Thompson v Racing Victoria Ltd - [2020] VSC 574

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…

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: [2020] VSC 574
Decision Date: 8 September 2020

CaseChat Overview and Summary

The matter of Thompson v Racing Victoria Ltd concerned the appeal by a racehorse trainer against a disqualification imposed by Racing Victoria Ltd following a decision by the Victorian Civil and Administrative Tribunal (VCAT). The trainer was disqualified for three months for allegedly failing to provide adequate nutrition to a horse and for one month (to be served concurrently) for failing to arrange necessary veterinary treatment. The trainer sought to overturn the disqualification, contending that the Tribunal had misinterpreted the relevant provisions of the Rules of Racing and had also erred in punishing the trainer for disputing the charges.

The legal issues before the court included the proper interpretation of the Rules of Racing and whether there was a basis for the Tribunal to impose a penalty for disputing the charges. The court had to determine if the Tribunal's findings were consistent with the applicable rules and whether the Tribunal had the authority to impose a penalty for disputing the charges.

The court found that the Tribunal had indeed misinterpreted the Rules of Racing, leading to an incorrect application of the rules to the facts. The court also concluded that the Tribunal had improperly punished the trainer for disputing the charges, which was an additional error. Consequently, the court allowed the appeal, set aside the decision of VCAT, and substituted an order for the dismissal of the charges against the trainer. This outcome was reached under the authority of the Racing Act 1958 (Vic) and the Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148.

Orders