Vasili v Racing New South Wales

[2018] NSWSC 451

Supreme Court

New South Wales

Medium Neutral Citation:	Vasili v Racing New South Wales [2018] NSWSC 451
Hearing dates:	14 February 2018
Date of orders:	13 April 2018
Decision date:	13 April 2018
Jurisdiction:	Common Law
Before:	Garling J
Decision:	(1)   Stand proceedings over for directions to 9:30am on 27 April 2018. (2)   Direct that the parties exchange Short Minutes of Order setting out the orders for which each contends by 4pm 20 April 2018. (3)   Direct that the parties are to provide a copy of any Short Minutes of Order to my Associate at that time.
Catchwords:	ADMINISTRATIVE LAW – judicial review – decisions of Racing Appeals Panel and Racing Appeals Tribunal – finding of improper practice in connection with racing – procedural fairness – no evidence – irrelevant consideration alleged to be taken into account – validity of regulations – whether time limit imposed by regulations was arbitrary or capricious – whether jurisdiction of the Tribunal was limited to grounds of appeal raised – constructive failure to exercise jurisdiction – jurisdictional error established   STATUTORY CONSTRUCTION – interpretation of regulations consistently with enabling Act – principle of implied repeal by statute
Legislation Cited:	Australian Rules of Racing Justices Act 1902 (Repealed) Racing Appeals Tribunal Act 1983 Racing Appeals Tribunal Regulation 2015 Thoroughbred Racing Act 1996 Thoroughbred Racing Legislation Amendment Act 2004
Cases Cited:	Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 Beadle v Director-General of Social Security [1985] FCA 234; (1985) 60 ALR 225 Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 34 AAR 270; 70 ALD 622 Hall v Manahan [1919] St R Qd 217 In the Matter of the Appeal of Licensed Trainer Kevin Moses (Racing Appeal Panel, 9 October 2015, unrep) Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Magrath v Goldsborough Mort & Co Ltd [1932] HCA 10; (1932) 47 CLR 121 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1 Shergold v Tanner [2002] HCA 19; (2002) 209 CLR 126 TN v Walford (1998) 126 NTR 8
Texts Cited:	D C Pearce and R S Geddes, Statutory Interpretation in Australia (7th ed, 2011, LexisNexis Butterworths)
Category:	Principal judgment
Parties:	Angelis Vasili (P) Racing New South Wales (D1) Racing Appeals Panel (D2) Racing Appeals Tribunal (D3)
Representation:	Counsel: J Hmelnitsky SC / D Hume (P) P Braham SC / J Hutton (D1) Submitting (D2) Submitting (D3)   Solicitors: A Foley, Solicitor (P) P Sweeney – Racing NSW (D1, D2) Crown Solicitor’s Office (D3)
File Number(s):	2017/240053
Publication restriction:	Not Applicable

Judgment

1. By Summons filed on 1 September 2017, Mr Angelis Vasili sought judicial review with respect to two decisions, one by a body called the Racing Appeal Panel (“the Panel”), which was made on 2 March 2017, and the second, a decision of the Racing Appeals Tribunal (“the Tribunal”) made on 21 July 2017.

2. The first defendant named in the Summons is Racing New South Wales (“Racing NSW”). It is the active defendant. The Panel and the Tribunal are the second and third defendants respectively. They have filed submitting appearances, and have not taken part in the proceedings.

Racing NSW

3. Racing NSW is a body corporate established by the Thoroughbred Racing Act 1996 (“the Act”). The Act, by s 5, provides that Racing NSW does not represent the Crown and is not subject to direction or control by or on behalf of the government.

4. It has a number of functions provided for by s 13 of the Act. Principally, it is given all of the functions of the Principal Club for NSW and the Committee of the Principal Club for NSW under the Australian Rules of Racing (“the ARR”). Through that mechanism it controls, supervises and regulates horse racing in NSW.

5. Racing NSW employs, amongst others, stewards to supervise the application of the ARR to all those who participate in thoroughbred racing. From time to time stewards, by inquiry, adjudicate on potential breaches of the ARR and if satisfied that a breach has occurred, impose penalties which may include warning off or suspension.

6. Section 42 of the Act provides for a right of appeal. It is in the following relevant form:

“1.   A person aggrieved by any of the following decisions of a racing authority has a right of appeal against the decision to the Appeal Panel:

(a)   a decision to disqualify or warn off any person;

(b)   …

(c)    a decision to revoke the license or registration of any person or suspend (for any period) any such license or registration.”

7. The Stewards of Racing NSW are a racing authority within the meaning of that subsection: s 42(2)(a) of the Act.

Racing Appeals Panel

8. Section 45 of the Act provides for the membership of the Panel. It provides that Racing NSW is to appoint suitably qualified people to be members of the Panel. A member of Racing NSW cannot be a member of the Panel. The section also provides that at least one member of the Panel is to be an Australian lawyer of at least seven years standing. Members of the Panel hold office for four years from appointment and are eligible to be re-appointed.

9. Section 46 of the Act provides that Racing NSW is to appoint one of its members as the principal member of the Panel. That person must be a lawyer at least seven years standing. It is the principal member’s responsibility under s 47 of the Act to constitute the Panel for a particular appeal. The Panel must consist of at least three members, one of whom must be the principal member: s 47 of the Act.

10. Section 43 provides that an appeal to the Panel is to be by way of a new hearing and fresh evidence, or additional evidence may be given on an appeal. Section 43(3) provides that the Panel is not bound to act in a formal manner, it is not bound by the rules of evidence and is to make its decision:

“… on the real merits and justice of the case and is not bound to follow strict legal precedent.”

11. Section 44 provides that the Panel in determining an appeal may do any one of the following:

1. dismiss the appeal;

2. confirm the decision appealed against or vary the decision by substituting any decision that could have been made by the racing authority;

3. refer any matter relating to the decision appealed against the racing authority for rehearing; and

4. make such other order in relation to the disposal of the appeal as the Panel thinks fit.

Racing Appeals Tribunal

12. The Tribunal is constituted under the Racing Appeals Tribunal Act 1983 (“the Tribunal Act”). The Tribunal is constituted by a “qualified person” appointed by the responsible Minister upon the recommendation of the Attorney‑General: s 6. To be a qualified person, the individual needs to be:

“… A judge of any court in New South Wales, a retired judge of any court (whether or not in New South Wales) or a person qualified to be appointed as a judge of the District Court.” : s 4(1) Tribunal Act

13. In light of the arguments advanced, which will be later addressed, it is appropriate to set out certain of the provisions of the Tribunal Act.

14. Section 15 deals with appeals to the Tribunal. It is in the following form:

“15   Appeals to tribunal

(1)    A person who is aggrieved by any of the following decisions may, in accordance with the regulations, appeal against the decision to the Tribunal:

(a) a decision of the Appeal Panel on an appeal under the Thoroughbred Racing Act 1996,

(b)    …,

(c)    …,

(d)    a decision of Racing NSW.

(2)    Racing NSW may, in accordance with the regulations, appeal to the Tribunal against the following decisions:

(a) a decision of the Appeal Panel on an appeal under the Thoroughbred Racing Act 1996,

(b)    …,

(c)    ...”

15. The Tribunal is also empowered to deal with appeals relating to greyhound racing and harness racing.

16. Division 3 of Part 3 of the Tribunal Act deals with procedure and regulations relating to any appeal to the Tribunal. Significant submissions were made with respect to these provisions. It is appropriate to set them out in full.

17. Section 16 is in the following form:

“16    Procedure on appeal

(1)    An appeal to the Tribunal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the decision appealed against was made, may be given on the appeal.

(2)    Proceedings on an appeal are to be held as in open court before the Tribunal.”

18. Section 17 is in the following form:

“17    Determination of appeals relating to thoroughbred racing

(1)    The Tribunal may do any of the following in respect of an appeal under section 15:

(a)    dismiss the appeal,

(b)    confirm the decision appealed against or vary the decision by substituting any decision that could have been made by the Appeal Panel, …,

(c)    refer any matter relating to the decision appealed against to the Appeal Panel, … rehearing (in accordance with directions given by the Tribunal),

(d)    make such other order in relation to the disposal of the appeal as the Tribunal thinks fit.

(2)    The decision of the Tribunal is final and is taken (except for the purposes of an appeal against the decision under this Act or the Thoroughbred Racing Act 1996) to be the decision of the Appeal Panel, ...”

19. Section 18 is in the following form, and is the regulation-making power in the Tribunal Act. It says:

“18    Regulations respecting appeals

(1)    The regulations may make provision for or with respect to appeals to the Tribunal under this Act and, in particular, for or with respect to:

(a)    the procedures to be followed at or in connection with any appeals under this Act,

(b)    the suspension of a decision appealed against under this Act pending the determination of the appeal,

(c)    the payment of fees and costs in respect of appeals under this Act, and

(d)    any matters incidental to or connected with appeals under this Act.

(2)    Without affecting the generality of subsection (1), the regulations may:

(a)    prescribe classes of matters in respect of which appeals may not be made under this Act, or

(b)    provide that no appeals may be made under this Act except in respect of prescribed classes of matters.”

Tribunal Regulation

20. Pursuant to the regulation-making power in the Tribunal Act, a regulation was made. It was entitled Racing Appeals Tribunal Regulation 2015 (“the Regulation").

21. Clause 4 of the Regulation provides that appeals to the Tribunal under the Tribunal Act are to be made in accordance with Part 2 of the Regulation.

22. Importantly, some clauses apply to the procedure for any appeal to the Tribunal. Because of the nature of the argument on this application, it is appropriate to set out in full the relevant clauses of the Regulation, which are found in Part 2.

23. Clause 6 deals with procedure for appeals by aggrieved individuals, a term which would include Mr Vasili. It is in the following form:

“6    Procedure for appeals (other than appeals by Racing NSW)

(1) An appeal under section 15 (1) of the Act is to be initiated by lodging a written notice of appeal with the Secretary:

(a) for an appeal made under section 15 (1) (a), (b) or (d) of the Act — within 7 days of the date on which the appellant is notified of the decision appealed against (or such longer period as the Tribunal may allow under subclause (7)), or

(b)    ...

(2)    The Secretary is, on receiving a notice of appeal:

(a)    to forward notice of the appeal to the Tribunal, and

(b)    if the placing of any horse may be affected by the result of the appeal, to give a copy of the notice of the appeal to the owner of the horse (if the owner is not the appellant) and to the race club concerned, and

(c)    if the decision appealed against was made as a result of a hearing or inquiry, to serve on the appellant a transcript of the evidence taken at the hearing or inquiry.

(3)    If a transcript of evidence referred to in subclause (2)(c) is not available to the Secretary on receiving a notice of appeal, the Secretary is to serve it on the appellant as soon as it becomes available.

(4)    If the decision appealed against was made as a result of a hearing or inquiry, the appellant is to lodge with the Secretary a written notice of the grounds of appeal within 7 days of receiving a transcript of the evidence taken at the hearing or inquiry. The appeal is to be limited to those grounds, except by leave of the Tribunal.

(5)    On receiving notice of the grounds of appeal under subclause (4), the Secretary is to forward a copy of the notice to the Tribunal along with a transcript of the evidence taken at the hearing or inquiry in respect of the decision appealed against.

(6)    ...

(7)    The Tribunal may, on written application of the appellant being lodged with the Secretary, extend the time:

(a)    for lodging a notice of appeal under subclause (1)(a), or

(b)    for lodging a notice of the grounds of appeal under subclause (4),

or both, if satisfied that special or exceptional circumstances exist that justify the extension.”

24. Clause 7 may be contrasted with cl 6. It deals with the procedure for appeals by Racing NSW and is in the following form:

“7    Procedure for appeals by Racing NSW

(1) An appeal under section 15(2) of the Act is to be initiated by lodging a written notice of appeal with the Tribunal:

(a) for an appeal made under section 15 (2)(a) or (b) of the Act —within 2 months of the date on which the decision to be appealed against is made, or

(b)    ...

(2)    A notice of appeal under subclause (1) is to include the grounds of appeal and a transcript of the evidence taken at the hearing in respect of the decision appealed against.

(3)    The Secretary is, on the lodging of a notice of appeal with the Tribunal:

(a)    to serve the following on the respondent:

(i) notice of the appeal,

(ii) notice of the grounds of appeal,

(iii) a transcript of the evidence taken at the hearing in respect of the decision appealed against, and

(b)    if the placing of any horse may be affected by the result of the appeal, to give a copy of the notice of the appeal to the owner of the horse (if the owner is not the respondent) and to the race club concerned.

(4)    The Tribunal may, on written application of Racing NSW being lodged with the Secretary, extend the time for lodging a notice of appeal under subclause (1)(a) if satisfied that special or exceptional circumstances exist that justify the extension.”

25. Division 4 of Part 2 of the Regulation deals with appeals generally and provides the Tribunal with the power to order that there be a stay of the decision of the Panel until the hearing before the Tribunal.

26. Clause 15 of the Regulation provides that once an appeal is duly lodged, it “… may not be withdrawn except the leave of the Tribunal”. The Tribunal can impose conditions “… as to the payment of costs or otherwise …” with respect to any grant of leave to withdraw.

27. Clause 16 deals with evidence on appeal. It is in the following form:

“(1)   The Tribunal, when hearing an appeal, is not bound by the rules of, or practice as to, evidence but may inform itself of any matter in such manner as it thinks fit.

(2)   The Tribunal may require a witness to be examined on oath or affirmation, or may require evidence to be proven by statutory declaration.”

28. Clause 18 of the Regulation deals with the conduct of the appeal and provides as follows:

“(1) The Tribunal may, subject to the Act and this Part, direct the manner in which an appeal is to be conducted.

(2)   Without limiting (1), the Tribunal may make directions as to the preparation of the matter for appeal (including directions to the appellant to provide to the Tribunal any names of witnesses who may provide statements and the nature of any other documents, on which the appellant intends to rely).”

29. Clause 21, which did not apply to the appeal in question, would apply to the procedure of the Tribunal if an appeal concerned either the disqualification of any Thoroughbred horse, any horse participating in harness racing or any greyhound. This clause permits a person who may be affected, whether adversely or not, by the decision of the Tribunal to, with leave of the Tribunal, appear and make submissions before it in relation to the appeal and to adduce evidence in accordance with the Tribunal Act.

Relevant Facts

30. It is now necessary to consider the relevant facts, in light of the statutory power of both the Panel and the Tribunal.

31. The plaintiff, Mr Vasili, has been involved in Thoroughbred racing in NSW for about 40 years. He owns a stabling facility at Warwick Farm and, during the relevant time of these proceedings, was the registered owner of five Thoroughbred racehorses.

32. In June 2016, two of his five horses were being trained and were under the care of a licensed trainer, Mr Thompson. They were stabled at Mr Thompson’s stables, which were nearby to those of Mr Vasili.

33. On 28 June 2016, Mr Thompson suffered a heart attack and it became apparent that he would be unable to train racehorses again. Urgent arrangements were made to ensure the proper care of the two horses at Mr Vasili’s stables, which Mr Thompson was training.

34. On 7 July 2016, a licensed trainer, Mr Con Karakatsanis, agreed to take over the training of the two horses but informed Mr Vasili that his stables at Warwick Farm were full. The two horses were moved from Mr Thompson's premises to Mr Vasili’s premises on 8 July 2016. A third horse which had been spelling was returned to stables on 9 July 2016, and all three horses fell under Mr Karakatsanis’ care. The final two horses returned from another trainer's premises and spelling in August 2016. They joined the other horses in Mr Vasili’s stables. Mr Karakatsanis agreed to take over the training of one of those horses.

35. On 16 August 2016, Racing NSW Stewards attended Mr Vasili’s stables and undertook an investigation with respect to the identity of the trainer of all five horses owned by Mr Vasili.

36. On 22 August 2016, the Stewards conducted an inquiry into the bona fides of the training arrangements of the five racehorses.

37. Following the conclusion of that Stewards Inquiry, on 24 August 2016, Mr Vasili was charged by Racing NSW Stewards with an offence contrary to r 175(a) of the ARR.

38. Rule 175(a) of the ARR is in the following form:

“The Principal Racing Authority (or the Stewards exercising powers delegated to them) may penalise;

(a)   any person who, in their opinion, has been guilty of any dishonest, corrupt, fraudulent, improper or dishonourable action or practice in connection with racing.”

39. Mr Vasili was charged with engaging in improper practice in connection with racing. The particulars provided were that during the period 7 July 2016 to 16 August 2016, he was in fact the trainer of his five horses whilst not being the holder of a current trainer's licence, and that he had improperly held out Mr Karakatsanis as their trainer. Mr Karakatsanis was charged with an offence against the same rule.

40. Racing NSW Stewards conducted a formal hearing on 12 September 2016, and found Mr Vasili guilty of the charge. They disqualified him for four months.

41. Mr Vasili immediately lodged a Notice of Appeal to the Panel to challenge both the conviction and the penalty. His right to do so was contained within s 42 of the Act. Mr Karakatsanis also appealed.

42. The procedure on an appeal to the Panel is that fixed by s 43, to which earlier reference has been made.

43. A hearing was conducted by the Panel on 20 February 2017. Racing NSW was represented before the Panel by the Chief Steward, whilst lawyers appeared for Mr Vasili and Mr Karakatsanis.

44. The Panel received a number of documentary exhibits and heard oral evidence by both Mr Vasili and Mr Karakatsanis. They were both cross‑examined.

45. The Panel published its written decision on 2 March 2017.

46. The Panel found that Mr Vasili, although an unlicensed person, was in fact training the horses and had control of them. It also found that Mr Karakatsanis, a licensed trainer, who had held himself out to the racing authorities as being the trainer of the five horses, was not in fact training them.

39. The Panel then dealt with the submission as to whether such conduct could amount to an “improper practice” within the meaning of r 175(a) of the ARR.

40. The Panel concluded that, in order for there to be an improper practice under that rule, it needed to be satisfied that:

“… A practice must be a serious matter which has some of the flavour of dishonesty, corruption, fraud or dishonourable-type conduct…”

49. The Panel went on to express this conclusion:

“40   … However, we find Mr Karakatsanis clearly held himself out to a racing authority and to the Stewards as being the trainer of horses that he was not in fact training. In our view, this is clearly an “improper practice” within the meaning of that term in AR 175(a). The Panel is comfortably satisfied that a licensed trainer who holds himself/herself out to a racing authority and to Stewards as being the trainer of horses that he is not in fact training, has engaged in serious misconduct that falls within the meaning of ‘improper practice’ in ARR 175(a).

41   Equally, Mr Vasili's conduct, in allowing Mr Karakatsanis to hold himself out as the trainer of the five horses when it was in fact Mr Vasili who was actually training them, is also serious misconduct of the kind that, in our view, constitutes an ‘improper practice’ within the meaning of ARR 175(a).”

50. The Panel went on to consider the appropriate penalty. In respect of Mr Karakatsanis, the Panel considered that the appropriate penalty was two months suspension in lieu of the four month period of suspension imposed by the Stewards. With respect to Mr Vasili, the Panel substituted a fine of $10,000 for the four months suspension which the Stewards had imposed.

51. Mr Vasili, although not agreeing with the decision of the Panel, took the view that it would be expedient and more cost-effective to pay the fine imposed by the Panel and not to exercise his right of appeal to the Tribunal.

52. On 10 March 2017 (seven days after the delivery of the judgment of the Panel), the time fixed by cl 6(1) of the Regulation by which Mr Vasili was entitled to appeal expired.

53. On 15 March 2017, Mr Vasili’s lawyer, who was attempting to make arrangements for her client to pay the fine, was first informed that Racing NSW intended to appeal against the Panel’s decision on penalty and so did not intend to collect the fine.

54. On 20 April 2017, which was within the time fixed by cl 7(1)(a) of the Regulation, Racing NSW lodged an appeal with the Tribunal. The appeal was to be “against the leniency of the penalty”. The Notice nominated four “grounds” which, in short, sought a finding that the Panel’s penalty was manifestly inadequate and that the penalty of disqualification imposed by the Stewards ought be reinstated.

55. On 23 April 2017, Mr Vasili filed a Notice of Appeal with the Tribunal. That Notice sought to appeal against the whole of the Panel’s decision on two grounds – both of which related to the Panel’s conclusion that Mr Vasili had been in breach of r 175(a) of the ARR. This Notice also sought an extension of time under cl 6(7) of the Regulation, although maintaining that in light of Racing NSW’s appeal, no extension was in fact necessary.

56. On 8 May 2017, a Notice of the Grounds of Appeal was filed. This Notice specified three grounds of appeal, identifying specific errors of the Panel which related to both matters of fact and also proper interpretation of r 175 of the ARR.

57. After Mr Vasili lodged his documents, at the direction of the Tribunal, submissions were exchanged with Racing NSW on the question of whether an extension of time was necessary and, if so, whether it should be granted. The last submission was received on 12 June 2017.

58. It is sufficient for present purposes to note that the Tribunal delivered an interlocutory decision on 21 July 2017. There had been no oral hearing, and the decision of the Tribunal was one determined on the papers.

59. For the reasons it published, the Tribunal determined that it would not extend time for Mr Vasili to appeal to it, and determined that the Tribunal would proceed to hear the Racing NSW appeal: “… on severity alone”.

Submissions to the Tribunal

60. Mr Vasili made the first set of submissions. The submissions sought an extension of time pursuant to the Regulation.

61. The submissions commenced by reciting the appropriate background to the Panel decision and the documents lodged with the Tribunal after that time.

62. In particular, the submissions noted that on 1 May 2017, the Tribunal had given Mr Vasili leave to file submissions in support of the application to extend time. However, in so submitting, Mr Vasili made his position quite clear. His position was that the nature of the jurisdiction being exercised by the Tribunal, once engaged by the Notice of Appeal lodged by Racing NSW, meant that he did not need leave to appeal out of time, because the appeal to be conducted by the Tribunal involved a review of the whole of the decision of the Panel, including the findings of breach of the relevant ARR.

63. The submissions drew attention to the fact that an appeal to the Tribunal was properly described as a “de novo appeal”. The submissions drew attention to the provisions of s 16(1) of the Tribunal Act, as well as the broad reach of the Tribunal’s powers in the determination of any appeal.

64. Mr Vasili’s submissions noted that as a matter of procedural fairness, it would be open to, and it may be convenient for, the Tribunal to permit Mr Vasili to file the document identifying grounds of appeal upon which he relied in contending that the findings below should be set aside. The submissions noted the provisions of cl 18 of the Regulation which enabled such conduct to be undertaken.

65. The second basis of the submissions, which was put in the alternative, was that cl 6 of the regulation was invalid to the extent that it imposed a seven day time limit for the lodging of a Notice of Appeal by any party other than Racing NSW. It was submitted that such a clause was not authorised by ss 18 and 23 of the Tribunal Act.

66. Mr Vasili submitted that the seven day time limit imposed upon him (and other parties in his position) was arbitrary or capricious and failed to meet the fundamental requirements of reasonableness and proportionality in the exercise of the regulation-making power. He contrasted the very limited time permitted by cl 6(1) with the fact that Racing NSW had two months to lodge an appeal, pursuant to cl 7(1). In particular, his submissions drew attention to the differential expiry dates for appeal in this way:

“20   It is capricious and manifestly unfair to permit Racing NSW to sit by and let the seven days expire before initiating an appeal against sentence, knowing that the conviction is thereby insulated against appeal, subject to the discretion in rule 6(7).

21    That Parliament would not have intended to permit this kind of irrationality and capriciousness and is fortified by the penal context. Indeed, in penal legislation, the ordinary position is that the appeal rights of the prosecutor are narrower than those of the accused, see, e.g., Lacey v R (2011) 242 CLR 573 at [16]; Griffiths v R (1977) (137 CLR 293 at 310.”

67. The submissions contended for a reading down of the clause to the extent of its unreasonableness.

68. The third submission put was that, having regard to all of the events, leave should be granted to Mr Vasili to lodge a Notice of Appeal out of time.

69. It was noted that although special or exceptional circumstances needed to exist, the circumstances in this case would justify an extension. It was submitted that consistent with general principle the phrase “special or exceptional circumstances” would include matters which “… would render the [usual time limit] unfair or inappropriate”: Beadle v Director-General of Social Security [1985] FCA 234; (1985) 60 ALR 225 at 228-229.

70. The submissions pointed out that the explanation for the delay by Mr Vasili was simple and adequate. Pragmatically, he did not wish to appeal against conviction because he would accept the penalty. He had no inkling that there would be an appeal against the penalty until well after the time expired. Secondly, he submitted that it was unfair to permit Racing NSW to appeal against the penalty while not permitting Mr Vasili to appeal against the conviction. Thirdly, he submitted that in resolving Racing NSW’s penalty appeal, the Tribunal would necessarily need to determine what conduct Mr Vasili had engaged in. That was because the appeal is by way of a “new hearing”. He noted that the Tribunal was not bound by the findings made by the Panel and that, accordingly, unless he could put his conviction in issue there was a risk of inconsistent findings between the Panel and the Tribunal.

71. Finally Mr Vasili submitted that:

“If Mr Vasili is unable to appeal to the Tribunal against the Panel's findings, he will be entitled to seek (and intends to seek) prerogative relief in respect of the decision [of the Appeal Panel] in the Supreme Court of New South Wales: he would have exhausted his non-judicial appeal rights. That creates a risk of a multiplicity of proceedings. If Mr Vasili is successful in the Supreme Court proceedings, Racing NSW's appeal will have proceeded on the false basis that there was a valid decision to appeal against.”

72. On 26 May 2017, Racing NSW put in its submissions in response.

73. It made plain that it opposed the application of Mr Vasili pursuant cl 6(7) of the Regulation for an extension of time. It also submitted that Mr Vasili was not entitled to rely upon his proposed Notice of Grounds of Appeal, challenging the findings against him, without an extension of time.

74. Racing NSW argued that the legislative scheme set out in the Tribunal Act and the Regulation meant that the only matter before the Tribunal was an issue of leniency of penalty, because that was the only matter the subject of the appeal.

75. The submissions drew attention to the provisions cl 6(4) of the Regulation noting, in particular, the final sentence of that subclause in the following words:

“The appeal is to be limited to those grounds, except by leave of the Tribunal.”

76. Racing NSW submitted that, having regard to those words, it must have been intended by the legislature that the Tribunal would not have the power to go beyond the grounds of appeal lodged. Because its appeal was pursuant to cl 17 and not cl 16 of the Regulations, Racing NSW argued by way of analogy that the Tribunal’s consideration of its appeal could not go beyond the Grounds of Appeal lodged by it, and accordingly could not deal with questions of breach of the ARR.

77. As well, Racing NSW submitted that the Tribunal did not have power to determine that any part of the Regulation was invalid, and it should not do so. It put a further submission in the alternative that, in any event, the imposition of a seven day time limit for lodging of an appeal was neither arbitrary nor capricious as that phrase was used in the various authorities.

78. Finally, the submissions addressed each of the four grounds contending that they did not individually constitute special or exceptional circumstances.

79. With respect to the matter raised by Mr Vasili about potentially inconsistent decisions, Racing NSW’s submissions said:

“Fourthly, Racing NSW does not concede that Mr Vasili would be entitled to seek prerogative relief from the Supreme Court of NSW in circumstances where he has not elected to exercise his statutory right of appeal to the Tribunal. Further, the threat of commencement of legal proceedings in a different forum do not constitute ‘special or exceptional circumstances’.”

80. Mr Vasili made submissions in reply on 12 June 2017.

81. On the principal issue of whether an extension of time was needed at all, Racing NSW had relied upon a previous decision of the Tribunal: In the Matter of the Appeal of Licensed Trainer Kevin Moses (Racing Appeal Panel, 9 October 2015, unrep).

82. Mr Vasili submitted that a previous decision was not binding on the Tribunal and that it would only follow the position adopted in that case if it was independently satisfied that the decision was correct. He submitted that the decision was wrongly decided. In particular Mr Vasili identified that the decision in Moses identified tension between s 16 of the Tribunal Act and cl 7 of the Regulation, and resolved this tension in favour of the position identified in the Regulation.

83. It was pointed out that, having regard to the hierarchy of legislation, the Act should always prevail over the Regulation which was made under it and which was subordinate legislation.

84. In particular the submissions identified an error in Moses where the Tribunal apparently held that the Regulation had been made by the legislature. It was contended that the Regulation was made by the Governor in Council and not disallowed by the legislature and, accordingly, the Regulation could not be properly viewed as having been made by the legislature.

85. The submissions also joined issue on the other matters. In particular, the submissions noted that, when considering special or exceptional circumstances, the Tribunal needed to consider all of the circumstances, both cumulatively and as a whole. The submissions criticised Racing NSW's approach in considering each individual circumstance in isolation and advancing an argument that each by itself did not constitute a special and exceptional circumstance. In short, Mr Vasili argued that the Tribunal needed consider all of the circumstances together when determining if it was satisfied that special exceptional circumstances existed.

86. Finally, with respect to the question of a multiplicity of proceedings, Mr Vasili submitted:

“RNSW furnishes no reason… why Mr Vasili has lost his right to seek review in the Supreme Court of NSW… Nor do they advance any reason, beyond conclusory [sic] assertion why this Tribunal would not strain to avoid a multiplicity of proceedings.”

The Interlocutory Decision of the Tribunal

87. The Tribunal, constituted by Mr D B Armati, delivered its interlocutory decision on 21 July 2017.

88. For the reasons set out, the Tribunal refused the application of Mr Vasili to extend time pursuant to cl (6)(7) of the Regulation, and determined that the appeal before it “… will proceed on the Racing NSW appeal on severity alone”. It then made a series of directions, subject to any further submission from the parties.

89. Those directions were:

“1.   Racing NSW having filed its grounds of appeal, it should now serve its evidence and any documents upon which it will rely upon the respondent. Having served all such documents it should notify the Tribunal and Mr Vasili when it has done so.

2.   Mr Vasili has 14 days from the receipt of that written notice that the evidence has been served to file and serve any evidence or documents upon which he will rely.

3.   Racing NSW then has a further seven days to file and serve any documents in reply.

4.   The Tribunal will then consider the evidence filed and advi[s]e of suitable dates for hearing.”

90. It is to be observed that in making these directions, there was no time limit within which Racing NSW was to serve its evidence and the documents upon which it proposed to rely, whereas Mr Vasili was given only 14 days to respond with any evidence which he wished to rely upon.

91. The interlocutory decision turned to the first question of whether there was any necessity for Mr Vasili to lodge an appeal against conviction in light of Racing NSW's appeal against penalty. It noted that:

“… it had been a long‑standing practice of the Tribunal and the parties before it to allow separation of an appeal on an issue of severity and that some appeals proceed on severity only and some on finding of a breach only or some on a finding of breach and on penalty.”

92. It described the submission about the consequences of the effect of Racing NSW's appeal in this way:

“There is a side issue in these proceedings raised by the submissions that Racing NSW's arguments are not limited to its grounds of appeal.”

93. The interlocutory judgment then went on to put the matter of Moses to one side, saying that the issue before it was different.

94. The Tribunal went on to say this:

“22 The conclusion that the Tribunal reaches on this matter is that s 15 of the Act, creating a right of appeal both for an aggrieved person and in Racing NSW, requires it to be in accordance with the Regulations. That Regulation deals with procedural and incidental matters that are necessary or convenient and not inconsistent with the Act. It is important to note the words of s 15 require compliance and the lodgement of appeals ‘in accordance with the regulations’. That expression, the Tribunal is satisfied, is sufficient to enable a limit to be placed on an appeal such that not all issues from the body appealed against unnecessarily are put in issue on the appeal. That is, an appeal can be limited to an issue of severity only.”

95. The Tribunal went on to acknowledge that, for appeals lodged by Racing NSW, the Regulation does not expressly limit the appeal to the grounds of appeal. The Tribunal went on to say this:

“25 There is no doubt that an appeal is a rehearing, that is, both on the issue of breach of the rule and penalty, but for practical purposes and in accordance with the provisions of the Regulation, through the grounds of appeal, the appellant can limit the issue to severity only.”

96. After further discussion the Tribunal concluded:

“26 Accordingly, the Tribunal determines that the moving party, here Racing NSW, has the right to limit its appeal to severity only and it has done so here by a proper use of the Act and its Regulation. Therefore it has displaced any implied right in the aggrieved respondent to re‑agitate the question of a breach of the rule in the absence of his own appeal.

27 It is also to be remembered that an appeal is not at large in a general sense. It is limited by the provisions in the Regulation expressly and it can therefore be limited to certain types of penalty, not all penalties, that is, not all Stewards and Appeal Panel decisions are appealable. .… It is therefore appropriate that a rehearing on the issues identified in the grounds of appeal can be limited to severity only. Here it is Racing NSW's appeal; it can cho[o]se to limit and it has done so, particularly as such an appeal does not exclude aggrieved persons themselves from raising the issue conviction as long as they meet the regulation.”

97. With respect to the question of the validity of the Regulation, the Tribunal determined that it did not have any express or implied power to determine that cl 6 of the Regulation was in whole or in part invalid because it could not invest itself with a supervisory jurisdiction.

98. It then turned its attention to the question of whether special or exceptional circumstances were identified. It turned its attention to those facts and noted that Mr Vasili did not exercise his right to appeal within seven days.

99. It went on to say this:

“39.   There is nothing unusual about an appeal body, such as this Tribunal, taking evidence relevant to facts on penalty and then making different factual findings to the body below such as the Appeal Panel. There is nothing special or exceptional about that fact or argument.

40    The Tribunal strives to avoid multiplicity of proceedings as must all bodies, but it must make and determine the issues before it, not cowed or bowed by threats of litigation elsewhere. There's nothing special or exceptional about that fact or argument.”

100. It determined that, both individually and cumulatively, the facts pointed to by Mr Vasili did not constitute special or exceptional circumstances.

Proceedings in this Court

101. On 7 August 2017, Mr Vasili filed a Summons seeking judicial review.

102. The first three orders were addressed to the decision of the Panel. The next three orders were addressed to the decision of the Tribunal.

103. There were three principal grounds for relief in respect of the decision of the Panel. They were:

1. that the Panel failed to afford procedural fairness. The particulars provided with respect to this ground asserted that the finding made by the Panel with respect to the conduct of Mr Vasili was not in fact the subject of any charge against him and it had not been the subject of any cross-examination or submission;

2. that the Panel's finding that Mr Vasili had allowed the trainer Mr Karakatsanis to hold himself out as the trainer of his horses was made without evidence and unreasonably. The particulars appended to this ground noted that was no evidence that Mr Vasili had taken any steps at all to facilitate Mr Karakatsanis holding himself out as a trainer of the horses; and

3. that the evidence before the Panel could not, in law, sustain a finding that Mr Vasili engaged in improper practice in connection with racing contrary to r 175(a) of the ARR.

104. With respect to the Tribunal’s decision, Mr Vasili relied upon four grounds.

1. that the Tribunal had made an error of law in holding that, an appeal to the Tribunal was not an appeal against the whole of any decision by the Panel, including those aspects which related to both guilt and penalty;

2. that the Tribunal made an error of law in holding that in an appeal by Racing NSW from a decision of the Panel, the Tribunal is limited to issues raised in the Notice of Appeal;

3. that the Tribunal erred in rejecting Mr Vasili’s contention that cl 6(1) of the Regulation was invalid to the extent that it imposed a seven day time limit for the lodging of an appeal and further erred in failing to determine that argument; and

4. that the Tribunal erred in deciding not to form a decision that special exceptional circumstances existed justifying an extension of time. Five matters were particularised. They were that:

1. the Tribunal failed to consider Mr Vasili’s substantial, clearly articulated argument to the effect that, unless he could appeal on conviction, there was a possibility of inconsistent findings between the Tribunal and the Panel on guilt;

2. the Tribunal found, unreasonably and without evidence, that Mr Vasili was aware that Racing NSW had two months in which to lodge an appeal; and/or

3. the Tribunal had regard to an irrelevant and impermissible consideration in having regard to the Tribunal's view that this was the first time a person had raised the issue under consideration;

4. the Tribunal failed to consider Mr Vasili’s substantial, clearly articulated argument to the effect that it was unfair to permit Racing NSW to appeal on severity while not permitting Mr Vasili to appeal against conviction; and

5. it was unreasonable or illogical for the Tribunal to fail to be satisfied that there were special or exceptional circumstances.

105. On the hearing of these proceedings, both active parties, the plaintiff and Racing NSW, provided written and oral submissions to the Court.

106. Both parties agreed that if this Court came to the view that the plaintiff's argument, with respect to the jurisdiction of the Tribunal, and in particular his argument that there was no constraint on the jurisdiction of the Tribunal to consider only the severity of the penalty issue raised by Racing NSW, was correct, the matter would have to be returned to the Tribunal to hear and determine Mr Vasili’s appeal and Racing NSW’s appeal according to law.

107. In those circumstances, the parties agreed that it would be both unnecessary, and inappropriate, for the Court to determine the issues with respect to the correctness of the fact-finding of the Panel. That is because to do so might be seen to, at least indirectly, act as a fetter on the discretion of the Tribunal to determine the facts before it, and reach a decision about whether a breach of the ARR had occurred.

108. Accordingly, it is convenient to commence with a consideration of the issue of the nature of the jurisdiction of the Tribunal, and whether that jurisdiction can be curtailed, as the Tribunal found that it could be, in cases of an appeal by Racing NSW, to the grounds nominated by that appellant in its Notice of Appeal.

Jurisdiction Issue

109. An understanding of the jurisdiction issue commences with the nature of the decision against which an appeal is brought to the Tribunal.

110. The jurisdiction of the Panel on appeal is set out in s 43 of the Act. It provides that an appeal to the Panel is to be by way of a new hearing. It also permits fresh or additional evidence to be given with respect to the “decision appealed against”. The Panel is also entitled to “…inform itself on any matter in any way that is considers to be just”: s 43(3)(6) of the Act.

111. Importantly, there is a single decision of the Panel, pursuant to s 44(2), which is required to be given effect to. That no doubt is a reference to not just the parties but also to those bodies subject to the Act, giving effect to the decision.

112. The decision of the Panel can embrace any one of the alternatives set out in s 44(1) of the Act. The first of those alternatives, namely to dismiss the appeal, suggests that the “decision appealed against” would stand. The second alternative is to confirm or vary “the decision appealed against”. If the Tribunal determines to confirm or vary that decision, it does so by “substituting any decision that could have been made”. It is relevant to note that this involves setting aside the Panel’s decision, and substituting for it the Tribunal’s decision.

113. Finally, s 49 of the Act notes that the decision of the Panel is the decision supported by a majority of members of the Panel. If the members of the panel are evenly split, the decision of the convener is the decision of the Panel.

114. It follows from these provisions that the decision which is the subject of an appeal to the Tribunal is a single decision of the Panel. There are not two decisions – one dealing with breach and one dealing with penalty (if any) - rather, the Panel delivers a single decision.

115. Here in this case the decision was, so far as Mr Vasili was concerned, one to fine him $10,000. That decision was based upon the various findings of fact which led to the Panel forming the view that Mr Vasili had breached r 175(a) of the ARR. Regardless of the way in which the Panel set out the terms of its decision, it is not correct to conclude that the Panel made two decisions which are quite separate, namely, a decision as to whether there has been a breach of the ARR, and then a decision as to the penalty that should be imposed. It may be that, as a matter of convenience, the Panel considers these matters separately or at different times. Nevertheless, there is ultimately only a single decision of the Panel.

116. It is appropriate to examine the right of appeal to the Tribunal from the Panel decision. The right of appeal is granted by s 15 of the Tribunal Act. In the circumstances here, the issue is what right of appeal Racing NSW may have. The Tribunal Act provides that, relevantly, Racing NSW may appeal to the Tribunal against a decision of the Appeal Panel on an appeal under the Act: s 15(2)(a) of the Tribunal Act. The decision of the Appeal Panel, which is the subject of the appeal to the Tribunal by Racing NSW, is the decision of 2 March 2017.

117. The Tribunal Act provides that the right of appeal is to be exercised “… in accordance with the regulations”: s 15(2). Here, the word “regulations” means the Regulation.

118. It follows that one needs to examine the nature of the Regulation to determine whether the phrase “in accordance with the regulations”, when considered with the regulation-making power, acts as a mechanism by which the Regulation can limit the jurisdiction of the Tribunal, or whether the Regulation merely determines the manner in which that jurisdiction once invoked may be exercised.

119. Section 18 of the Tribunal Act provides that the regulations

“… may make provision for or with respect to appeals to the Tribunal under this Act and, in particular, for or with respect to:

(a)    the procedures to be followed at or in connection with any appeals under this Act,

…

(d)    any matters incidental to or connected with appeals under this Act.”

120. The issue of the jurisdiction of the Tribunal turns upon a question of statutory interpretation by reference to each of the Tribunal Act and the Regulation.

121. Section 15 in its current form was introduced in 2004 by the Thoroughbred Racing Legislation Amendment Act 2004. Accordingly, it preceded the introduction of the Regulation which commenced with effect from 31 July 2015. Put differently, the section creating the jurisdiction of the Tribunal to hear and determine appeals was in existence prior to the Regulation coming into effect.

122. In Shergold v Tanner [2002] HCA 19; (2002) 209 CLR 126 at 34, the Court (Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ) drew attention to a general proposition that:

“… a law of the Commonwealth is not to be interpreted as withdrawing or limiting a conferral of jurisdiction unless the implication appears clearly and unmistakably.”

123. This statement derived from an earlier statement of Dixon J in Magrath v Goldsborough Mort & Co Ltd [1932] HCA 10; (1932) 47 CLR 121 at 134 where his Honour said, with reference to NSW legislation:

“The general rule is that statutes are not to be interpreted as depriving superior courts of power to prevent an unauthorised assumption of jurisdiction unless an intention to do so appears clearly and unmistakably.”

124. That approach also reflected the general principles of statutory interpretation dealing with implied repeal by statute. Gaudron J in Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1, said at 17:

“It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent they would otherwise overlap, one should be read as subject to the other…”

125. Assuming, for the moment, that the Court was being asked to determine two statutes of equal standing by the application of the general principles of statutory interpretation and any rule with respect to implied repeal, it is not possible to find in the Regulation any express statement to the effect that it was intended to limit the grant of jurisdiction made in the Tribunal Act. Nor are there any words which are capable of giving rise to a clear or unmistakeable intention to derogate from the jurisdiction.

126. On the contrary, in s 15 of the Tribunal Act the phrase “in accordance with the regulations” suggests that it is the intention of the legislative scheme that the Tribunal Act and Regulation work in conjunction, one with the other. The pathway to that resolution is to be found in the regulation-making power. The Regulation deals with procedures to be followed at, or in connection with, any appeal under the Act and for matters incidental to or connected with the appeal.

127. There is clearly no indication of any intention in the regulation-making power to have regulations which address, by the imposition of any limitation, the jurisdiction granted to the Tribunal with respect to the hearing of any appeals.

128. The use of the words “in accordance with” instead of a different phrase such as “… as determined by” or else “… as fixed in …”, suggests strongly that there is no implied repeal of the jurisdiction of the Tribunal granted by the Act, or derogation from it. Rather, it supports that conclusion by demonstrating that the procedures set out in the Regulation are to be followed so as to exercise the jurisdiction determined by the Act.

129. The analysis thus far has proceeded on the basis of the application of the principles of statutory interpretation to the Tribunal Act and the Regulation as if they are pieces of legislation of equal standing, the Act being first in time and the Regulation being a piece of subsequent legislation.

130. But the Tribunal Act is the primary legislative instrument, and the Regulation is a piece of delegated or subordinate legislation. It is generally accepted that delegated legislation cannot impliedly repeal an earlier Act, except where expressly so authorised: Hall v Manahan [1919] St R Qd 217; TN v Walford (1998) 126 NTR 8 at 16[33]; see also D C Pearce and R S Geddes, Statutory Interpretation in Australia (7th ed, 2011, LexisNexis Butterworths), [7.17].

131. The application of this principle strongly points against the interpretation of the Regulation here as in any way impliedly repealing or derogating from the grant of jurisdiction in the Tribunal by the Tribunal Act.

132. Accordingly, the argument of Racing NSW that the jurisdiction of the Tribunal is constrained by any terms of the Regulation, is unpersuasive.

133. In any event, cl 7 of the Regulation, which is titled ‘Procedure for appeals by Racing NSW’, does not in fact constrain the Tribunal's jurisdiction. It provides that within the time nominated, an appeal is to be initiated by lodging a written notice with the Tribunal. It provides for the contents of that notice, namely that it is to include the grounds of appeal and the transcript of evidence. The appeal is, according to cl 7(1)(a), to be lodged within two months of the date “… on which the decision to be appealed against is made”. Thus it can be seen that the written Notice of Appeal is a matter of procedure. It is not a matter of substance, by which jurisdiction is determined by an interested party, here Racing NSW unilaterally determining the extent of the Tribunal’s jurisdiction in a matter.

134. Notwithstanding the submission by Racing NSW that it, by virtue of the content of its Notice of Appeal, can limit the jurisdiction of the Tribunal, the Regulation does not extend that far, nor is such an approach correct. In other words, once Racing NSW (or an aggrieved party) lodges an appeal pursuant to s 15 of the Tribunal Act, then the Tribunal is seized with the jurisdiction with respect to “… the decision appealed against”. That is the whole of the decision, including all parts of it. Here that means the imposition of the fine on Mr Vasili by the Panel, and all matters of fact, and other circumstances upon which that decision rests.

135. The exercise of the Tribunal’s jurisdiction must undoubtedly be carried out in accordance with the rules of procedural fairness. One indication of the rules of procedural fairness is that there must be a written Notice of Appeal that specifies grounds for the appeal. However, that step of procedural fairness does not define or limit the jurisdiction. This is for no reason other than the fact that s 16 of the Tribunal Act provides that an appeal to the Tribunal is to be by way of a new hearing. There is no limit on evidence which can be adduced before the Tribunal. Put differently, the Tribunal is not limited, when hearing the appeal only, to the evidence and material before the Panel. The Tribunal has the power by written notice to require a person to attend to give evidence or to produce any documents. The decision of the Tribunal is final and, pursuant to s 17(2), is taken to be “the decision of the Appeal Panel”.

136. Put differently, as an appeal to the Tribunal is by way of a new hearing, any evidence which is relevant to the decision appealed against, not limited to the Notice of Grounds of Appeal, may be adduced before the Tribunal. Whatever decision the Tribunal makes is substituted for the decision of the Panel below. It is not exercising solely an appellate jurisdiction where an appellant must first demonstrate error in the Panel’s decision. On the contrary, the fact of the Panel’s decision and the terms of that decision are only necessary preconditions to the exercise of the Tribunal’s jurisdiction.

137. A contrast to this position is the limited right of appeal which a civil litigant has to the Supreme Court of NSW from the Local Court. In such a case the statute does not provide for any right of appeal solely against a finding of fact, and requires the establishment of error in the decision of the Local Court. On such appeal the Court has held that it is not able to determine contentious findings of fact. Those matters are to be determined by a Local Court upon remittal in the event that the appeal is upheld.

138. This conclusion is consistent with the decision of the Full Court of the Federal Court of Australia in Benjamin v Repatriation Commission [2001] FCA 1879.

139. This conclusion about jurisdiction is also supported by the powers of the Tribunal referred to in s 17 of the Tribunal Act. That section notes that in respect of an appeal under s 15, the Tribunal has a broad range of powers, including varying the decision of the Panel by substituting any decision that could have been made by it. As well, as has been earlier noted, the decision of the Tribunal becomes the decision of the Panel.

140. In those circumstances, subject of course to compliance with the rules of procedural fairness, there is no reason why the Tribunal, when confronted with an appeal against leniency of penalty, may not decide to reduce the penalty, or find the foundational facts differently. It is open to the Tribunal to conclude that a breach of the ARR has not been proved.

141. This conclusion is consistent with the Court of Appeal's decision in Parker v Director of Public Prosecutions (1992) 28 NSWLR 282. In that case the claimant, Mr Parker, had been convicted in the Local Court of the offence of assault occasioning actual bodily harm. Having been found guilty, the Magistrate deferred passing sentence on the claimant pursuant to s 558 of the Crimes Act 1900 on condition that he enter into a recognizance to be of good behaviour for a period of two years. In addition, he was fined.

142. The claimant lodged an appeal to the District Court pursuant to s 122 of the Justices Act 1902. The appeal was said to be against both conviction and sentence and the hearing proceeded as a complete rehearing of the charge.

143. It is necessary to observe that the provisions of ss 131AB and 132 of the Justices Act, which is now repealed, provided that any appeal against either a severity of sentence or any conviction or order by Magistrate was to be by way of rehearing. On any question of sentence, new evidence or additional evidence was permitted to be given on appeal. On an appeal against conviction, additional evidence was permitted to be given, providing leave of the court was granted. The Court needed to form the opinion that it was in the interest of justice that the evidence be given.

144. Section 133I of the Justices Act provided that the District Court, after hearing an appeal, could determine the appeal by dismissing it or doing any number of things including confirming, quashing, setting aside or varying the conviction or order or sentence appealed against. It was entitled to make any such order as it thought just.

145. As well, that section noted that the District Court could exercise any function that the Magistrate, having made the conviction or order, might have exercised.

146. In Parker, the Court of Appeal held that it was open to the Court, although there had been no Crown appeal against the inadequacy of sentence, to increase the sentence imposed on the claimant by the Magistrate. However, the Court held that because it (the Court) had not given clear notice to the effect that it was considering imposing a more severe sentence of imprisonment on the claimant, so that those representing the claimant could put proper submissions with respect to such approach, or else so that the claimant may make a decision to seek leave to withdraw the appeal to reduce the risk of a kind of double jeopardy, there had been a lack of procedural fairness. The decision of the District Court was set aside.

147. At 295, Kirby P, with whom Handley and Sheller JA agreed, said:

“Where an accused person has exercised an entitlement provided by law to have a re-adjudication of a criminal conviction and sentence, it must be contemplated that Parliament provided that facility with the intent that normally it would result in the appellant’s being in no worse a position than had he or she accepted the conviction and sentence of the Local Court.”

148. Although, necessarily, such a risk is run by a procedure which amounts to a complete rehearing, with fresh (and possibly different) evidence and a new decision-maker, the purpose of the appeal is to afford the accused person with a second opportunity for the consideration of his case by a judicial officer more senior in the court hierarchy.

149. If the second judicial officer contemplates imposing a penalty exceeding that imposed by the first judicial officer, it is proper to indicate this fact so that the appellant can consider whether or not to apply for leave to withdraw the appeal.

150. By analogy with the proceedings here, the Tribunal is a body sitting above the internal Appeal Panel of Racing NSW. Its function is to provide an external body, independent of Racing NSW, which can hear and determine appeals between Racing NSW and parties who are the subject of the nominated decisions.

151. The independent Tribunal is given the power to rehear the proceedings. It is not necessary for error to be established on the part of the Panel. In so doing, it must apply the rules of procedural fairness. But, given that it is undertaking a rehearing and that the evidence before it is not necessarily the same as that before the Panel, there is no reason, in the absence of express statutory provision, to hold that its jurisdiction can be limited by the election of one party or another to proceedings before it to nominate only particular grounds of appeal.

152. That proposition may be tested in this way. Assume that, as here, Racing NSW appeals against leniency of penalty. That order was made on the basis of underlying facts. For example, it may be contended that the Panel found that the breach was inadvertent, whereas, on appeal, Racing NSW wishes to contend, on the basis of later-acquired evidence, that the breach was intentional. It may ordinarily be expected that if the breach was intentional, then a greater or more severe penalty would be imposed.

153. In the hearing of that factual dispute dealing with a fact underlying the appropriateness of the penalty imposed by the Appeal Panel, and consideration of the most appropriate penalty to be imposed by the Tribunal, it would be surprising if, in considering the evidence, it would not be open to the Tribunal to come to the conclusion that there had been no breach of any rule because the conduct demonstrated before it did not prove such breach. Of course, before coming to such conclusion, the Tribunal would need to give the parties the opportunity to make submissions with respect to such a possible conclusion. In that way it would accord procedural fairness. But it would be most unjust if the Tribunal, having heard all the evidence about the conduct of the party concerned, could not consider whether in truth the conduct constituted a breach of the rule, just because, in the example given, Racing NSW chose not to nominate a specific ground of appeal, and the other party could not raise such issues.

154. What this analysis shows is that there is no reason to restrict the jurisdiction of the Tribunal. The jurisdiction with which the Tribunal is seized was that of the whole matter, even though it was the appeal of Racing NSW, which nominated its grounds of appeal as being related to the inadequacy of the penalty. There is no basis for the Tribunal to prevent the other party, here Mr Vasili, from raising any matter relevant to the decision appealed against which includes whether or not there had been any breach of the Rule.

155. It follows from this conclusion that the interlocutory decision of the Tribunal was wrong in law and must be set aside.

156. But there was a further reason why the decision of the Tribunal was wrong in law.

157. One of the submissions to the Tribunal was that if the conclusion of the Appeal Panel on the question of breach of the rule was not open to be challenged, then there was a real risk that judicial review of the Appeal Panel by application to this Court, may have reached a conclusion on the question of a breach of r 175(a) of the ARR which was, at least potentially, inconsistent with any decision of the Tribunal to uphold the Panel’s finding.

158. The Tribunal thus formed its view, and said that it “must make and determine the issues before it, not cowed or bowed by threats of litigation elsewhere”. There was no submission that it ought yield to threats of litigation elsewhere. It completely misapprehended the submission which was made to it. No doubt, in so doing, it was led to that conclusion by the submission of counsel for Racing NSW which suggested that the submission of Mr Vasili about the inappropriateness of inconsistent legal decisions constituted “a threat of commencement of legal proceedings”.

159. There was no threat as that term may be used in a combatant or pejorative sense. The submission of Mr Vasili outlined the invidious position which he would be in as the consequence of any narrow interpretation of the jurisdiction of the Tribunal. That is to say, if he were not to be permitted to articulate an argument about the finding of breach of the Regulation, then there was a significant risk of inconsistent findings through the mechanism of judicial review. This was plainly a significant risk, and plainly one which ought to be avoided in the interests of the parties and in the interests of the administration of justice.

160. In its interlocutory decision, the Tribunal paid nothing more than lip service to this proposition by saying that it “strives to avoid multiplicity of proceedings”. The issue, however, was not simply the multiplicity of proceedings. The issue which was relevant was the possible inconsistency of the underlying facts, in turn giving rise to inconsistent decisions. It is the inconsistency, or potential inconsistency which does harm to the interests of the parties and the administration of justice. This was not given any attention by the Tribunal, although it was a most relevant factor. It was necessary for the Tribunal, in the particular circumstances of this case, to weigh that matter in the balance. It erroneously failed so to do.

Summary

161. I have concluded that the interlocutory decision of the Tribunal of 21 July 2017 contained a number of errors of law.

162. The first was that it misapprehended its jurisdiction, holding that it only had jurisdiction to deal with the ground of appeal raised by Racing NSW going to the inadequacy of the penalty imposed. In fact, its jurisdiction was to hear and determine the whole of the proceedings which were before the Panel, and which resulted in the decision of the Panel against which the appeal had been brought.

163. The finding of the Tribunal that it was unable to hear and determine matters not raised in the Racing NSW’s Grounds of Appeal constitutes a failure by the Tribunal to exercise its jurisdiction. In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, Gaudron J at 41 said, relevantly:

“…a tribunal is said to have failed to exercise its jurisdiction if it has wrongly denied the existence of its jurisdiction or mistakenly placed limits on its functions or powers…there is said to be a "constructive failure to exercise jurisdiction" when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form.”

164. The proposition that a mistaken denial of jurisdiction by a Tribunal is a jurisdictional error is also supported by Abebe v Commonwealth[1999] HCA 14; (1999) 197 CLR 510 at 552 [107], [108].

165. The plaintiff has accordingly established that the Tribunal, in misunderstanding the nature of its jurisdiction, made a jurisdictional error.

166. It follows that the decision of the Tribunal must be quashed.

167. The Tribunal’s obligation was to hear all of the proceedings which gave rise to the decision of the Appeal Panel. That involved, should either party wish to raise it, questions relating to the underlying conduct, including but not limited to whether such conduct was capable of, and whether it did, constitute a breach of ARR 175(a), whether in all of the circumstances that breach was inadvertent or knowingly deliberate, or whether with some other state of mind between those two extremes, and finally, depending upon the findings, what penalty it is appropriate, if any, to impose.

168. The hearing of any consideration of each of these matters, and including the totality of of the evidence, must be accompanied by procedural fairness being given to both parties. There are many different ways in which this can be achieved. It will be a matter for the Tribunal to determine its own procedure so as to ensure that end is achieved.

169. In those circumstances, given that there will be a full hearing before the Tribunal, it is inappropriate for this Court, as both parties agreed, to proceed to determine the plaintiff's complaints about the proceedings before, and the decision of, the Panel.

Costs

170. The plaintiff has succeeded. There seems to be no reason why costs should not follow the event. However, if either party wishes to contend for a different order, they should have the opportunity for so doing.

Orders

171. It is appropriate to allow the parties to formulate the orders to give effect to the conclusions reached in this judgment.

172. I make the following orders:

1. Stand proceedings over for directions to 9:30am on 27 April 2018.

2. Direct that the parties exchange Short Minutes of Order setting out the orders for which each contends by 4pm 20 April 2018.

3. Direct that the parties are to provide a copy of any Short Minutes of Order to my Associate at that time.

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Decision last updated: 13 April 2018