Thompson v Racing Victoria Ltd
[2020] VSC 574
•8 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 01730
| JODY THOMPSON | Applicant |
| v | |
| RACING VICTORIA LIMITED (ACN 096 917 930) | Respondent |
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JUDGE: | Cavanough J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 August 2019 |
DATE OF JUDGMENT: | 8 September 2020 |
CASE MAY BE CITED AS: | Thompson v Racing Victoria Ltd |
MEDIUM NEUTRAL CITATION: | [2020] VSC 574 |
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ADMINISTRATIVE LAW – Appeal from Victorian Civil and Administrative Tribunal – Racehorse trainer disqualified for three months on charge alleging failure to provide nutrition for horse and for one month (to be served concurrently) on charge of failing to arrange necessary veterinary treatment – Rules of Racing – Interpretation – Charges and findings based on misinterpretation of relevant provisions of Rules of Racing – Additional error of punishing trainer for disputing the charges – Appeal allowed – Decision of VCAT set aside – Substitution of order for dismissal of charges – Racing Act 1958 (Vic) – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Levine | Maciel Pizzorno & Co |
| For the Respondent | Mr E Nekvapil | Minter Ellison |
HIS HONOUR:
Introduction and overview: a battling racehorse trainer challenges a disqualification
This is an application under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’), brought by Ms Jody Thompson, a licensed racehorse trainer, against Racing Victoria Limited (‘RVL’), the controlling body of the horse racing industry in Victoria, for leave to appeal from, relevantly, an order made by the Victorian Civil and Administrative Tribunal (‘VCAT’) on 5 April 2019. Pursuant to an order of this Court made by consent, the proposed appeal has been heard at the same time.
The matter before VCAT was an application by Ms Thompson under s 83OH of the Racing Act 1958 (Vic) (‘Racing Act’) (as that section stood at the relevant time) for review of a decision made on 11 April 2018 by the former Racing Appeals and Disciplinary Board (‘the Board’) by which the Board found proven two related charges that had been brought by RVL against Ms Thompson purporting to allege offences against RVL’s Rules of Racing. The first charge (as VCAT later described it) related to an alleged failure by Ms Thompson, during the period between late December 2016 and late January 2017, to provide proper and sufficient nutrition for a retired racehorse called Skating for Gold owned by her. The second charge alleged failure by her, prior to about 27 January 2017, to provide for veterinary treatment for Skating for Gold in respect of its body condition. The Board disqualified Ms Thompson for three months on the first charge and for one month on the second charge, the disqualifications to be served concurrently.
In accordance with its statutory charter, VCAT dealt with the application for review on a de novo basis. Ultimately however, it affirmed the Board’s decision. The combined effect of the Board’s decision and VCAT’s order, if they were to stand, would be to preclude Ms Thompson from pursuing her occupation as a licensed racehorse trainer, and to prevent her from otherwise participating in the racing industry, for a period of three months; and to require her to re-apply for a licence as at the end of that period. It is likely that she would lose clients and horses, and that her career and her business would be gravely damaged, if not brought to an end.
Ms Thompson has been involved in the racing industry for about 30 years and has been a licensed trainer for about 12 years. She trains at Kilmore in country Victoria. She has only a small stable. She is a single mother with no other source of income. Apart from this matter, no allegation of the present kind has ever been made against her. Quite the opposite. It was accepted by VCAT that she is of good character and has been an attentive owner and trainer of horses.[1] Indeed, her character references, which were numerous and all unchallenged, were glowing about Ms Thompson’s lifelong love of, and care for, horses. In those circumstances, by virtue of a series of stays, the disqualification has not so far taken effect and Ms Thompson continues to train.
[1]Thompson v Racing Victoria Limited (No 2) (Review and Regulation) [2019] VCAT 461 [52] (‘Thompson v Racing Victoria Limited (No 2)’).
In this Court, RVL has contested the grounds advanced by Ms Thompson in support of the proposed appeal but has not advanced any separate argument against the grant of leave to appeal. Hence, there is no need to consider the principles relating to the grant of leave to appeal under s 148 of the VCAT Act.[2]
[2]See Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331; Nekvapil and Pizer Victorian Administrative Law, vol 1 (update 195) [VCAT 148.160].
As I will explain in more detail, there are compelling legal grounds for setting aside VCAT’s substantive order and for substituting an order that the charges under the Rules of Racing against Ms Thompson be dismissed. The charges and the findings of liability involved misinterpretation of the relevant provisions of RVL’s Rules of Racing. On the facts alleged and found, which were not relevantly in dispute, Ms Thompson was plainly not in breach of those provisions. Even if, contrary to my view, those provisions did cover the present case, nevertheless VCAT’s order would need to be set aside, and the matter of penalty reconsidered, because VCAT erroneously used against Ms Thompson, on the question of penalty, the mere fact that she had contested the charges throughout.[3]
[3]Thompson v Racing Victoria Limited (No 2) (n 1) [51].
Leave to appeal should be granted and the appeal should be allowed.
The proceedings at VCAT
VCAT held two hearings. The first, on 27 November 2018, related to ‘liability’ as distinct from penalty. It led to the publication by VCAT on 16 January 2019 of a document entitled ‘Reasons’ stating that the two charges were found proven and setting out VCAT’s reasons for so finding. These reasons were appended to an ‘order’ of the same date (16 January 2019) giving procedural directions for a hearing on penalty.[4] The hearing on penalty duly took place on 14 March 2019. As already indicated, an order affirming the Board’s penalties was issued on 5 April 2019. It was accompanied by a further set of reasons.[5]
[4]Thompson v Racing Victoria Limited (Review and Regulation) [2019] VCAT 29 (‘Thompson v Racing Victoria Limited (No 1)’).
[5]Thompson v Racing Victoria Limited (No 2) (n 1).
Ms Thompson’s notice of appeal was filed in this Court on 18 April 2019. It stated that leave to appeal was sought in relation to both the order of 16 January 2019 and the order of 5 April 2019. Later, RVL contended that the notice of appeal was out of time in relation to VCAT’s order of 16 January 2019.[6] This contention was subsequently overtaken when both sides recognised that the real subject of the application for leave to appeal was VCAT’s (final and substantive) order of 5 April 2019, the validity of which was open to be tested by reference to the reasons on liability stated on 16 January 2019 (as well as by reference to the reasons on penalty stated on 5 April 2019) without any need for an extension of time.
[6]Respondent’s outline of submissions dated 1 July 2019, n 3.
The grounds of challenge as originally pleaded and their subsequent expansion
An appeal under s 148 of the VCAT Act may only be brought on a question of law. In her notice of appeal, Ms Thompson raised only one point on liability in relation to the first charge, being a point about the proper interpretation of the charge (as distinct from the proper interpretation of the rule on which the charge was based).[7] Subsequently, as I will soon mention, Ms Thompson’s attack on the liability finding on the first charge was broadened. The notice of appeal had included only one point on liability in relation to the second charge, being essentially a point of construction of the rule on which the second charge was based.[8] Finally, the notice of appeal had included numerous points in relation to the penalties imposed.[9] It may be thought that not all of Ms Thompson’s points relating to the penalties imposed raised a question of law for the purposes of s 148 of the VCAT Act, but that issue need not be pursued in any depth, because, in any event, both charges must be dismissed on grounds that, in my opinion, plainly do raise questions of law. In addition, Ms Thompson has at least one good ground going to penalty alone, as mentioned above. Neither the other grounds relating to penalty nor the original ground advanced in relation to liability on the first charge need be further mentioned.
[7]See paragraph 1 under ‘QUESTION OF LAW’ in the notice of appeal and paragraph 1 under ‘THE GROUNDS RELIED UPON ARE’ therein.
[8]See paragraph 2 under ‘QUESTION OF LAW’ in the notice of appeal and paragraph 2 under ‘THE GROUNDS RELIED UPON ARE’ therein.
[9]See paragraphs 3-11 under ‘QUESTION OF LAW’ in the notice of appeal and paragraphs 3-11 under ‘THE GROUNDS RELIED UPON ARE’ therein.
In the days leading up to the hearing, the Court raised with the parties, in writing, certain questions about the proper construction of the relevant offence-creating provisions of the Rules of Racing. This was done in accordance with the well-established duty of a court to adopt the interpretation of centrally relevant provisions of statutes, or of comparable instruments of a legislative nature, that it considers to be correct, whether or not that interpretation has been argued by the parties.[10]
[10]Accident Towing & Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529, 547; Coleman v Power (2004) 220 CLR 1, 93-94 [243] (Kirby J); D Pearce, Statutory Interpretation Australia (LexisNexis, 9th ed, 2019) [1.8].
Consequently, two days before the hearing, Ms Thompson filed a supplementary written submission, of three pages, arguing, principally, that VCAT had given too wide a meaning to the provision of the Rules of Racing on which the first charge was based.[11] This raised a ground of challenge to VCAT’s decision that had not been included in the notice of appeal. On the other hand, the substance of the point had been put to VCAT by counsel for Ms Thompson,[12] but VCAT had not referred to it in its reasons. In her supplementary written submissions, Ms Thompson also included further argument in support of her ‘liability’ point in relation to the second charge.
[11]Applicant’s further outline of submissions dated 13 August 2019.
[12]Transcript of Proceedings, Thompson v Racing Victoria Limited (Review and Regulation) (VCAT, Z276/2018, Senior Member A Dea, 27 November 2018) 121-122; Plaintiff’s Court Book 207-208.
On the day before the hearing, RVL filed a document entitled ‘Written Outline of Reply Submissions’. It was 16 pages long, comprising 90 paragraphs and 69 footnotes. It addressed in detail all of the questions which had been raised by the Court, together with the related points sought to be relied upon by Ms Thompson in her supplementary written submissions. It also addressed written submissions previously filed and served by Ms Thompson.
At the hearing, counsel for RVL formally opposed any application by Ms Thompson to raise anything not covered by her notice of appeal.[13] However, counsel acknowledged that he was ready to deal with all of the relevant points;[14] he expressly declined to seek an adjournment (though reserving his client’s position on costs);[15] and he declined to insist that the notice of appeal be formally amended as a condition of the grant of leave to Ms Thompson to rely upon the additional matters in question.[16] Accordingly, I granted leave to Ms Thompson to proceed as though the notice of appeal had been formally amended so as to raise all of the matters that had been referred to in the prior written communications to the parties from the Court.
[13]Transcript of Proceedings, Thompson v Victoria Racing Limited (Supreme Court of Victoria, S ECI 2019 01730, Cavanough J, 15 August 2019) 2-6.
[14]Ibid 3, 6.
[15]Ibid 5.
[16]Ibid 6.
The Rules of Racing generally
RVL’s Rules of Racing are a combination of national and local (State) rules. The national rules are promulgated by the Australian Racing Board, which is the national industry body. They are called the Australian Rules of Racing. The short description of an Australian Rule is ‘AR’. Like the controlling bodies of other racing jurisdictions in Australia, RVL adopts the Australian Rules as its own, subject to a set of Local Rules (‘LRs’). The combined rules are published together as the Rules of Racing of Racing Victoria.[17]
[17]See Racing Victoria Limited v Riley [2016] VSCA 230 [8] (‘Racing Victoria Limited v Riley’).
The Rules of Racing are amended from time to time. As indicated above, the allegations against Ms Thompson relate to the period from late December 2016 to late January 2017. Hence it is the version of the Rules that was in force at that time that governs the issues relating to liability.
On 1 August 2019, RVL revoked the Rules of Racing that had been in force in Victoria up to that date (‘the old Rules’) and replaced them with a new set of Rules of Racing (‘the new Rules’). The new Rules retain the AR/LR model. The change, of course, makes no difference to the liability issues in this case. However, the change was mentioned at the hearing before me because it was part of a larger set of reforms to jurisdiction over disciplinary matters in racing in Victoria. The Board, which had been established by the old Rules and which had been regulated in part by the Racing Act,[18] went out of existence. Its functions were, in substance, vested in a new body established by Division 1 of Part II of the Racing Act, namely, the Victorian Racing Tribunal. There was also a change to the role of VCAT. Under a substituted s 83OH of the Racing Act, applications to VCAT may now be made in relation to a penalty imposed by the Victorian Racing Tribunal, but not, it seems, in relation to a decision of that new Tribunal on liability. Before me, both sides said that if I were minded to set aside any part of VCAT’s decision on liability and to remit the matter for rehearing or redetermination, they wished to be heard on whether VCAT would retain jurisdiction to deal with the remitted matter. However, that issue does not arise, because, as already indicated, I consider that the Court should itself, under s 148(7) of the VCAT Act, substitute an order of dismissal for VCAT’s order.
[18]See Racing Act 1958 (Vic) (as in force between 2013 and 1 August 2019) s 5G.
Legally, the Rules of Racing of RVL are hybrid in nature – partly contractual and partly statutory.[19] Thus, as Garde J (sitting as the then President of VCAT) said in Kavanagh v Racing Victoria Ltd (Review and Regulation),[20] both the principles of statutory construction and the principles governing the construction of contracts may assist in construing the Rules of Racing.
[19]See Racing Act 1958 (Vic), especially ss 5E, 5F, 6, 7 and 24A. See also the former s 5G, which was in force at the time of the VCAT hearing and which was repealed as of 1 August 2019. In addition, see Riley v Racing Victoria Ltd [2015] VSC 527 [4] and [38] (Bell J) (‘Riley v Racing Victoria Ltd’) (reversed on other grounds: Racing Victoria Limited v Riley (n 17)); Kavanagh v Racing Victoria Ltd (Review and Regulation) [2017] VCAT 386 [600]-[602] (Garde J, President) (‘Kavanagh v Racing Victoria Ltd’) (reversed in part on other grounds: Racing Victoria Limited v Kavanagh [2017] VSCA 334 (‘Racing Victoria v Kavanagh’)).
[20]Kavanagh v Racing Victoria Ltd (n 19) [602].
The particular provisions under which Ms Thompson was charged
The charges against Ms Thompson were laid in March 2017. They were laid by RVL as Victoria’s ‘Principal Racing Authority’ as that expression is defined in AR 1 for the purposes of, among other rules, AR 175. They were laid under separate sub-paragraphs of paragraph (o) of AR 175. The first charge purported to rely on AR 175(o)(iv). The second charge purported to rely on AR 175(o)(iii). At the time, AR 175(o) was in the following form:
OFFENCES
AR 175
The Principal Racing Authority (or the Stewards exercising powers delegated to them) may penalise:
…
(o)Any person in charge of a horse who in their opinion fails at any time –
(i)To exercise reasonable care, control or supervision of a horse so as to prevent an act of cruelty to the animal;[21] and/or
(ii)to take such reasonable steps as are necessary to alleviate any pain inflicted upon a horse; and/or
(iii)to provide for veterinary treatment where such treatment is necessary for the horse and/or
(iv)to provide proper and sufficient nutrition for a horse.
[21]In AR 1 (definitions), the word ‘cruelty’ is defined as follows: “Cruelty” includes any act or omission as a consequence of which a horse is mistreated.
The last of the amendments which brought AR 175(o) into the form it took at the relevant time had been made on 1 September 2009.
The first charge: misinterpretation of AR 175(o)(iv)
As just mentioned, the first charge was purportedly based on AR 175(o)(iv). The particulars given in support were as follows:[22]
1.You are, and were at all relevant times, a trainer licensed by Racing Victoria, and a registered owner.
2.You are, and were at all relevant times, the owner of Skating for Gold, a horse which was retired on or about 8 November 2015.
3.In contravention of AR 175(o)(iv), during the period from approximately 25 December 2016 to about 27 January 2017, you failed to provide proper and sufficient nutrition for Skating for Gold.
[22]Thompson v Racing Victoria Limited (No 1) (n 4) [17].
As VCAT noted, there was no dispute that Ms Thompson was a licensed trainer and the owner of Skating for Gold, which had been retired from racing on or about 8 November 2015.[23] However, Ms Thompson has denied throughout that she had failed ‘to provide proper and sufficient nutrition for [Skating for Gold]’, within the meaning of AR 175(o)(iv), during the period in question.
[23]Ibid [18].
So far as the proper interpretation of AR 175(o)(iv) is concerned, Ms Thompson’s contention, which I accept, is that the obligation imposed (in effect) by AR 175(o)(iv) is to provide (in the sense of ‘make available’) proper and sufficient nutrition (in the sense of food or nutriment) for the relevant horse. On the other hand, RVL has always contended, and still contends, that AR 175(o)(iv) is ‘directed to making the person in charge of a horse responsible for ensuring – at all times – that a horse ingests sufficient amounts of appropriate food and drink to ensure that it has the nutrients it needs to maintain its physical health’.[24]
[24]RVL’s outline of reply submissions dated 14 August 2019 [34].
Hence, before the Board and at VCAT, RVL contended that Ms Thompson was liable to be punished under AR 175(o)(iv) notwithstanding the following relevant facts of this case, which were not controversial.
During the period in question, Skating for Gold was agisting in a paddock that was owned by a third party. The paddock had adequate suitable feed, in the form of grass and lucerne, for Skating for Gold and for the other horses that were agisting there at the time. The other horses did well in the paddock. However, during the period in question, Skating for Gold lightened off considerably in condition. The reason for this was associated with the fact that Skating for Gold had a severe habit of ‘wind sucking’. Wind suckers latch onto posts or rails with their teeth and suck in air. They do this instead of eating. So the habit needs to be managed. Ms Thompson was aware of Skating for Gold’s wind sucking habit. She usually managed the problem by causing the horse to wear a device called a wind sucking collar. The collar discouraged Skating for Gold from wind sucking. It would then eat in the normal way. Skating for Gold was wearing a wind sucking collar when it began its period of agistment in late December 2016. However, over the ensuing weeks, Skating for Gold was found to be without its wind sucking collar from time to time. An unnamed interloping third party, who objected to the use of wind sucking collars, had surreptitiously removed the collar being worn by Skating for Gold on three occasions during the month-long period in question. After each removal, Ms Thompson or a friend or family member who was inspecting Skating for Gold replaced the collar, but, in the meantime, as a result of the horse being without the collar for various periods during the month in question, the horse had become significantly undernourished. On 25 January 2017, Ms Thompson became alarmed at the state to which Skating for Gold had descended and, two days later (on 27 January 2017), she took the horse back to her stables. She wormed it and placed it on an intensive feeding program. It was still in poor condition when inspected by a steward and a veterinarian from RVL on 30 January 2017. That inspection led to the laying of the charges against Ms Thomson. Skating for Gold was fully recovered by no later than early March 2017.
VCAT found Ms Thompson liable on the first charge on the basis that she had not sufficiently supervised Skating for Gold when it was in the agisting paddock in the period up to 27 January 2017. According to VCAT, it was ‘no excuse’ that a third party had intervened to remove the wind sucking collar repeatedly. To the contrary, according to VCAT, this circumstance increased the level of responsibility attaching to Ms Thompson. According to RVL and VCAT, she ought to have visited Skating for Gold more often and supervised it more closely.
Whether or not VCAT’s criticisms of Ms Thompson’s conduct are fair, they do not show that Ms Thompson’s conduct amounted to a breach of AR 175(o)(iv). The interpretation of that provision adopted by RVL and (implicitly) by VCAT would stretch its words beyond breaking point. Unlike sub-paragraph (i) of AR 175(o), sub-paragraph (iv) makes no reference to ‘reasonable care’ or ‘control’ or ‘supervision’. Unlike sub-paragraph (ii), sub-paragraph (iv) makes no reference to the taking of ‘such reasonable steps as are necessary’ to achieve a particular purpose. Sub-paragraph (iv) does not speak of the relevant person ‘ensuring’ anything. Rather, the implied obligation is simply ‘to provide proper and sufficient nutrition for a horse’.
As to the word ‘nutrition’ itself, having regard to its immediate grammatical context in sub-paragraph (iv) and to its larger context in AR 175(o) as just mentioned, it is plain, in my opinion, that the word ‘nutrition’ is used in the second sense given in the Oxford English Dictionary (1989), namely, ‘that which nourishes; food, nutriment’. It is true that the primary meaning of the word ‘nutrition’, as indicated in the same dictionary, is the meaning it has as a ‘noun of action’, namely, ‘The action or process of supplying, or of receiving, nourishment’. But that primary meaning is simply inapplicable here. One does not speak of ‘providing’ the action or process of supplying, or of receiving, nourishment. Rather, one speaks of providing food or nutriment. That sense is further confirmed by the use of the adjectives ‘proper’ and ‘sufficient’ in conjunction with the verb ‘provide’. Additionally, the prescribed obligation is to provide proper and sufficient nutrition ‘for’ a horse. The prescribed obligation is by no means the same as an obligation to provide for the proper and sufficient nutrition of a horse. But, in effect, that is how VCAT read AR 175(o)(iv), at the urging of RVL. Indeed, as mentioned above, VCAT did not, in its reasons, even refer to the contrary interpretation of AR 175(o)(iv) that had been advanced on behalf of Ms Thompson. Compounding the error, VCAT spent large parts of its reasons on assessing whether Ms Thompson had complied with a certain code of practice relating to the welfare of animals to which the Rules of Racing made no reference.[25]
[25]Contrast AR 175(v) which, at the time, authorised the Principal Racing Authority to punish any person who committed a breach of a Code of Practice published by the Australian Racing Board.
As mentioned above, I agree with Garde J that both the principles of statutory construction and the principles governing the construction of contracts may assist in construing the Rules of Racing.[26]
[26]Kavanagh v Racing Victoria Ltd (n 19) [602].
So far as the principles of statutory construction are concerned, in my view, RVL’s (and VCAT’s) interpretation of AR 175(o)(iv) involves reading the provision as if it contained different words and additional words. In the language of the majority (French CJ, Crennan and Bell JJ) in Taylor v Owners – Strata Plan No 11564 (‘Taylor’),[27] RVL’s construction would make an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’. It is also at odds with what was said by the dissenting judges, Gageler and Keane JJ, in Taylor, in a passage which, as Emeritus Professor Pearce notes,[28] has come to be frequently cited, even though part of a dissenting judgment, as follows:[29]
Statutory construction involves attribution of legal meaning to statutory text, read in context. ‘Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning ... But not always.’ Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.
Context more often reveals statutory text to be capable of a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural. The choice between alternative meanings then turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies.
RVL’s approach would ‘divine unexpressed legislative intention’ and would seek to ‘remedy perceived legislative inattention’. It would amount to speculation, not construction. It would involve illegitimate ‘repair’. It would be ‘wholly ungrammatical or unnatural’.
[27](2014) 253 CLR 531, 548 [38] (‘Taylor’) citing Western Bank Ltd v Schindler [1977] Ch 1, 18 (Scarman LJ).
[28]Pearce (n 10) [2.55] and see also at [2.54], [2.56].
[29]Taylor (n 27) 556-557 [65]-[66] (citations omitted).
RVL’s interpretation is unacceptable for another reason, too. It would have draconian results in some situations. It would make the person in charge of a horse punishable for any undernourishment of the horse, even if the undernourishment occurred because of a condition of the horse such as cancer that interfered with its internal processing of nutrients or which occurred because the horse simply refused to eat or drink.[30] It may be that, depending on all the circumstances, such a situation would bring paragraph (i), (ii) or (iii) of AR 175(o) into play, but not paragraph (iv).
[30]Compare Richardson v Royal Society for the Prevention of Cruelty to Animals [2008] NSWDC 342 (esp at [42]), where, under the different statutory provisions applicable in that case, the owner of cattle sought unsuccessfully to rely by analogy on the adage ‘you can lead a horse to water, but you can’t make it drink’.
By contrast, Ms Thompson’s interpretation would give AR 175(o)(iv) its plain, ordinary, grammatical meaning, and a sensible operation. It may well involve an obligation on the person in charge of the horse to provide feed and nutriments that are appropriate for the particular horse, and to make them reasonably available to, and reasonably accessible by, the horse. But it does not require the person to do what might sometimes be impossible. In any event, contrary to RVL’s submissions, AR 175(o)(iv) does not, of itself, require the person to ‘ensure’ that the horse maintains good nutritional health at all times.
I turn to the principles governing the construction of contracts. Although what I have said already is ample, in my view, to require the adoption of Ms Thompson’s interpretation of AR 175(o)(iv), it may be that that result is fortified by a principle sometimes applied in the interpretation of contracts, namely, the contra proferentem principle. RVL is the author of the Rules of Racing. It is perhaps not too much to expect that RVL make clear what it requires of those governed by its Rules, especially where, as was the case in relation to AR 175(o), a contravention is deemed by the Rules to be a ‘serious offence’ punishable by, among other things, disqualification.[31] In Queensland All Codes Racing Industry Board v Thomas,[32] Carmody J, constituting the Queensland Civil and Administrative Tribunal, said that, because trainers and other participants in racing have no real choice but to agree to adhere to the Australian Rules of Racing if they wished to work in the industry in Australia, the terms of those Rules ‘are interpreted contra proferentem (strictly against the maker)’. I am inclined to agree with Carmody J that there is room for the application of the contra proferentem principle in relation to the Rules of Racing, but in this case I need not and do not finally decide whether that principle is applicable.
[31]See paragraph (f) of the definition of ‘serious offence’ in AR 1 and see also LR 6C, as those provisions stood at the relevant time.
[32][2016] QCATA 82 [69] citing Tucker v Auckland Racing Club [1956] NZLR 1, 15-16.
RVL did not suggest before me that the first charge against Ms Thompson was potentially sustainable even if RVL’s interpretation was erroneous and Ms Thompson’s interpretation was correct. It follows that, on the facts alleged and found in relation to the first charge, only one outcome was available to VCAT as a matter of law, namely, that the first charge be dismissed. Accordingly, there should be an order setting aside VCAT’s finding and penalty on the first charge and, in substitution, there should be an order that the first charge be dismissed.
The second charge: misinterpretation of AR 175(o)(iii)
The second charge was brought under sub-paragraph (iii) of AR 175(o), which is set out above. According to the particulars, Ms Thompson was charged that, in contravention of AR 175(o)(iii), ‘prior to about 27 January 2017’, she ‘failed to obtain veterinary treatment [for Skating for Gold] where such treatment was necessary for the horse in respect of the horse’s poor body condition’.[33]
[33]Thompson v Racing Victoria Limited (No 1) (n 4) [95]-[96].
Ms Thompson was found liable on this charge notwithstanding her submission to VCAT that, on the uncontested facts, no ‘veterinary treatment’ was necessary for Skating for Gold at the relevant time.[34]
[34]Ibid [99].
In my opinion, VCAT should have upheld Ms Thompson’s submission. VCAT rejected it in reliance on a misinterpretation of AR 175(o)(iii).
VCAT found that, as at 27 January 2017, it was ‘necessary’ that Skating for Gold be assessed by a veterinarian, including by way of the taking of blood and faecal samples for testing. This had in fact been done by RVL’s veterinarian, Dr Martin, when he visited Ms Thompson’s stables, in the absence of Ms Thompson, on 30 January 2017. Dr Martin’s report to RVL recommended a full veterinary investigation into the horse’s condition. However, Dr Martin did not recommend anything else. In particular, he did not recommend anything by way of a feeding program. In the meantime, Ms Thompson had, on 27 January 2017, commenced an intensive feeding program for Skating for Gold at the stables. She had done so on her own initiative. She arranged for her own veterinarian, Dr Miles, to attend on 31 January 2017. It seems that Dr Miles approved of what Ms Thompson had done by way of commencing the intensive feeding program.[35]
[35][2019] VCAT 29 [100]-[105].
According to VCAT, there were two things that answer the description of ‘veterinary treatment’ that were ‘necessary’ for Skating for Gold – first, the diagnostic assessment and testing done or recommended by Dr Martin; and, second, the ‘intensive feeding program’ that was ‘supported’ by Dr Miles.[36] In my opinion, it was not open to VCAT to hold that either of those things amounted to (necessary) ‘veterinary treatment’ within the meaning of AR 175(o)(iii) of the Rules of Racing. Contrary to the approach taken by VCAT, ‘veterinary treatment’, for the purposes of AR 175(o)(iii), does not cover mere assessment or diagnosis by a veterinarian. Nor does an intensive feeding program conducted by a lay owner of a horse amount to ‘veterinary treatment’, even if a veterinarian may subsequently ‘support’ it. VCAT’s reading of AR 175(o)(iii) travels well beyond the ordinary meaning of ‘veterinary treatment’. The most relevant meaning of ‘treatment’ in the Macquarie Dictionary[37] is ‘management in the application of medicines, surgery etc’. Here, no medicines were necessary. No surgery was necessary.
[36]Ibid [103], [104].
[37]3rd edition, 2253.
The parties did not refer me to any examples of the use of the expression ‘veterinary treatment’ in Victorian legislation, and I have not been able to find anything of that kind myself. However, as I mentioned to the parties at the hearing, there is a definition of the expression ‘veterinary treatment’ in the Prevention of Cruelty to Animals Act 1979 (NSW). It reads:
“veterinary treatment”, in relation to an animal, means:
(a)medical treatment of a prophylactic or therapeutic nature carried out upon the animal by, or in accordance with directions given in respect of the animal by, a veterinary surgeon, or
(b)surgical treatment of a prophylactic or therapeutic nature, or sterilisation, carried out upon the animal by a veterinary surgeon.
Plainly, nothing that occurred or that was recommended in the present case would fall within that definition.
On the other hand, there is a broad definition of ‘veterinary treatment’ in the Veterinary Practice Act 2003 (SA). It extends to ‘the diagnosis, treatment or prevention of a disease, injury or condition in an animal’. However, the very inclusion of the word ‘treatment’ itself in that definition tends to confirm that there is a real distinction between ‘diagnosis’ and ‘treatment’ in ordinary parlance.
RVL submitted before me that the present point raises only a question of fact, not a question of law. I disagree. VCAT adopted a meaning of ‘veterinary treatment’ that far exceeded its ordinary meaning. Whether it was correct to do so is plainly a question of law.
I see nothing in the text, context or purpose of AR 175(o)(iii) to warrant giving an extended meaning to the expression ‘veterinary treatment’ in that provision. Once again, to do so would be too much at variance with the language in fact used in the rule.[38] Likewise, VCAT’s approach amounts to speculation, not construction. It involves illegitimate ‘repair’.[39] Once again, I do not think it is necessary to resort to the principles of contractual interpretation and, in particular, to the principle of contra proferentem. On the other hand, if that principle were applicable, it would certainly favour Ms Thompson’s contention.
[38]Taylor (n 27) 548 [38].
[39]Ibid 548 [65]-[66].
In my view, the second charge, like the first charge, must be dismissed on the proper interpretation of the relevant provision of the Rules of Racing.
Error of law as to penalty
In its reasons on penalty,[40] VCAT said that it would accept the contention of counsel for Ms Thompson that specific deterrence was not a significant factor in this case ‘other than for the fact that Ms Thompson has disputed that charges throughout’. VCAT went on to say, in effect, that Ms Thompson, in doing so, was wrong to place responsibility on the person who removed the collar.[41] This matter clearly influenced VCAT’s conclusion that nothing short of a disqualification would suffice in this case.[42]
[40]Thompson v Racing Victoria Limited (No 2) (n 1) [51].
[41]Ibid.
[42]Ibid [58].
As it turns out, in my view, Ms Thompson was perfectly justified in disputing the charges. They were ill-founded. But even if that had not been so, VCAT would still have erred in law, in my opinion, by giving greater weight to specific deterrence merely because Ms Thompson disputed the charges.
In the criminal law, although a plea of guilty may be taken into account in mitigation, a convicted person may not be penalised for having insisted on his or her right to trial.[43] In 1998, in Hannebery v Legal Ombudsman,[44] the Court of Appeal suggested that there may need to be some caution applied in translating this principle of the criminal law to appeals from disciplinary proceedings at VCAT.[45] More recently, however, the Court of Appeal has tended to treat appeals from disciplinary proceedings at VCAT in much the same way as appeals on sentence coming up from the criminal courts.[46]
[43]Cameron v The Queen [2002] HCA 6; 209 CLR 339 [12]; Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656 at 663 [22].
[44][1998] VSCA 142.
[45]Ibid [21]-[22].
[46]See, eg, Stirling v Legal Services Commissioner [2013] VSCA 374 [63]-[77].
In my view, VCAT plainly erred in law in punishing Ms Thompson more severely because she disputed the charges. Even if I were wrong about the unmaintainability of the charges, the whole of the penalty imposed on Ms Thompson would need to be set aside and the matter reconsidered.
An addendum on construing the Rules of Racing: penal provisions and the principle of legality
In their written and oral submissions before me, the parties devoted quite some attention to the question whether, or to what extent, the Rules of Racing fell to be construed in accordance with the specific principles of statutory construction relating to penal provisions or the specific principle known as the principle of legality.
In Riley v Racing Victoria,[47] Bell J considered that there was much scope for the application of both principles, especially the principle of legality. His Honour’s judgment was overturned on appeal,[48] but without these principles being discussed by the Court of Appeal.
[47]Riley v Racing Victoria Ltd (n 19).
[48]Racing Victoria Limited v Riley (n 17).
Subsequently, in Kavanagh v Racing Victoria,[49] Garde J, sitting as the President of VCAT, appeared to follow and apply what Bell J had said in Riley v Racing Victoria in these respects.[50] On the other hand, the decision of Garde J was itself reversed in part by the Court of Appeal, although again without detailed consideration of the applicability to the Rules of Racing of these specific principles of statutory construction.[51] Before me, RVL contends, in reliance on two cases in particular, namely Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue[52] and WBM v Chief Commissioner of Police,[53] that the potential consequences for an individual who contravenes the Rules of Racing merely form part of the context in which the Rules of Racing are to be construed. RVL submits that this factor should be balanced against the potential consequences for the industry as a whole – and the ability of all its participants to carry on their business – if the reputation and integrity of the industry is brought into disrepute by a failure to discipline those who fall below appropriate standards.
[49]Kavanagh v Racing Victoria (n 19).
[50]Ibid [464]-[471].
[51]Racing Victoria v Kavanagh (n 19). See, in particular, at [22]-[26], [40], [79], [83] (Maxwell P). Compare Kavanagh v Racing New South Wales [2019] NSWSC 40, esp at [25] (Fagan J).
[52](2009) 239 CLR 27, 49 [57] (Hayne, Heydon, Crennan and Kiefel JJ).
[53](2012) 43 VR 446.
As indicated above, I see no need to go beyond the general principles of construction of statutes and like instruments to determine the issues in the present case. I need not, and do not, rely on the principle relating to the strict construction of penal provisions or the principle of legality.
Conclusion and orders
For these reasons, the appeal must be allowed and the charges must be dismissed.
The Court will make an order to the following effect:
(1) The applicant have leave to appeal.
(2) The appeal be allowed.
(3) The decision and order made by the Victorian Civil and Administrative Tribunal on 5 April 2019 in proceeding number Z276/2018 be set aside. In lieu of that decision and order, there be a decision and order as follows:
(a) the decisions of the Racing Appeals and Disciplinary Board made on 23 March 2018 and 11 April 2018 respectively (‘the RADB decisions’) be set aside;
(b) in substitution for the RADB decisions, there be a decision and order that the charges brought by Racing Victoria Limited against Ms Jody Thompson be dismissed.
Costs
Provisionally, it seems to me that RVL should pay Ms Thompson’s costs of the proceeding in this Court (including any reserved costs) on the standard basis. If either party wishes to contend that some different order as to costs should be made, then, unless agreement is reached between the parties, that party should file and serve a written submission as to costs within 14 days and the opposite party should file and serve a reply within 14 days thereafter.
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