Riley v Racing Victoria Ltd - [2015] VSC 527

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 2119

MARK RILEY	Appellant
v
RACING VICTORIA LIMITED (ACN 096 917 930)	Respondent

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JUDGE:	Bell J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 September 2015
DATE OF JUDGMENT:	1 October 2015 (Revised 12 October 2015)
CASE MAY BE CITED AS:	Riley v Racing Victoria Ltd
MEDIUM NEUTRAL CITATION:	[2015] VSC 527

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APPEAL – order of Victorian Civil and Administrative Tribunal confirming disqualification of licenced horse trainer for three years – whether error of law – Rules of Racing – prohibition on administration of substances affecting performance or behaviour of horse – exceptions to prohibitions defined in highly precise concentration units and threshold amounts - alkalinising agents not prohibited when evidenced by total carbon dioxide not above concentration of 36.0 millimoles per litre – legal significance of first decimal place – whether, properly interpreted, Rules permit proof of guilt on basis of rounded-up laboratory results – whether scientific evidence other than certified laboratory results properly admitted and capable of supporting finding of guilt – interpretation of provisions and rules affecting capacity of persons to carry out business or occupation of licenced horse trainer – principle of legality – interpretation of rules penal in nature or operation – ‘rounding-up’, ‘rounding-down’, ‘truncation’ - Racing Act 1958 (Vic) ss 5F, 5G.

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APPEARANCES:	Counsel	Solicitors
For the appellant	Mr P Tehan QC and Mr S Mukerjea	Patrick W Dwyer Solicitor
For the respondent	Dr C Pannam QC and Mr M Stirling	Minter Ellison

HIS HONOUR:

Mark Riley was the trainer of Gold For Kev when it ran in a race at Sandown Racecourse on 13 July 2014. Blood samples taken from the horse on behalf of the stewards were tested by two laboratories for the presence of prohibited substances above the maximum level permitted under the Rules of Racing. Adjusted for measurement uncertainty, the result reported by one laboratory was that a prohibited substance was present in the blood in a concentration just above the maximum level, but that result had been rounded-up. So adjusted, the result reported by the other laboratory was that the substance was clearly not present in a concentration above the maximum level.

On charges brought by the stewards in the Racing Appeals and Disciplinary Board, Mr Riley submitted that he could not be found guilty of breaching the Rules upon the basis of the positive but rounded-up result of the first test and should be exonerated upon the basis of the negative result of the second test. The Board rejected those submissions. Relying upon the test results and scientific evidence presented by the stewards, it found that Mr Riley had breached the Rules and (among other things) disqualified him from being a licensed trainer for three years.

On Mr Riley’s application for review, the Victorian Civil and Administrative Tribunal followed the same path of reasoning and confirmed the disqualification. Mr Riley now appeals to this court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] VSC 527
Decision Date: 1 October 2015 (Revised 12 October 2015)

CaseChat Overview and Summary

In Riley v Racing Victoria Ltd, the Victorian Court of Appeal considered the disqualification of a licensed horse trainer, Mr. Riley, by Racing Victoria Ltd. The dispute arose from Mr. Riley's alleged administration of an alkalinising agent to a horse, in violation of the Rules of Racing. The Rules explicitly prohibit substances affecting a horse’s performance or behaviour, except in precise concentration units and threshold amounts. The case hinged on whether the Rules permit guilt to be proven based on rounded-up laboratory results and whether scientific evidence other than certified laboratory results could be admitted.

The legal issues before the Court were whether there was an error of law in the Tribunal's interpretation of the Rules of Racing and the Racing Act 1958 (Vic). Specifically, the Court had to determine the significance of the first decimal place in the concentration of total carbon dioxide, and whether the Rules allowed for rounding up of laboratory results to prove guilt. Additionally, the Court examined whether non-certified scientific evidence could support the Tribunal's findings. The principle of legality was also considered, particularly the interpretation of penal rules, and whether the Rules permitted rounding-up or truncation in measurements.

The Court held that the Tribunal erred in its interpretation of the Rules of Racing and the Racing Act. It found that the Rules did not permit guilt to be established based on rounded-up laboratory results, and that the first decimal place was significant. The Court concluded that the Tribunal's reliance on rounded-up laboratory results was incorrect, and that only precise measurements within the specified concentration units could be used to prove a breach. Furthermore, the Court held that non-certified scientific evidence could not be used to support the Tribunal's findings. Consequently, the Court quashed the Tribunal's order and remitted the matter for reconsideration.

The final orders of the Court were that the Tribunal's decision was quashed, and the matter was remitted back to the Tribunal for reconsideration in light of the Court’s findings. The Tribunal was directed to consider only evidence that adhered strictly to the specified concentration units and threshold amounts, and to disregard any reliance on rounded-up laboratory results. The Court emphasised the importance of adhering to the precise language of the Rules and the principle of legality in penal rules.

Orders