Tardio v Harness Racing Victoria - [2018] VSC 722

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2018 00863

NICOLA TARDIO	Applicant
v
HARNESS RACING VICTORIA	Respondent

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JUDGE:	Cavanough J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 November 2018
DATE OF JUDGMENT:	16 November 2018 (These revised reasons for judgment published on 21 November 2018)
CASE MAY BE CITED AS:	Tardio v Harness Racing Victoria
MEDIUM NEUTRAL CITATION:	[2018] VSC 722

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ADMINISTRATIVE LAW – Appeal from Victorian Civil and Administrative Tribunal on questions of law – Tribunal made order dismissing proceeding for failure to comply with procedural steps – Where no reference in order or reasons to statutory basis for order – Where Tribunal registry later advises that order was based on s 78 of Victorian Civil and Administrative Tribunal Act 1998 – Where no finding that applicant’s conduct unnecessarily disadvantaged the respondent – Where no finding that the applicant did not have a reasonable excuse for failing to comply with procedural steps – Failure to take into account mandatory considerations – Error found – Victorian Civil and Administrative Tribunal Act 1998 ss 78, 97, 98(1)(a), 148.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D O’Dea, solicitor	O’Dea Lawyers
For the Defendant	Mr A Anderson	—

HIS HONOUR:

This is an application for leave to appeal and, if leave be granted, an appeal, under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’), against an order made by the Victorian Civil and Administrative Tribunal (‘VCAT’) on 23 July 2018.

The order was made in the Administrative Division of VCAT, in the Review and Regulation List.

The applicant in VCAT was Nicola Tardio (the present applicant) and the respondent was Harness Racing Victoria (the present respondent).

The matter before VCAT was an application for review of a decision of the Harness Racing Victoria Racing Appeals and Disciplinary Board (‘the Board’) under the Racing Act 1958.

On 21 February 2018 the Board had found Mr Tardio guilty of breaches of r 190(1) of the Australian Harness Racing Rules in relation to the administration of a drug (cobalt) to horses engaged in harness races. The Board had disqualified Mr Tardio for 18 months.

On 15 March 2018 Mr Tardio applied to VCAT, as of right, for a de novo review of the Board’s decision.

On 19 March 2018 VCAT granted a stay of the Board’s decision.

Between 16 April 2018 and 23 July 2018 there were various steps taken at VCAT. Those steps included procedural orders for the filing of witness statements and expert reports, for adjournments and for the payment of VCAT hearing fees. In particular, on 11 July 2018 VCAT made an order (which may have been intended to be in the nature of a self-executing order) requiring, in effect, that Mr Tardio, by 20 July 2018, file and serve an expert report in proper form (in accordance with PNVCAT2) from Professor Colin Chapman, whom Mr Tardio was…

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: [2018] VSC 722
Decision Date: 16 November 2018 (These revised reasons for judgment published on 21 November 2018)

CaseChat Overview and Summary

Tardio brought a proceeding before the Victorian Civil and Administrative Tribunal, which was dismissed for failure to comply with procedural steps. The Tribunal did not reference the statutory basis for the dismissal in its order or reasons. The applicant sought judicial review of the Tribunal’s decision. The court was required to determine whether the Tribunal made an error of law in dismissing the proceeding without proper statutory reference and whether the Tribunal considered all mandatory considerations.

The court found that the Tribunal did not properly reference the statutory basis for its dismissal of the proceeding. The Tribunal's order did not mention the relevant statute, and its reasons did not clarify the basis for the order. The court held that this was an error of law. Furthermore, the Tribunal failed to consider mandatory considerations as required by the statute. The court found that the Tribunal did not make findings about whether the applicant’s conduct unnecessarily disadvantaged the respondent or whether the applicant had a reasonable excuse for the non-compliance. These omissions constituted a failure to take into account mandatory considerations, leading to an error of law.

The court quashed the Tribunal's decision and remitted the matter back to the Tribunal for reconsideration. The court highlighted that the Tribunal must properly reference the statutory basis for its orders and ensure all mandatory considerations are addressed. The court emphasised that the Tribunal’s failure to do so resulted in an unlawful decision.

Orders