that to hold a licence is a privilege, not a right. Those rules were inserted to endeavour to make it clear to her that any further breaches of the rules would be regarded as unacceptable and would be punished.
I am satisfied that HRV was entitled to impose conditions on Mrs Pullicino’s licence and that the conditions imposed were legal, reasonable and appropriate in all the circumstances, given Mrs Pullicino’s record of past offending.[21]
And further:
A controlling body had issued Mrs Pullicino with a conditional licence and in effect Mrs Pullicino was on probation. I have already referred to Rule 90(4) which provides that the controlling body may grant a licence for such period and upon such terms and conditions as it things fit. Rule 90(6)(a) provides that a licence may be suspended or cancelled by the controlling body or the stewards for breach of a term or condition of the licence. I am satisfied that given the licence granted to Mrs Pullicino was a conditional licence which was within the power of HRV to grant, HRV was entitled to insert clause (k) as one of the conditions applicable to the licence and I am satisfied that the authority acted within its powers in including clause (k) as a condition and were entitled to act on it when or if Mrs Pullicino breached the terms and conditions of the licence.
Mr Sheales described the breach by Mrs Pullicino of not notifying HRV of the three horses that were at the stable area was an extremely minor breach of the terms of her licence. Nevertheless, it was a term of the licence, Mrs Pullicino knew that, and there was purpose behind the rule being in place in the first place. I am satisfied that she was in breach of the terms of the licence.[22]
[21]Ibid 102.8-20.
[22]Ibid 103.13-31 and 104.1-6.
The applicant submitted that the Tribunal had misconstrued r 90(4) in holding that it was within the powers of the Controlling Body to impose the conditions above.[23] For instance, r 90(6)(a) provides for the suspension or cancellation of a licence for a breach of a term or condition, and r 238 stipulates that a person shall not fail to comply with any order, direction or requirement of the Controlling Body or the Stewards relating to harness racing or the harness racing industry. The applicant submitted that condition (k) invalidated those rules.
[23]Proposed notice of appeal, ground 2.
Similarly, the applicant submitted that Parts 14 and 15 of the Rules specifically provided for situations contemplated by condition (l).
On the other hand, the applicant submitted that condition (n) creates a power to withdraw licences at any time and no such power exists in the rules.
The analysis above with respect to r 90(4) applies to these submissions. There is no real or significant argument that the words ‘as it thinks fit’ in r 90(4) should be read down and that the application of r 90(4) should be confined to subject-matter not dealt with in the rules as submitted by the applicant with respect to conditions (k) and (l); or alternatively that r 90(4) should be read down and its application confined to powers otherwise only contained expressly in the rules, as the applicant submitted with respect to condition (l). Rule 90(4) provides a wide discretion. As discussed above, the Tribunal read it r 90(4) with r 90(1). Rule 90(1) provides, ‘The controlling body may by licence regulate any activity connected with the harness racing industry.’ As discussed above, this language is clear and unambiguous.
There is no real or significant argument that the Tribunal erred in its construction of r 90(4) in finding that that it was within the powers granted to the Controlling Body to impose the conditions referred to above.
Further, applying Hulls, there is no real or significant argument that there is an appellable error of law in respect of conditions (l) and (n) as they did not have a bearing on relief. The cancellation of the licences was not due to a breach of those conditions.
Construction – directions in letter of 18 March 2014
By letter dated 18 March 2014, HRV provided a number of directions varying these conditions initially imposed in its letter of 30 September 2013 including, relevantly:
(1) In regard to condition (d) which states that you are only permitted to engage in training activities for six (6) horses at any one time, you are directed to ensure that only six (6) racehorses are residing on your property. The HRV Stewards must approve these horses.
Racehorses are defined as horses that are being prepared for racing currently racing or spelling between racing preparations.
(2) Per condition (p) you are permitted to pre-train horses for registered owner [name] only, however these horses must be approved by the HRV Stewards and must number no more than six (6) horses at any one time (including horses recuperating from injury). Approval is not granted until you submit a request in writing and are subsequently in receipt of written approval from HRV Stewards.
…
(4) You are directed to seek approval for any other horse to enter your registered property at [address]. Any approval will be based on the details and circumstances of the request. No registered (whether named or unnamed) horse shall be located on your property without the written approval of HRV Stewards.
…
Rule 90(8) provides:
The terms or conditions attaching to a type, grade or class of licence may be varied by the Stewards or the Controlling Body.
The Tribunal held:
I do not accept that submission, alleging that the conditions were imposed on a licence contrary to Rule 90(8) following the March 2014 inquiry. I have considered the nature and purpose of that inquiry and I am satisfied that after that inquiry, Mrs Pullicino was issued with a number of directions regarding her licence condition, with the aim of clarifying the position with reference to her licence and to rid any ambiguity or potential ambiguity as to whether or not a horse was in training.
… the definition of ‘vary’ in the Shorter Oxford Dictionary is as follows, ‘To change or alter, to introduce changes or alterations into something; to adapt to certain requirements by appropriate modification.’
… what occurred after the March 2014 inquiry involved a variation of the conditions originally attached to her licence. In other words, appropriate modifications were made to clarify the conditions and I reject the submission that conditions were imposed; the original conditions were varied.[24]
[24]Transcript 100.30-31 and 101.1-19.
The applicant submitted that the Tribunal should have found direction 1 above invalidated r 90A(2.7)(b), r 91(4) and the definition of ‘training’ in the Dictionary in the Rules.[25] The application also submitted that direction 4 above invalidated the same provisions, save for r 90A(2.7)(b), by incorporating activities which the Rules specifically determined as activities not requiring a licence and irrelevant to training.
[25]Proposed notice of appeal, ground 4.
Rule 90A(2.7)(b) provides that the holder of a Grade B training licence is ‘licensed to train a horse which the person owns or partly owns or which is owned by the person’s spouse, other domestic partner, parent, sibling or child, or any horse approved by the Controlling Body upon the written application of the person.’
Rule 91(4) provides that a person, other than a disqualified one, ‘does not require a licence to prepare, educate and exercise a horse provided that the horse is unnamed, is owned by that person and is prepared, educated and exercised on private property.’
The Dictionary in the Rules defines ‘training’:
‘Training’ includes the preparation, education and exercising of a horse to race, but not the mere process of keeping a horse in good health.
The applicant also submitted that the Tribunal erred in finding that each of the directions imposed was reasonable in the circumstances.[26]
[26]Ground 5 of proposed notice of appeal.
As discussed above, the Tribunal found that the directions were variations on the conditions (that were originally in the letter of 30 September 2013). The Tribunal found that the conditions imposed were legal, reasonable and appropriate. The power to impose conditions was a wide one, as discussed above, and the coverage of the licensing rules is also wide, as expressed in r 90(1) being above, by licence, to ‘regulate any activity connected with the harness racing industry’. There is no real or significant argument that these were matters not connected with the harness racing industry.
The directions were variations on conditions. The conclusion reached by the Tribunal that the imposition of the conditions was reasonable was open on the facts before it. It referred, in detail, to the conditions imposed. It referred to Mrs Pullicino’s evidence of past offending.[27] Such evidence was before the Tribunal.[28] The weight given to that evidence is a matter for the Tribunal and there is no real or significant argument that this gives rise to an appellable error of law.
[27]For instance, transcript 99.3-4.
[28]See, for example, statement and exhibits of Neil Condor dated 21 November 2014 at 238-243 of Exhibit ‘MJK’5’ and statement and exhibits of Andrew Rogers dated 27 March 2015 at 374-382 of Exhibit ‘MJK-5’.
There is no real or significant argument that the Tribunal erred in its construction of the Rules in respect of directions 1 and 4 in its letter of 18 March 2014.
Natural Justice
The applicant submitted that she had been denied natural justice at the inquiry on 17 March 2014 and, essentially, this led to a denial of natural justice at the later 15 September 2014 inquiry.[29]
[29]Ibid, ground 6(i).
The applicant also submitted that the finding that she had breached the terms and conditions of licence, as at 15 March 2014, was not open upon the evidence before it.[30]
[30]Ibid, ground 6(ii).
A breach of natural justice may be an appellable error of law, as may a finding of fact not open on the evidence. However, the Tribunal ‘put it [the March inquiry] to one side’ and focused on the breach of terms in the September inquiry.[31] Accordingly, the March inquiry was not one that had a bearing upon the Tribunal’s ultimate decision. The Tribunal held:
HRV have extremely wide powers under Part 4 dealing with licences and I am satisfied that they exercised those powers reasonably and properly in all the circumstances and they were entitled to cancel her licence for the breaches alleged at the hearing in October [September] last year.[32]
[31]Transcript 84.14-27. The Court considers the reference to October is an error and it should be a reference to September, as there was no inquiry in October. It also notes that this slip is not one which attends the decision of the Tribunal with sufficient doubt so as to make it just to grant leave.
[32]Ibid 104.25-30.
There is no real or significant argument that the alleged breach of justice may constitute an appellable error of law. There is no real or significant argument that the Tribunal erred.
Conclusion
Applying the legal principles that must determine these applications, the Court is not satisfied that there is a real or significant argument to be put that the Tribunal has made an error of law.
Leave to appeal is ultimately decided by what is just. The Court is not satisfied that the decision of the Tribunal is attended with sufficient doubt so as to make it just to grant leave.
The Court makes the following orders.
1. The application for leave is refused.
2. The applicant pay the respondent’s costs of the application, including reserved costs, to be taxed by the Costs Court in default of agreement.
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