Sarkis v Greyhound Racing New South Wales

[2015] NSWSC 1987

Supreme Court

New South Wales

Medium Neutral Citation:	Sarkis v Greyhound Racing New South Wales [2015] NSWSC 1987
Hearing dates:	22 December 2015
Decision date:	23 December 2015
Jurisdiction:	Equity - Duty List
Before:	Stevenson J
Decision:	Amended summons dismissed with costs
Catchwords:	ADMINISTRATIVE LAW – judicial review of decision of regulator of greyhound racing industry to suspend registration of greyhound trainer and breeder – whether jurisdictional error established – whether prerogative relief should be denied because of availability of appeal to specialised tribunal
Legislation Cited:	Greyhound Racing Act 2009 (NSW) Racing Appeals Tribunal Act 1983 (NSW)
Cases Cited:	Australian Securities and Investments Commission v Farley [2001] NSWSC 326; 51 NSWLR 494 Day v Harness Racing New South Wales [2014] NSWCA 423; 88 NSWLR 594 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50
Texts Cited:	M Aronson and M Groves, Judicial Review of Administrative Action, (5th ed, Thomson Reuters, 2013)
Category:	Principal judgment
Parties:	Harry Sarkis (Plaintiff) Greyhound Racing New South Wales (First Defendant) Karen Lees (Second Defendant)
Representation:	Counsel: A P Cheshire SC (Plaintiff) J C Giles SC (Defendants)   Solicitors: Clinch Long Letherbarrow (Plaintiff) Gadens Lawyers (Defendants)
File Number(s):	SC 2015/367623

EX TEMPORE Judgment (REVISED)

1. The plaintiff breeds and races greyhounds.

2. The first defendant, Greyhound Racing New South Wales, is a body corporate constituted under the Greyhound Racing Act 2009 (NSW) (“the Act”). Its functions include the control, supervision and regulation of greyhound racing in New South Wales.

3. The second defendant is a steward of the first defendant.

4. The plaintiff is registered with the first defendant as a trainer and breeder of greyhounds.

5. By letters dated 20 October and 2 November 2015, the second defendant notified the plaintiff that she was conducting an inquiry under the GRNSW Greyhound Racing Rules (“the Rules”). The Rules are made pursuant to s 23(1) of the Act.

6. The letters stated that the basis of the inquiry was allegations made by three individuals at the Special Commission of Inquiry into the Greyhound Racing Industry (as conducted by the Honourable Michael McHugh AC QC) that the plaintiff had engaged in live baiting.

7. In her 20 October 2015 letter, the second defendant said that she was considering imposing an interim suspension of the plaintiff's registration pending the outcome of the inquiry, pursuant to r 92(5)(c) of the Rules. She said that she did not consider herself bound to have regard to r 92(4). I will return to that rule below.

8. The second defendant in effect invited the plaintiff to show cause why she should not so proceed.

9. The plaintiff asked to make submissions in person. That occurred on 29 October 2015, when the plaintiff attended on the second defendant and a senior investigator of the first defendant, Mr James Monaghan. The transcript of that meeting takes up some 26 pages. It is clear that the plaintiff had ample opportunity to put his side of the story. He denied vigorously the allegations that had been made by his accusers before Mr McHugh.

10. In an affidavit sworn in these proceedings, the plaintiff said:

“I believed that the purpose of that meeting was for me to deny the allegations that had been made against me at the Special Commission of Inquiry and to explain why those allegations should not be believed. I gave them photographs, which I used to explain my position and which they retained.

It did not occur to me that my personal situation might also be relevant and nor did Ms Lees or Mr Monaghan ask me questions about my financial or personal circumstances. They appeared to me to be only interested in my explanations related to the allegations. Both Mr Monaghan and Ms Lees knew from their prior dealings with me that I am a full time trainer and that a suspension of my licence would seriously impact me.

At the end of the meeting, I felt reasonably confident that I had explained my position and that I would not be suspended.”

11. On 10 November 2015, the second defendant decided to suspend the plaintiff's registration. Her reasons included the following:

“Factors warranting the imposition of a suspension

8.   In considering whether to issue an interim suspension of the Participant’s Licence, I considered the following factors to be of relevance:

(d)   the seriousness of the allegations of live baiting that have been made against the Participant. Further, that if such allegations are found to be true, they would constitute a significant and serious breach of the Rules;

(e)   that the allegations of live baiting were made by witnesses under oath and that this evidence was subject to cross examination by Counsel Assisting the SCOI (Stephen Rushton SC) and a former High Court Justice McHugh J;

(f)   that in making the allegations against the Participant each of the witnesses exposed themselves to the risk of facing possible criminal proceedings if the evidence they gave was false; and

(g)   the gravity of the issue of live baiting and specifically the importance of protecting the integrity of the industry and all of its participants and the protection of the public, whether betting or otherwise, in the context of an issue as abhorrent as live baiting.

Submissions against the imposition of a suspension

9.   To date the only submissions regarding why I should not impose an interim suspension of the Participant’s Licence are the oral submissions made to me on 29 October.

10.   In summary, the Participant submitted that I should not issue an interim suspension for the following reasons:

(a)   in respect of the allegations made against the Participant by Majella Ferguson, that she was untruthful;

(b)   the Participant does not know Adam Wallace or Todd Fear and it is possible that they engaged in live baiting on the Participant’s property without the Participant’s knowledge or approval; and

(c)   in respect of the allegations made by Adam Wallace and Todd Fear to the extent any live baiting occurred on the Participant’s property it did so without the Participant’s approval or knowledge.

Consideration

11.   Having taken the allegations against the Participant and the Participant’s submissions into consideration I am of the view that an interim suspension of the Participant’s Licence should be imposed.

12.   Notwithstanding the Participant’s stated concerns regarding the truthfulness of the allegations made by Majella Ferguson, Adam Wallace and Todd Fear, this needs to be considered in light of the background against which these allegations were made, that is, under oath at the SCOI and in the circumstances where their testimony exposed them to the possibility of criminal proceedings if that evidence was untrue.

13.   The Participant has not raised any submissions for my consideration regarding the possible inconvenience or burden that such an interim suspension would cause the Participant.

Conclusion

14.   For the reasons detailed above, I have determined that the Participant’s licence should be suspended pending the completion of the Inquiry. The suspension will take effect from.

15.   In addition the suspension will remain in place until the conclusion of the Inquiry. The power to issue an interim suspension is made pursuant to Rule 92(5)(c) of the Rules.

16.   It is anticipated that the Inquiry into the conduct of the Participant will take approximately 12 weeks.

17.   The Participant has been notified of his appeal rights.”

12. The second defendant described the “appeal rights” referred to in her decision in her letter to the plaintiff of 12 November 2015, under cover of which she relayed to the plaintiff her decision. That description was as follows:

“Appeal rights

You may be able to appeal my decision to the Racing Appeals Tribunal.

There are only limited decisions which you can appeal to the Racing Appeals Tribunal. An appeal can be made to the Racing Appeals Tribunal against any decision of Greyhound Racing New South Wales, or the Stewards, to:

(a)   disqualify or warn off a person;

(b)   cancel the registration of, or refuse to register, a person;

(c)   cancel the registration of, or refuse to register, a greyhound (including registration of a greyhound as a sire and registration of a litter of greyhounds);

(d)   fine a person an amount of $200 or more;

(e)   disqualify a greyhound, if the disqualification is made in conjunction with the imposition of a penalty on the person lodging the appeal or any other person;

(f)   to suspend any licence, right or privilege granted under the GRNSW Greyhound Racing Rules; and/or

(g)   to place an endorsement on the registration certificate of a greyhound for marring or failing to pursue the lure, that gives rise to a suspension of the greyhound for a period of more than four weeks.”

Statutory Setting

Greyhound Racing Act 2009

13. S 21(1)(g) of the Act gives the first defendant the power to:

“suspend, for such term as GRNSW thinks fit, any right or privilege conferred by this Act or the rules on any owner, trainer or bookmaker or other person associated with greyhound racing”.

14. S 21(3) of the Act is in the following terms:

“GRNSW may only take action under this section for disciplinary purposes or for the purposes of work health and safety.”

The Rules

15. Rule 86 deals with offences. It is common ground that if (which he denies) the plaintiff has engaged in live baiting, that would be an offence within the meaning of one or other of the subsections of r 86.    

16. Rule 90 deals with inquiries, and provides, amongst other things, that a steward of the defendant can conduct an inquiry.

17. Rule 92 deals with the conduct of inquiries. Subrules 92(4) and (5) are particularly relevant, and in the following terms:

“(4)   Matters to which the Controlling Body or Stewards must have regard are-

(a)   the character and antecedents of the person charged;

(b)   the nature of the breach and the circumstances in which it was committed, in particular, the seriousness of the breach and any negligence, recklessness or indifference of the person charged;

(c)   whether the person has denied or admitted the charge.

(5)   Pending the decision or outcome of an inquiry, the Controlling Body or Stewards may direct that-

(a)   if the inquiry directly or indirectly involves or is connected with a greyhound, then the greyhound shall not be permitted to compete in or be nominated for any Event; and

(b)   if the inquiry directly or indirectly involves or is connected with an owner or trainer, then no greyhound owned by the owner or trained by the trainer shall be permitted to compete in or be nominated for any Event; and

(c)   a licence or other type of authority or permission be suspended.”

Racing Appeals Tribunal Act 1983 (NSW)

18. Section 15A of the Racing Appeals Tribunal Act 1983 (NSW) provides that a person aggrieved by, amongst other things, a decision of a steward of the first defendant has a right of appeal to the Racing Appeals Tribunal (“the Tribunal”). Such an appeal is by way of new hearing. Fresh evidence may be given. A hearing before the Tribunal is a hearing de novo.

Racing Tribunal Regulations

19. Under the Racing Appeal Tribunal Regulations:

1. a party is entitled to appeal against a suspension decision such as that in this case (reg 9(1)(g));

2. an appeal must be initiated within seven days of notification of the relevant decision (reg 10(1));

3. the Tribunal can extend the time to appeal if satisfied that special or exceptional circumstances exist; as I read the regulation, whether such application is made within the seven day period to which I have referred or not (reg 10(7));

4. the Tribunal is obliged to commence a hearing as soon as practicable within 28 days of the appeal being lodged (reg 12(2));

5. the Tribunal has the power to expedite an appeal (reg 13);

6. the Tribunal has the power to order that the decision appealed against "is not to be carried into effect" pending determination of the appeal (reg 14(1)); and

7. the Tribunal has the power to grant leave to a party to have legal representation (reg 17(2)).

20. I have no reason to doubt that the Tribunal has power, if necessary, to construe the Rules. I therefore see this matter as being different from the circumstances considered by the Court of Appeal in Day v Harness RacingNew South Wales [2014] NSWCA 423; 88 NSWLR 594. In that case, the question was whether the relevant tribunal could consider the validity of the Rules under consideration (see for example per Leeming JA at [128]). I will return to this below.

21. Had the plaintiff exercised his right to appeal within seven days of notification of the second defendant's decision (that is, by on or about 19 November 2015), the proceedings in the Tribunal would have commenced by at least 17 December 2015 and may well have been concluded by now.

22. The plaintiff chose not to exercise his right to appeal. In his affidavit he gave these reasons for making that decision:

“I was aware from the letters I received from the defendant that I had a right to appeal to the Racing Appeals Tribunal. However, because of the prior proceedings, I thought I could chose to go to either the Racing Appeals Tribunal or to the Court. As I was successful in the prior proceedings, I wanted to return to the Court. I was also concerned from my knowledge of others in the industry who had appealed to the Tribunal, that the Tribunal has, in my view, a tendency to favour the defendant. Accordingly, I have again chosen to have the matter dealt with by the Court.

23. The plaintiff also said that he owed money to his solicitor arising from an application made in this court on 2 October 2015 arising from an earlier decision by the first or second defendant to suspend his licence. Those proceedings were dismissed by consent on 8 October 2015 with costs. However, the plaintiff did not say that he was unable to put his solicitor in funds.

24. The plaintiff said in his affidavit:

“I was very shocked and disappointed at the decision. I still had not paid my solicitor in full, however, and so I was unable to involve him at that stage. I was also aware from my contacts in the industry that one of the three people who made the allegations against me at the Special Commission of Inquiry had been suspended following an Inquiry into her for a positive swab; and each of the two other people (both males) who had made the allegations against me were the subject of an Inquiry by the defendant for live baiting (an allegation that they had admitted to the Special Commission on Inquiry) and their hearings were due to take place on 3 December 2015. I believed that the defendant could not rely on the evidence given at the Special Commission on Inquiry and that those people would have to repeat their allegations and admissions in the Inquiries commenced by the defendant. I also believed that those people would not repeat the allegations that they made against me (because they are untrue) and that they would be seen as unreliable witnesses and the defendant would have to reconsider the Inquiry into me and the suspension because of the unreliability of the evidence.”

25. The plaintiff paid his outstanding solicitor's accounts by 3 December 2015.

26. He did not then seek to approach the Tribunal and seek leave to appeal out of time. Instead, he instructed his solicitors to write to the defendants protesting the decision which had been made. The solicitor's letter concluded:

“GRNSW is on notice of the ongoing loss and damage being suffered by our client and our client holds GRNSW responsible for all such loss and damage.

In the circumstances, GRNSW should commence the Inquiry immediately or alternatively, abandon the Inquiry for lack of reliable (or any) evidence and lift the suspension immediately.”

27. Thus, at that stage, the plaintiff did not foreshadow any intention to approach the Tribunal or the Court. Rather, instead, he exhorted the first defendant to proceed expeditiously with the inquiry.

28. These proceedings were commenced on the 15 December 2015. They came on for hearing before me as vacation judge yesterday.

Judicial review

29. The plaintiff seeks prerogative relief and an order quashing the second defendant's decision.

30. Mr Giles SC, who appeared for the defendants, pointed out that the High Court has very recently emphasised, if the point needed emphasis, the limited scope of judicial review.

31. Thus, in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50, French CJ and Bell, Keane and Gordon JJ said at [23] and [24], relevantly:

“In particular, judicial review is concerned with whether the Delegate’s decision was one which he was authorised to make; it is not:

‘an appellate procedure enabling either a general review of the…decision…or a substitution of the…decision which the…court thinks should have been made.’

First, the burden is upon the plaintiff to demonstrate that the Delegate’s decision was affected by jurisdictional error. The plaintiff must show that the approach adopted by the Delegate ‘manifest[ed] a legally erroneous view as to what it was about which [he] needed to be satisfied’, so that the Delegate lacked legal authority to make the decision that was made.

It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision.” [Citations omitted]

32. My attention was drawn by Mr Giles, and by Mr Cheshire SC, who appeared for the plaintiff, to the familiar observations of Mason J, as his Honour then was, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40:

“(a)   The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision…

(b)   What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. …

(c)   Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised accordingly to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision…”. [Citations omitted]

33. Mr Cheshire advanced a number of bases upon which he said that jurisdictional error had occurred.

34. First, to adopt Mr Cheshire's words:

“Section 21(3) of the 2009 Act provides that the First Defendant ‘may only take action under this section for disciplinary purposes or for the purposes of health and safety’. The suspension was not for those purposes, being expressed rather as being for ‘the integrity of the greyhound racing industry’, and indeed appears rather to have been based upon nothing more than a prejudgment of the substantive allegations against the Plaintiff, which did not then enliven the power to suspend.”

35. I do not agree. Although the second defendant expressed the reasons for the suspension in the language that Mr Cheshire has repeated, her decision was also, obviously, in my opinion, made for disciplinary purposes. In addition, the reference in s 21(3) of the Act to work health and safety must, in the context in which that language appears, refer to the health of animals as well as people. Live baiting obviously gives rise to issues about that matter.

36. The second ground Mr Cheshire advanced was that the terms of r 92(4), which I have set out above, required that the second defendant take into account the plaintiff's character and antecedents. In effect, Mr Cheshire's submission was that such a matter was a mandatory consideration.

35. I do not agree. In my opinion, on the proper construction of r 92, the matters in subr 92(4) are matters to be taken into account at the inquiry itself, and not when suspension is contemplated. That is made clear, as Mr Giles pointed out, by the language of subr 92(4)(b). That section refers to "breach", which, in that context, must mean breach as found; that is, at an inquiry.

36. I do not consider that the matters in subr 92(4) are matters which must be taken into account in exercising the power under subr 92(5). As I have mentioned, my opinion is that the Tribunal would have power to consider submissions as to the proper construction of subr 92(4). The mere fact that a question of construction might arise is not a matter which should itself have deterred the plaintiff from approaching the Tribunal (I will return to this below).

37. In her letter of 20 October 2015, the second defendant said that, in the context of suspending the plaintiff's registration, she did not consider herself bound to take into account the matters in subr 92(4). In my opinion, she was correct.

38. In any event, had the second defendant taken into account the plaintiff's antecedents, it "could not have materially affected the decision" (see Peko at 40, as set out at [32] above).

39. The plaintiff's antecedents are poor. Over the last quarter century he has incurred numerous fines, a two year disqualification starting in 1990 (which he disclosed in his affidavit) and a three and a half year disqualification commencing in 2005 (a matter which he did not disclose).

40. The third ground upon which Mr Cheshire relied was that the second defendant did not inquire of the plaintiff as to the likely effect on him of the suspension.

41. In that regard, the second defendant said in a letter of 7 December 2015:

“Notwithstanding the above opportunities, Mr Sarkis did not once raise the prospect of financial hardship or incurring loss and damage as reason for me not to issue the interim suspension. At no point did Mr Sarkis ever mention that he was at risk of losing his home. Accordingly, at the time I made my decision none of these considerations were taken into account. Further, you cannot now seek to make these submissions retrospectively on behalf of Mr Sarkis. As such, the interim suspension will remain in place.”

44. However, the plaintiff had every opportunity at the 29 October 2015 meeting to emphasise the likely effect of a suspension. In my opinion, it was not for the second defendant to inquire into points not raised by the plaintiff.

45. The fourth ground relied upon by Mr Cheshire was that, although the second defendant relied upon the fact that the plaintiff's accusers had made their accusations under oath, she had not taken into account the fact that the plaintiff denied those allegations. In my opinion, that submission is not correct. The second defendant's document makes clear that she did know and took account of the fact that the defendant denied the allegations.

46. The fifth matter relied upon by Mr Cheshire was that the second defendant had prejudged the issue. Mr Cheshire submitted that an independent observer might reasonably apprehend that the second defendant was not open to persuasion. I do not agree. The second defendant's decision was to make a suspension pending an inquiry. I see no sign in the words that she used of any prejudgment of the issue.

47. Sixth, and finally, Mr Cheshire submitted that the second defendant failed to take into account the fact that the plaintiff’s accusers were not (evidently) suspended and this bespoke a lack of "intelligible justification" (to adopt the words in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 per Hayne, Kiefel and Bell JJ at [76]).

48. I do not agree. I see no sign of the second defendant purporting to exceed her powers or misunderstanding her powers.

49. For those reasons, I am not persuaded to grant the plaintiff the prerogative relief he seeks.

50. In any event, I see the plaintiff's failure to exercise his right to appeal to the Tribunal as a separate, and of itself decisive, consideration against the granting of relief.

51. It is well-established that the availability of an appeal to a specialist tribunal, especially one providing for a hearing de novo, is a strong discretionary ground to withhold prerogative relief (see M Aronson and M Groves, Judicial Review of Administrative Action, (5th ed, Thomson Reuters, 2013) at [12.270]).

52. Here, the plaintiff chose not to go to the Tribunal because he apprehended that it had a “tendency to favour the defendant”. Evidently, he does not have that apprehension about this Court. Plainly he was forum shopping.

53. I do not see the matters to which the plaintiff referred in his affidavit (which I set out at [22] above) as providing an adequate explanation for his decision not to approach the Tribunal. Mr Cheshire drew attention to the observations of Sperling J in Australian Securities and Investments Commission v Farley [2001] NSWSC 326; 51 NSWLR 494 at [24]:

“This Court may decline to exercise its jurisdiction to grant prerogative relief where an appeal was available…But that is not mandatory. I do not refuse relief on that ground in the circumstances of this case. An appeal pursuant to s 104 would have been preferable, but I think that the day has passed when rights were lost because of the form of proceedings.” [Citations omitted]

54. However, I do not see the question here to be concerned merely with the "form of the proceedings". What is involved is a deliberate decision by the plaintiff not to avail himself of a right to appeal to a specialist tribunal, able and required to deal with the matter expeditiously. Instead, the plaintiff chose to approach the Court for prerogative relief in the hope of getting a better outcome. As I have said, had the plaintiff exercised his right to appeal to the Tribunal, the matter would almost certainly by now have been heard and may very well have been decided. Even now the plaintiff can apply to the Tribunal to appeal out of time.

55. For those reasons, I order that the amended summons be dismissed with costs.

**********

Decision last updated: 24 December 2015