Weir v Racing Victoria Limited

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2024 05372

DARREN KENNETH WEIR	Plaintiff
-v-
RACING VICTORIA LIMITED (ACN 096 917 930)	First Defendant
VICTORIAN RACING TRIBUNAL	Second Defendant

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JUDGE:	Finanzio J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2025
DATE OF JUDGMENT:	30 June 2025
CASE MAY BE CITED AS:	Weir v Racing Victoria Limited & Anor
MEDIUM NEUTRAL CITATION:	[2025] VSC 367

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JUDICIAL REVIEW — Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) — Certiorari‑Decision of Victoria Racing Tribunal — Double punishment — Whether Plaintiff punished twice for same act — Whether Rules of Racing are a subordinate instrument — Special circumstance — Reasonableness — Racing Act 1958 (Vic) — Rules of Racing Victoria — Interpretation of Legislation Act 1984 (Vic) — Pearce v The Queen (1998) 194 CLR 610 — McDonald v Racing New South Wales [2017] NSWSC 1511 — Greyhound Racing Victoria Stewards v Anderton [2018] VSC 64.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	J Murdoch KC P Smallwood	Guthrie & Associates (Vic) Pty
For the Defendant	O P Holdenson KC A Willoughby	MinterEllison

HIS HONOUR:

Introduction

The Plaintiff commenced this proceeding by originating motion pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), seeking orders in the nature of certiorari to quash the decision of the Second Defendant, the Victorian Racing Tribunal (‘the Tribunal’), made on 5 July and 2 September 2024.

The Tribunal is established by the Racing Act 1958 (Vic) (‘Racing Act’). Its functions include the hearing and determination of charges against a person for ‘serious offence[s]’,[1] within the meaning of the Rules of Racing Victoria (‘Rules of Racing’).[2] The Rules of Racing are issued by the First Defendant, Racing Victoria Limited (‘Racing Victoria’). Racing Victoria is the ‘controlling body’ as defined under the Racing Act, and is responsible for enforcing the Rules of Racing. A person wishing to participate in the racing industry as a trainer of racehorses must be licensed and registered under the Rules of Racing. Without a licence, a trainer may engage in some limited training activities (known as pre‑training),[3] but will be precluded from important aspects of horse racing. Racehorses must be stabled with a licensed trainer,[4] and can only race at sanctioned race meetings if they are trained by a licensed trainer.[5]

Until February 2019, the Plaintiff was a licensed trainer under the Rules of Racing. The Tribunal found that he had enjoyed considerable success as a trainer and was highly regarded in racing circles as one of the best trainers in Australia.

The Plaintiff was charged under the Rules of Racing, first with possession of ‘jiggers’, and then subsequently with the use of a ‘jigger’. A ‘jigger’ is an electrical apparatus (also known as a cattle prod). The use of jiggers in training racehorses is prohibited by the Rules of Racing. It is regarded as both cruel and a form of cheating. Jiggers have been known to be used in racehorse training to deliver an electric shock to a racehorse in combination with some other prompt, designed to make the racehorse respond by putting on an additional burst of speed. The racing industry’s admonishment of the practice is reflected in the fact that the Rules of Racing make the mere possession of a jigger, without any evidence of its use, a serious offence. The actual use of a jigger on a racehorse, if proved, attracts a mandatory penalty of disqualification for a minimum period of two years unless there is a finding that a special circumstance exists.[6]

On 1 February 2019, the Plaintiff was charged with six offences under the Rules of Racing in force at that time (‘the 2019 charges’). Two of the charges did not proceed to hearing (Charges 4 and 5). Charges 1 to 3 alleged that the Plaintiff ‘possessed’ three ‘jiggers’ at Ballarat on 30 January 2019. Charge 6 alleged that the Plaintiff had engaged in conduct prejudicial to the image of racing. The four charges proceeded to a hearing before the Racing and Disciplinary Board (‘the Board’) on 6 February 2019.

On 6 February 2019, the Plaintiff was disqualified from holding a licence to train horses for four years. This first disqualification was imposed by the Tribunal’s predecessor, the Board, in relation to charges which arose from the discovery of the jiggers in the possession of the Plaintiff in raids conducted by police on 30 January 2019 on properties at Ballarat and Warrnambool, where the Plaintiff carried on racehorse training activities.

On 14 September 2023, Racing Victoria charged the Plaintiff with 10 breaches of the Rules of Racing (‘the 2023 charges’) concerning the use by the Plaintiff of a jigger on three horses. The use of the jiggers was caught on surveillance cameras. The 2023 charges concerned conduct which occurred in October 2018 — before the 2019 charges were laid. Charges were not laid by Racing Victoria in 2019 concerning the use of the jiggers in 2019. The use of the jiggers formed part of a criminal investigation undertaken by police. Criminal charges concerned with the use of the jiggers were laid by police in October 2019. The Plaintiff indicated at the time that he was prepared to plead guilty to the less serious criminal offences, but contested the more serious charges. All criminal charges remained pending until December 2022, when the police withdrew the most serious charges. The Plaintiff’s plea of guilty to the less serious offences resulted in a conviction and fine of approximately $35,000.

On 23 January 2023, following the resolution of the criminal charges, Racing Victoria reopened its investigation into the use of the jiggers under the Rules of Racing. The Plaintiff immediately admitted to the use of the jiggers. Charges were laid against the Plaintiff on 14 September 2023. The Tribunal recorded that the delay in bringing and dealing with the charges under the Rules of Racing was no fault of the Plaintiff. Indeed, the delay by Racing Victoria in bringing and prosecuting the 2023 charges was criticised by the Tribunal.

All of the 2023 charges laid against the Plaintiff were ‘serious offences’ for the purposes of the Rules of Racing.[7] The Plaintiff was found not guilty in relation to charges 1 to 3, but pleaded guilty to charges 4 to 10. Charges 4, 5 and 6 alleged the use of a jigger on each horse respectively (‘the use charges’). The Plaintiff was separately charged with cruelty to each of the horses arising from the use of the jigger, being charges 7, 8 and 9 (‘the cruelty charges’). The Plaintiff was further separately charged with engaging in improper and dishonourable conduct in connection with racing, being charge 10. Charges 7 to 10 did not attract a mandatory minimum penalty. Charges 4, 5 and 6 attracted a mandatory minimum penalty of disqualification for a period of two years, unless a finding that a special circumstance exists, in which case the penalty may be reduced. None of the other charges attracted a mandatory minimum penalty.

On 5 July 2024, the Tribunal disqualified the Plaintiff from holding a licence as a trainer for a further period of two years (‘the penalty decision’). While a two year disqualification was imposed separately in respect of each group of charges (i.e. the use charges, the cruelty charges, and the improper and dishonourable conduct charge), the Tribunal ordered that the periods of disqualification run concurrently.

Following the delivery of its decision, there was a debate about when the period of disqualification would commence. The hearing was adjourned for the parties to make further submissions.

On 2 September 2024, the Tribunal fixed the time for the commencement of the disqualification at 9 September 2024, for a period of two years (‘the commencement decision’). In effect, the Tribunal disqualified the Plaintiff for a further two years commencing on 9 September 2024.

It is this second period of disqualification with which these proceedings are concerned.

The Plaintiff contends that the Tribunal’s decision to impose a two year period of disqualification in relation to the 2023 charges, and its decision that the period of disqualification commence from 9 September 2024, were affected by legal error of varying kinds.

The Plaintiff’s application

By his originating motion, the Plaintiff seeks two orders in the alternative:

(a) first, that the matter be remitted to the Tribunal for rehearing as to the length and commencement date of any period of disqualification according to law; and

(b) second, and alternatively, that this Court determine the length and commencement date of any period of disqualification according to law.

It is important to say something about the Plaintiff’s plea for alternative relief first. The Plaintiff seeks relief pursuant to Order 56, which empowers the Court to make orders ‘in the nature of certiorari’. In Craig v South Australia (‘Craig’),[8] the High Court said:

Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds …[9]

This Court’s jurisdiction to make orders in the nature of certiorari corresponds, comparably,[10] to the Court’s previous inherent jurisdiction to issue the prerogative writ of certiorari.[11] The Defendant says that even if this Court were to find error in the Tribunal’s decision, it is not empowered to remake the decision in substitution for the Tribunal’s. The Plaintiff proffers no authority in support of its contention that this Court has power to do what is sought on an application of this kind. In the circumstances of this case, it is not open for the Court to substitute its own decision for that of the Tribunal, even if it were satisfied that material legal error had been established. The proper remedy is remittal for rehearing on the assumption that the Plaintiff has made out legal error. For the reasons that follow, no question of remittal arises, as the Plaintiff’s application should be dismissed.

The Plaintiff advances five grounds in support of his application to set aside the decisions of the Tribunal. In summary, the grounds are:

(a) the Tribunal erred by failing to have regard to the prohibition against impermissible double punishment;

(b) the Tribunal fell into jurisdictional error by imposing a commencement date for the two year disqualification which was unreasonable, contrary to the interests of justice, altogether excessive, and out of proportion;

(c) the Tribunal erred by failing to have regard to all of the circumstances that it was required to consider to determine if ‘special circumstances’ had been established;

(d) the Tribunal’s conclusion that special circumstances had not been made out was unreasonable; and

(e) the Tribunal failed to give sufficient reasons for the conclusion that special circumstances had not been made out.

Counsel for the Plaintiff identified the following three main points arising on the grounds as enveloping the substance of the Plaintiff’s application:

(a) first, whether the period of disqualification imposed by the Tribunal involves any element of double punishment (Ground 1: ‘the double punishment argument’);

(b) second, whether the Tribunal failed to have regard to ‘special circumstances’ (which were said by the Plaintiff to have been established) in its consideration of the penalty imposed on the Plaintiff (Grounds 3, 4 and 5: ‘the special circumstances argument’); and

(c) third, a ‘catch‑all’ assertion that the aggregate penalty imposed upon the Plaintiff was legally unreasonable in a variety of ways (Ground 2: ‘the unreasonableness argument’).

It is convenient to deal with each in turn.

Double punishment

The Plaintiff contends that the penalty decision imposing a two year period of disqualification in respect of the 2023 charges (‘the use charges’) following the four year disqualification imposed in respect of the 2019 charges (which concerned mere possession of jiggers) involved an element of impermissible double punishment. The Plaintiff relies upon the following passage from the joint judgement of the majority (comprising McHugh, Hayne and Callinan JJ) in Pearce v The Queen (‘Pearce’):[12]

To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.[13]

The Plaintiff says that the principle described in Pearce is embodied in Victorian law by s 51 of the Interpretation of Legislation Act 1984 (Vic) (‘Interpretation Act’) which relevantly provides:

Provisions as to offences under two or more laws
(1)Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission.
(2)In subsection (1) law means—
(a)an Act or a provision of an Act;
(b)a subordinate instrument or a provision of a subordinate instrument; or
(c)common law.

The First Defendant says that the principle prohibiting double punishment is a practice or rule of the criminal law and that there is nothing express or implied in the Racing Act which embraces the sentencing principles of the criminal law. It also says that s 51 of the Interpretation Act has no application in the present case because the Rules of Racing are not a ‘law’ for the purposes of sub‑s (2).[14]

In Stirling v Legal Services Commissioner (‘Stirling’),[15] a barrister suspended from legal practice for three years following findings of professional misconduct and unsatisfactory professional conduct under the Legal Profession Act 2004 (Vic) argued that VCAT had erred in calculating its penalty by punishing him twice by reference to the same uncharged conduct as a basis for finding aggravated conduct, and as a basis for downgrading matters put in mitigation. He relied, in part, on the principle in Pearce in support of these contentions.[16] After discussing the principles applicable to sanctions in disciplinary proceedings,[17] the Court considered the utility of analogies sometimes made between criminal sentencing principles and sanctions imposed in disciplinary proceedings,[18] observing in particular:[19]

Courts often use criminal language and authorities when imposing penalties in disciplinary proceedings. In Burgess, Nettle and Neave JJA noted the importance of denunciation, specific deterrence and community protection in assessing the severity of a 12 month suspension of a solicitor for failing to use his best endeavours to complete work and communicate effectively. The Court even used the principles in R v Verdins when analysing the mental impairment issues relating to the appellant.
However, this analogy is not perfect. As urged by the respondent, these proceedings are sui generis, and are within the inherent jurisdiction of the Court. While there are common elements, as noted in Hanneberry, it is clear that these types of proceedings are not criminal:
The first is that disciplinary proceedings under the Act are not criminal proceedings but are proceedings sui generis … This proposition is reflected in the circumstance that unfitness to practise based on misconduct need be proved only according to the civil standard, subject of course to the necessity to bear in mind the seriousness of the conduct charged.

Having noted the link between the two types of proceedings and the limits to that analogy, the issue is now whether the discretion of the Tribunal miscarried in the way it penalised the appellant. In our assessment, the Tribunal’s discretion did miscarry in relation to double punishment in two ways.

The Court held (citing Pearce) that the discretion of VCAT had miscarried when it used a global approach to penalising the appellant but then also separated out the charges and used one as an aggravating factor of the other. This, the Court said, constituted double punishment.[20]

In McSteen v Architects Registration Board of Victoria (‘McSteen’),[21] the Court of Appeal was concerned with an application for leave to appeal a decision of VCAT that found an architect guilty of unprofessional conduct and that he had been careless or incompetent in his practice as an architect. One of the architect’s proposed grounds contended that the trial judge had erred by finding two allegations proven based upon the same conduct, the second of which being advanced only as an alternative to the first by the prosecuting board.[22] In remarks made obiter dicta, the Court made the following observations:[23]

Nor can the applicant rely on conceptions of double punishment. The purpose of disciplinary proceedings is primarily to protect the public, and not to punish the practitioner.[24] We therefore consider that, in the same way that the rule against duplicity does not operate strictly in non‑criminal proceedings, the common law rule against double punishment recognised in criminal proceedings cannot apply with the same strictness (if it applies at all) to disciplinary proceedings.

It is apparent from McSteen and Stirling that it would be difficult to say that the principles of double punishment have no application outside the criminal law context unless the statutory regime expressly embraced the sentencing principles of the criminal law. McSteen did not decide that the principles were inapplicable in a disciplinary context. At most, the Court can be taken to have raised a doubt as to their applicability, suggesting that if the principles were applicable, they could not apply with the same strictness in disciplinary proceedings as in criminal proceedings. In Stirling, the Court applied the double punishment principles. It is apparent that, at the very least, the double punishment principles may have some work to do outside the sphere of the criminal law in cases where punishment for misconduct is at issue.

The First Defendant also says the Rules of Racing are not a ‘law’ for the purposes of s 51(2) of the Interpretation Act. Plainly enough, the Rules of Racing are not common law nor ‘an Act or provision thereof’. For s 51(1) to have any application, the Rules of Racing must be capable of falling within the meaning of the term ‘subordinate instrument’ as defined by s 38 of the Interpretation Act. ‘Subordinate instrument’ is defined as follows:

subordinate instrument means an instrument made under an Act—
(a)that is a statutory rule; or
(b)that is not a statutory rule but—
(i)contains regulations, rules, by‑laws, proclamations, Orders in Council, orders or schemes; or

(ii)is of a legislation character …

The second limb of the definition contemplates instruments which are not a ‘statutory rule’ but which nonetheless ‘contains rules’, or ‘is of a legislative character’. The Rules of Racing can be described in both ways. The definition also requires that such rules, even if they are legislative in character, are ‘made under an Act’. A number of cases have considered,[25] ultimately without authoritatively deciding, the status of the Rules of Racing.

The Racing Act does not expressly confer rule making power on Racing Victoria.[26] While it might be said that the Rules of Racing are not subject to direct legislative oversight, and that Racing Victoria is not a public authority or body,[27] it must also be observed that the constitution of Racing Victoria is subject to parliamentary oversight, and Racing Victoria only assumes the status which it enjoys under the Racing Act as a ‘controlling body’ upon the certification of the Minister.[28] Division 2B of the Racing Act, entitled the ‘Rules of Racing Victoria’, defines the Rules of Racing for the purposes of the Racing Act to be ‘the rules, for the time being in force, of Racing Victoria’.[29] Although the Rules of Racing are made and issued by Racing Victoria, they are nonetheless given force by the Racing Act. Section 5F of the Racing Act provides that the Rules of Racing may be enforced against the holder of a licence, registration, permit or other authority issued by Racing Victoria. The Racing Act creates a framework which involves oversight of the activities of Racing Victoria, contemplates the making and existence of the Rules of Racing (indeed depends upon such rules being in existence), and facilitates their enforcement by, among other things, establishing a Tribunal for that purpose, the members of which are appointed by government, and the jurisdiction, practices and procedures of which are prescribed by the Racing Act. Both the language of the Rules of Racing, and the language of the Racing Act itself, describe certain transgressions of the Rules of Racing as ‘offences’ and ‘serious offences’.

The situation of horse racing is to be contrasted with that of greyhound racing, where the Racing Act expressly establishes the Greyhound Racing Board and confers power upon it to make the rules in respect of greyhound racing. In Greyhound Racing Victoria Stewards v Anderton,[30] Zammit J proceeded on the basis that the Rules of Greyhound Racing Victoria is a ‘subordinate instrument’. If the First Defendant’s contention that s 51(1) does not apply to the Rules of Racing is correct, it could have the consequence that the Racing Act establishes a disciplinary framework for Greyhound Racing where it is impermissible to punish a person twice for the same act, but where in the case of horseracing, double punishment would not be prohibited.

A credible argument might be made that the general principles of double punishment are applicable to the Rules of Racing, and that s 51(1) of the Interpretation Act also applies. Ultimately, it is unnecessary and undesirable for this Court to decide whether the principle of double punishment applies in disciplinary proceedings in respect of horseracing under the Racing Act. Undesirable because it is fair to say that these matters did not enjoy the benefit of full argument in the hearing of this proceeding, nor were they explored in any detail in the written submissions of the parties. Unnecessary because, in the result, even if the principles of double punishment could be said to apply to a context such as the present (under the Racing Act and in disciplinary and not criminal proceedings), the facts of this case do not give rise to any potential for double punishment of the kind necessary to enliven the principle.

Central to the prohibition on ‘double punishment’ is a desire to ensure that a person is not punished twice for the same act. In Pearce, the accused was charged with two offences:

(a) inflicting grievous bodily harm upon the victim (‘assault charge’); and

(b) breaking and entering the dwelling and causing grievous bodily harm to the same victim (‘aggravated burglary charge’).

Both charges included, as a necessary element of each offence, the act of causing grievous bodily harm to the victim. The trial judge sentenced the accused to identical terms of imprisonment on both charges, to be served concurrently. The majority held that it could only conclude that the penalty for each charge contained a portion which was to punish the accused for grievous bodily harm to the victim, with the effect that he was doubly punished for the same act. The majority observed:

It is clear in this case that a single act (the appellant’s inflicting grievous bodily harm on his victim) was an element of each of the offences … The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the inquiry is not to be attended by ‘excessive subtleties and refinements’. It should be approached as a matter of common sense, not as a matter of semantics.[31]

The first step in ascertaining whether there has been impermissible double punishment involves the identification of a single act which is common to the two offences. Here, the Plaintiff falls at the first hurdle.

The 2023 charges concerned the use of jiggers on three horses. The Plaintiff says that a necessary element of proof on a charge of ‘use’ of a jigger involves possessing the jigger. The disqualification imposed for the use of the jigger by the Tribunal in relation to the 2023 charges necessarily included, it is said, a portion which was to punish the Plaintiff for possessing the jigger at the time of its use. The Plaintiff says that the 2019 charges for which he received a four year disqualification had already punished him for possession of the jiggers. Accordingly, it is said that the Plaintiff has been doubly punished for possession of a jigger.

It is true that it is necessary to possess a jigger in order to use it, but for impermissible double punishment to arise it must be established that:

(a) the same act of possession is common to both offences charged; and

(b) the penalty imposed upon the Plaintiff does, in fact, involve punishment twice for that same act.

The First Defendant submits that there was no act common to both sets of offences charged in this case and that, in any event, having regard to the record of proceedings and the reasons for determination in both cases, it is clear that the Plaintiff was not punished twice for the same act.

At the time of the 2019 charges, the Rules of Racing included AR 175(hh) which provided that Racing Victoria (or the Stewards exercising powers delegated to them) may penalise:

(hh)Any person who:
(i) uses, or attempts to use, any electric or electronic apparatus or any improper contrivance capable of affecting the performance of a horse in a race, official trial, jump‑out or training gallop; or
(ii)has in his possession, any electric or electronic apparatus or any improper contrivance capable of affecting the performance of a horse in a race, official trial, jump‑out or training gallop.

The 2019 charges concerned the Plaintiff’s possession of three jiggers. Charges 1 to 3 were brought under AR 175(hh)(ii) of the Rules. That is, only the charge of possession was laid, there was no charge of use under AR 175(hh)(i). Charge 6 was under the then AR 175A, which provided as follows:

Any person bound by these Rules who either within a racecourse or elsewhere in the opinion of the Principal Racing Authority (or the Stewards exercising powers delegated to them) has been guilty of conduct prejudicial to the image, or interests, or welfare of racing may be penalised.

All four charges followed the discovery of three jiggers in the possession of the Plaintiff on 30 January 2019 at the Plaintiff’s residence at Miners Rest, near Ballarat. None of the charges laid against the Plaintiff made any allegations that the jiggers had been used on any horses. The charges were heard promptly by the Board, on 6 February 2019. The Plaintiff offered no contest and the charges were found proven. The Board gave reasons for its determination to disqualify the Plaintiff for a period of four years. The Board’s reasons make clear that its decision to disqualify the Plaintiff was based upon the possession of the jiggers alone. The reasons further make clear that the penalty imposed was limited to the Plaintiff’s possession of the jiggers and not their use. This point was emphasised (in the decision of the majority) of the Board no less than five times. In explaining what a jigger is and how it might be used, the Board said:[32]

The electric or electronic apparatus involved is a double‑pronged handheld device known as a “jigger” which effectively conveys a nasty electric shock type of sensation when pushed against a horse, usually in the neck region. This is often done in conjunction with some other event or means of handling, so that the horse comes to associate such event and/or handling with the nasty electric shock. The end result is that it is anticipated that the horse will put on a burst of increased speed. Such devices have long since been banned and have been the subject of rulings by this Board and its predecessors. Apart from the dishonesty and cheating that can be involved, the very important aspect of animal welfare is at the forefront of modern thinking.

The Board went on to observe that it had noted in earlier cases that the ‘practice, possession and use of jiggers was abhorrent, and a practice that tarnishes the image of the racing industry’.[33] Importantly and relevantly, the majority of the Board went on to say:

[W]e appreciate that you are not charged with the use of the jiggers, but even possessing devices capable of inflicting such cruelty is a very serious offence indeed and it warrants stern punishment.[34]

The Board’s conclusion that the mere possession of a jigger was a serious offence found clear support in the Rules themselves, which made possession of a jigger alone sufficient to attract a significant penalty.

It is also clear from the reasons of the Board that the Plaintiff’s breach of AR 175A was a considerable factor in its decision on the penalty:

This is clearly a substantial breach of AR 175A. To adopt the wording used by the Supreme Court of New South Wales in Waterhouse v Racing Appeals Tribunal, there is public knowledge of your conduct; the tendency is to prejudice racing generally, as distinct from your own reputation; and your conduct is capable of being labelled as blameworthy. In short, as stated, we find the charge under AR 175A also made out, as we do with the possession charges.

The only sensible reading of the Board’s reasons is that the ‘conduct’ relied upon in relation to the charges under AR 175A is the act of possessing the jiggers in January 2019 — not their use.

Specifically, it cannot be said that when the Board disqualified the Plaintiff for four years on the 2019 charges it was punishing the Plaintiff for possessing the jiggers at a time when they were actually used by the Plaintiff three months earlier in a different location. The Board deliberately, carefully and correctly confined its consideration of penalty to the charges at hand; namely the possession of the jiggers on 30 January 2019 at Ballarat.

The 2023 charges concerned events which occurred at Warrnambool on 30 October 2018, approximately three months before the raids which discovered the jiggers in the Plaintiff’s possession in late January 2019.

On 14 September 2023, the Plaintiff was charged with 10 offences arising from video footage of 30 October 2018, which showed the Plaintiff (and two others) using a jigger on three horses.

Three charges (charges 4, 5 and 6) were laid in respect of the use of the jigger on three separate horses (Red Cardinal, who was delivered an electric shock on seven occasions; Tosen Basil, who was delivered an electric shock on nine occasions; and Yogi who was delivered an electric shock on nine occasions). The charges of use were brought under AR 231(2)(a) of the Rules of Racing at the time (‘the use charges’), which provided:

(2)A person must not:
(a)use, or attempt to use, any electric or electronic apparatus or other device capable of affecting the performance of a horse in a race, official trial, jump‑out or training gallop …

Three charges (charges 7, 8 and 9) alleged cruelty to each of the horses concerned and were brought under AR 231(1)(a) of the Rules of Racing at the time (‘the cruelty charges’) which provided:

(1) A person must not:
(a)commit or commission an act of cruelty to a horse, or be in possession of any article or thing which, in the opinion of the Stewards, is capable of inflicting cruelty to a horse …

The particulars of the cruelty charges make clear that it was the act of cruelty, namely the application of the jigger to each of the horses, which founded the charges and not possession of the jigger, which is a charge which might also have been laid separately under AR 231(1)(a).

The final charge (charge 10) explicitly alleged that by use of the jigger the Plaintiff had engaged in improper or dishonourable conduct in connection with racing.

In reaching its conclusion as to penalty, the Tribunal confined itself to the charges before it, namely the use, cruelty and dishonesty charges. While it is true that the use of a jigger necessitates possession of it, the possession of the three jiggers in Warrnambool in January 2019 was not the same act of possession that underpinned their use in Ballarat three months earlier. Nor was it treated as such at any stage by the Board in 2019 or the Tribunal in 2024.

Before the Tribunal, the Plaintiff submitted that the criminal law sentencing principle of ‘totality’ applied in the present case, with the effect that the earlier period of disqualification for four years arising from the 2019 charges for possession, should be taken into account in determining an appropriate penalty for the use, cruelty and dishonesty charges. In accepting that submission the Tribunal said:

[T]his seems to be a case where the principles of totality apply. That is so even though there was an unfortunate and basically unacceptably lengthy delay between the occurrence of the use of the jiggers and the ultimate hearing of the resultant Charges in relation to that use, part of which was the delay between the hearing concerning possession and the present hearing in relation to the “using” offences.
What then are the relevant principles of totality of sentences and how do they impact upon the present Charges involving Mr Weir?
In criminal law, the principle of totality applies when sentencing an offender for multiple offences or when sentencing an offender who is already serving an existing sentence. Put another way, when an offender is to serve more than one sentence, the overall sentence must be just and appropriate in light of the overall offending behaviour. That sentence should reflect the scope of an offender’s actions and be fair in light of the entire criminal conduct.

After citing authority in relation to the principle of totality, the Tribunal summarised the position:

Whilst these are brief summaries of the operation of the principles of totality in the context of the criminal law, it seems to us that they should be applicable in the context of disciplinary proceedings such as those currently before us. Indeed, no substantial argument to the contrary was advanced.

The Tribunal concluded that the principle of totality was applicable in this case notwithstanding the time between charges. It was satisfied that the events that were the subject of the two sets of charges (2019 and 2023) arose in the same general factual background and that the penalty should be arrived at taking the combined effect of the earlier penalty into account in coming to a conclusion as to the appropriate penalty for the 2023 charges. This was accepted by Racing Victoria before the Tribunal and expressly endorsed by it in this Court.

In addressing itself to the factors relevant to the application of the totality principle, the Tribunal had regard to, among other things, the length of disqualification imposed in relation to the 2019 charges. In total, the penalty imposed by the Tribunal resulted in disqualification of the Plaintiff for a total period of six years, of which only two years were directly concerned with the actual use of the jigger. That fact alone militates against any inference that the Tribunal imposed double punishment for the possession of the jigger.

On any view, use of the jigger is a more serious offence than mere possession. This is reinforced by the AR 231(5) which imposes a mandatory minimum period of disqualification for the use of a jigger, but no equivalent minimum period for mere possession of the jigger. The Tribunal’s decision to disqualify the Plaintiff for only two years for the more serious offences related to the use of the jigger, where the Plaintiff had been earlier disqualified for four years for the mere possession of three jiggers, renders illogical the suggestion that the Tribunal’s decision in 2024 involved any component of double punishment for earlier possessing jiggers at the time of their actual use.

For all of these reasons, ground 1 is not made out.

Special Circumstances

The Rules of Racing impose a mandatory minimum period of disqualification for any use of a jigger unless a special circumstance is found to exist. AR 231(5) of the Rules of Racing provides:

(5)If a person breaches subrule 2(a), a disqualification for a period of not less than 2 years must be imposed, unless a finding is made that a special circumstance exists, in which case that penalty may be reduced.

Division 4 of the Rules of Racing sets out penalty provisions. AR 283(6)(e) restates the mandatory minimum period of disqualification for the use of a jigger under AR 231(2)(a). The preamble of AR 283(6) provides:

Where a person breaches any of the rules listed below, a disqualification for a period of not less than the period specified for that rule must be imposed unless there is a finding that a special circumstance exists, in which case that penalty may be reduced.

The Rules of Racing state that ‘special circumstance’ means a circumstance stipulated as a special circumstance under the Rules of Racing which, in turn, provide that:

Special circumstance means as set out in LR 105.

Local Rule 105 provides as follows:

LR 105 Special circumstances relevant to the imposition of penalties under AR 283(6)
For the purpose of these Rules and the imposition of a penalty under AR 283(6), a special circumstance may be found if:
(a)the person has assisted the Stewards and/or Racing Victoria or has given an undertaking to assist, after the imposition of a penalty on that person, the Stewards and/or Racing Victoria in the investigation or prosecution of a breach of the Rules;

(b)       the person has pleaded guilty at an early stage;
(c)the person proves on the balance of probabilities that at the time of the commission of the offence, he or she:
(i)        had impaired mental functioning; or
(ii)       was under duress,
that is causally linked to the breach of the Rule and substantially reduces his or her culpability; or
(d)in the interests of justice, the circumstances may be deemed or considered to be special.
[Emphasis added]

The Plaintiff’s third ground of appeal is framed as a failure by the Tribunal to have regard to all the circumstances that it was required to consider in order to determine if ‘special circumstances’ had been established under LR 105.

The Plaintiff’s fourth ground asserts that the Tribunal’s conclusion that special circumstances had not been established was unreasonable, having regard to:

(a) the Plaintiff’s early guilty pleas; and

(b) various circumstances which the Plaintiff says the Tribunal refused (unreasonably) to treat as ‘special’ in the interests of justice.

The Plaintiff’s fifth ground of appeal asserts a failure on the part of the Tribunal to give sufficient reasons for its conclusion that no special circumstances justified reducing the penalty below the mandatory minimum.

The Rules of Racing

Before turning to each of the Plaintiff’s grounds, it is necessary to say something about the proper construction of the relevant rules.

Local Rule 105 is only engaged in circumstances where the charge in question attracts a mandatory minimum penalty. In this case, only the use charges (charges 4, 5 and 6) attracted a minimum period of disqualification of two years.

Local Rule 105 describes ‘special circumstance’ as factors which could be relevant in mitigation for offences to which no minimum penalty attaches.

A finding that a ‘special circumstance’ exists does not compel a reduction in penalty below the mandatory minimum. A finding that an offender made an early plea of guilt might have a mitigatory effect on the ultimate penalty, but it will not necessarily result in a penalty lower than the mandatory minimum if, taking into account all relevant factors, the seriousness of the offence warrants a more significant penalty in all the circumstances.

The existence of facts which fall within LR 105 might open the door to the possibility of a penalty lower than the mandatory minimum, but a lower penalty will not arise where the seriousness of the offence warrants a penalty equal to or greater than the mandatory minimum.

A central plank of the Plaintiff’s third, fourth and fifth ground is the contention that, if the established facts fall within the matters described by LR 105(a) to (d), the Tribunal is, in essence, obliged to find the existence of a ‘special circumstance’, and that in those circumstances, a failure to do so is legally unreasonable. The Plaintiff says that at the very least, the Tribunal’s reasons should explain why it refused to make a finding that a ‘special circumstance’ existed. This contention rests upon a construction of LR 105 which is flawed, and a reading of the Tribunal’s decision with a keen eye for error where none exists.

The formulation of the meaning of ‘special circumstance’ in the Rules of Racing provides that a ‘special circumstance may be found if’ the factual preconditions listed in LR 105(a) to (d) are established. The presence of the ‘may’ is significant in that it denotes the existence of a discretion to make a finding that a ‘special circumstance’ exists even if one or more of the matters listed in LR 105(a) to (d) is established on the evidence. This local Victorian provision is to be contrasted with the language in the New South Wales equivalent of LR 105. LR 108(2) in the New South Wales Rules of Racing provided that:

For the purpose of AR 196(5), special circumstance means where:
(a)the person has pleaded guilty at an early stage and assisted the Stewards or the Board in the investigation or prosecution of a breach of the Rule(s) relating to the subject conduct.
[Emphasis added]

The Victorian provision does not state that a special circumstance will be found (or is established) if one or other of the specified circumstances is found to exist. In Victoria, even if the facts fall within the scope of the specified circumstances listed in (a) to (d) of LR 105, the provision reposes in the Tribunal a residual discretion to determine whether the established circumstance (or combination of circumstances) warrant a finding that they amount to a special circumstance for the purpose of reducing the period of disqualification below the mandatory minimum penalty. The provisions confer upon the Tribunal the ultimate discretion to determine whether the circumstances claimed to be special are, in fact, special enough to warrant a reduction in penalty below the mandatory minimum period of disqualification and, if so, by how much.

The Plaintiff also made the following submissions in relation to LR 105:

What is required is an assessment of whether a special circumstance exists in accordance with LR 105. If so, the specified minimum penalty does not apply, and the determination of the appropriate penalty falls to be considered by reference to each of the relevant considerations, but not with regard being had to the specified minimum penalty that would have applied but for the finding of a special circumstance. Either a special circumstance existed, or did not exist; either the specified minimum penalty applied to the AR 231(2)(a) offences, or did not apply. A binary choice confronted the Tribunal in that regard. If a special circumstance existed, the specified minimum penalty did not apply.
[Emphasis added]

In the course of the hearing, the Plaintiff sought to rely upon the decision of the New South Wales Supreme Court in McDonald v Racing New South Wales (‘McDonald’).[35] The argument which was advanced in the written submissions of the Plaintiff in this case was rejected in McDonald. In that case, a jockey who had been caught betting on a horse he was riding was disqualified for a period of 18 months. The applicable rules imposed a penalty of disqualification for a mandatory minimum period of two years. The jockey had entered an early guilty plea and, on that basis alone, a special circumstance had been found to exist, reducing the penalty to 18 months. The jockey nonetheless complained that the penalty was too harsh and sought review of the Stewards’ decision, and then judicial review of the Racing Appeals Tribunal’s decision upholding the decision of the Stewards. The jockey argued, as the Plaintiff seeks to argue here, that once a special circumstance is found, the mandatory minimum penalty ceases to operate.[36] Rein J said:[37]

I, therefore, do not accept that a finding of a special circumstance leads to AR 196(5)[38] having nothing further to say about the penalty to be imposed, and the mandatory minimum being “got rid of”, as Mr Walker put it …

The Plaintiff did not press the argument made in his written submission, correctly accepting that if a finding is made that a special circumstance exists, the mandatory minimum remains relevant to the sentencing discretion as an indication of the way the legislative framework treats the seriousness of the conduct in question.

Finally, it is important to observe that the principal role of the Tribunal is to determine the just and appropriate penalty. In doing so, all evidence relevant to that question must be considered by the Tribunal, whether or not the charges attract mandatory minimum penalties.

There is nothing in the language of the Rules of Racing which requires the Tribunal to consider or make findings as to the existence of a special circumstance as a first or threshold step. The existence of a special circumstance only arises in the context of charges which attract a mandatory penalty. The existence of that discretion to reduce the penalty below the minimum does not dictate the sequence of the reasoning process. The Rules of Racing do not oblige the Tribunal to make a finding as to the existence of a special circumstance before it undertakes an assessment of the just and appropriate penalty.

Conceptually, and as a matter of construction, there is no barrier to undertaking the task of assessing the existence of a special circumstance, and the task assessing the just and appropriate penalty together because, in truth, both tasks depend upon the same evidence.

All of the matters listed in LR 105 which might be special circumstances are also factors which are relevant to a general plea in mitigation. For such a factor to amount to a ‘special circumstance’ and thus enliven the possibility of a penalty lower than the prescribed minimum:

(a) the charge in question must attract a mandatory minimum penalty; and

(b) but for the existence of the mandatory minimum, the case must be one where a just and appropriate sentence might be lower than then prescribed minimum penalty.

A plea in mitigation which relies upon factors that all fall outside LR 105 will not enliven the discretion to reduce a penalty below the minimum.[39] For example, having a good record or reputation, showing genuine remorse, and demonstrating financial hardship might all be relevant to a general plea in mitigation, but none are matters specified on LR 105 and, as such, will not be sufficient to enliven the discretion to find a special circumstance.

On the other hand, evidence of factors which might fall within LR 105 (such as an early plea of guilty, or general cooperation with the Stewards) is both, and at the same time, relevant to a general plea in mitigation of the offence, and might also enliven the possibility of a reduction in penalty below a mandatory minimum.

Evidence of any factor which might fall within the terms of LR 105 must inevitably be weighed with all other factors relevant to a determination as to the just and appropriate penalty. It follows that the sequence of considerations makes little difference because, in the result, a finding of special circumstance would be of no practical utility if the penalty would, in any event, not be lower than the mandatory minimum, taking into account the seriousness of the offence and all relevant factors in mitigation (including those which might fall within LR 105).

The Plaintiff’s Grounds

The Plaintiff’s Grounds of Appeal 3, 4 and 5 turn on the answer to three central questions: First, how should the Tribunal’s reasons be properly understood in circumstances where it was dealing with two species of charges — one where a mandatory minimum penalty applied, and the other where it did not (Ground 5); second, whether as a matter of statutory construction the Tribunal was obliged to make a finding of ‘special circumstances’ in this case or at all (Grounds 3 and 4); and third, even if it was obliged to make such a finding and did not, has the Tribunal made an error of law material to the outcome.

It is appropriate to deal with each of these matters in turn.

The Tribunal’s Reasons — Ground 5

In the present case, only the use charges (Charges 4, 5 and 6) attract a mandatory minimum penalty. The cruelty charges (Charges 7, 8 and 9) and the dishonesty charge (Charge 10) are not subject to a mandatory minimum penalty. The Plaintiff accepted that in assessing the penalty to be imposed concerning charges not subject to a mandatory minimum penalty, the Tribunal may take into account all relevant mitigatory factors, whether or not those factors might also establish a special circumstance under LR 105. This is particularly important in the present case, given the way that the Tribunal reasoned to its conclusion.

The Tribunal adopted charge 8 as the exemplar of the most serious offending for the purposes of determining penalty. The Tribunal was not prevented from imposing a period of disqualification of less than two years in relation to charge 8 by the Rules of Racing, as it was not subject to a mandatory minimum. Equally, only if the Tribunal was minded to impose a penalty of less than two years in relation to charge 8 could the existence of a special circumstance be of any practical effect in reducing the penalty below the minimum for charges 4, 5 and 6.

In the context of assessing the most serious offending, the Tribunal said:[40]

The repeated application of the jigger to the horses represents acts of cruelty to which Mr Weir has pleaded guilty. It is behaviour which the industry will not tolerate. The reaction of individual horses to it may vary, but the use of a jigger remains a major offence which should attract a significant penalty.

In the next passage, the Tribunal observed that counsel for the Plaintiff argued that the penalty should be less than the mandatory minimum and that the Tribunal should make a finding that special circumstances exist:

Counsel for Mr Weir have argued that a specific circumstance or special circumstances, as referred to in LR 105, exist for the purposes of AR 283(6)(e) and that the otherwise mandatory minimum penalty of disqualification for two years should not be proposed. In detailed written submissions to which Mr Hill spoke, reference was made to various factors in support of this proposition. This relates to Charges 4, 5 and 6.

The Tribunal explicitly noted that these submissions related only to charges 4, 5 and 6 and, by necessary implication, not to charge 8.

The context in which the Tribunal arrived at its decision is important. The Plaintiff’s written submissions addressing the question of penalty accepted, correctly, that the task of the Tribunal was to penalise the Plaintiff and that it had specific power under the Rules of Racing to give any judgment or decision or make such orders as in the opinion of the Tribunal ‘the justice of the case requires’.[41] The Plaintiff submitted that the appropriate and just application of the principles of sentencing, taking account of all of the circumstances (described by the Plaintiff as unique), should yield a period of disqualification of only one year, to be taken to have commenced on 6 February 2023 (more than a year earlier), with the effect that any period of disqualification would have ended on 6 February 2024, four months before the Tribunal’s decision as to penalty.

The Plaintiff’s argument that the penalty should be less than two years was advanced in respect of all charges — including charge 8. Even if the Tribunal were to have accepted the Plaintiff’s contention that the appropriate penalty should be only a one year period of disqualification for charge 8, it would have been of no practical effect unless the penalty for charges 4, 5 and 6 could also be reduced below two years.

In considering the appropriate penalty in the context of assessing the most serious conduct, the Tribunal took into account all of the factors advanced by the Plaintiff in mitigation, as was required.

Taking all those matters into account, and in the context of the Tribunal considering the sample charge (being charge 8), the Tribunal acknowledged:

Thus, there are a number of mitigating factors operating.

The Tribunal went on to say:

However, we are of the opinion that there should be a disqualification and that it should be for the minimum period prescribed by AR 283(6)(e) referred to in relation to Charges 4, 5 and 6 ‑ that is, for two years. That is the specified minimum penalty unless ‘special circumstances’ exist.

The Tribunal’s reason for reaching that conclusion is also plain enough:

Whilst there are a number of very substantial matters in Mr Weir’s favour, the key ones of which have been set out earlier, the bottom line is that he was the person in charge of the horse, the stables and the situation. He was the boss. He was the “hands on” person who actually committed these serious offences and in the example that we have given involving Tosen Basil. He was in charge of, and was the administrator of, a procedure that is abhorrent and deserving of condemnation.

The Tribunal concluded, reinforcing that finding, in the following terms:

Accordingly, we are not of the opinion that sufficient, if any, special circumstances exist so as to justify a reduction of or alteration to the minimum period of disqualification set out in AR 283(6)(e) for Charges 4, 5 and 6.
Because of the factors to which we have referred, the penalty which we impose is that minimum penalty of disqualification for two years over and above the disqualification for four years which Mr Weir has already served. It seems to us that a further disqualification for two years is a fair and appropriate penalty.

In stating that it was ‘not of the opinion that the sufficient, if any, special circumstances exist so as to justify a reduction’, it must be taken to have acknowledged the existence of facts which fell within the terms of LR 105(a) to (d) but, having regard to the nature and seriousness of the offending, it did not regard this as a situation where a reduction of the penalty below the minimum is justified.

The Tribunal again reiterated the basis of its conclusion:

Whilst, as set out above, there are a number of factors and circumstances that justify the imposition of the minimum penalty prescribed by the Rule, we are not of the view that they fall within the category of “special circumstance” as required and constitute an exception.

For completeness, in the commencement decision published on 2 September 2023, the Tribunal restated the basis upon which it had reached its conclusion when it said:

The penalty imposed on Mr Weir was one of disqualification for two years. This was over and above the period of disqualification for four years imposed by the Racing Appeals Tribunal on 6 February 2019, that being for possession of the “jiggers”, the electronic devices. It was in fact an agreed penalty and one which was approved by the Tribunal.
…
We turn now to the findings which we made on penalty for the individual charges, and we bear in mind the submissions recently made. Charges 4, 5 and 6 each concern a breach of AR 231(2)(a) in respect of a relevant horse, the sequence being Red Cardinal, Tosen Basil and Yogi.
The essence of each Charge is the use of an electronic device capable of affecting the performance of a horse.
It was and remains our opinion that the Charges pursuant to AR 231(2)(a), whilst serious, should not be the principal Charges for the purpose of the imposition of penalties.
Charges 7, 8 and 9, and particularly Charge 8, seemed to us to be the appropriate head Charges.
It was our opinion that Mr Weir, having served an agreed and imposed penalty of disqualification for four years for possession of the jigger or jiggers, should serve an additional and separate penalty of disqualification for two years for the use of it or them and that such period of disqualification effectively should commence immediately.
That remains our opinion.

The Plaintiff submits that the reasons reveal that the Tribunal felt obliged to impose the mandatory minimum penalty, and benchmarked the penalties for all other charges against the minimum penalty. The submission falls into the error of construing the reasons of a decision maker ‘minutely and finely with an eye keenly attuned to the perception of error’ which is cautioned against by the authorities.[42]

Read as a whole, the reasons reveal that the Tribunal explicitly assessed the seriousness of the conduct, actively considered the matters raised in mitigation, and reached a conclusion that a two year period of disqualification was just and appropriate in all the circumstances. The reasons proceed upon the basis that the factual matters put in mitigation by the Plaintiff were accepted by the Tribunal. Some of those accepted facts might have formed the basis of a finding that a special circumstance existed (e.g. the early plea of guilty, co‑operation, and evidence upon which the Plaintiff sought to establish that the interests of justice warranted a lower penalty), but the Tribunal had decided that a penalty lower than the minimum was not, in the circumstances, appropriate for any of the charges.

The Plaintiff’s fifth ground of appeal, that the Tribunal erred by failing to give sufficient reasons for not finding the existence of a special circumstance under LR 105, is without merit.

The Plaintiff submits that the Tribunal gave no explanation for why the factors that he says mandated a conclusion that a special circumstance existed (e.g. the Plaintiff’s assistance, early guilty pleas and the other circumstances) were not, in the Tribunal’s assessment, sufficient to invoke LR 105. In fact, the Tribunal’s reasons plainly explain why it declined to make such a finding. The Tribunal found that the Plaintiff:

was in charge of, and was the administrator of, a procedure that is abhorrent and deserving of condemnation. Accordingly, we are not of the opinion that sufficient, if any, special circumstances exist so as to justify a reduction or alteration of the minimum period of disqualification …

The Plaintiff’s submission as to the adequacy of the Tribunal’s reasons proceeds upon the flawed premise that the accepted facts ‘mandated’ a conclusion that a special circumstance existed. As a matter of construction, the existence of facts which might fall within the terms of LR 105 does not ‘mandate’ a finding that a special circumstance exists.

The Tribunal found that LR 105 was not engaged because of the seriousness of the conduct of the Plaintiff and the need for the conduct to be condemned. In this passage of the reasons, the Tribunal exercises the discretion given to it by LR 105 not to find the existence of a ‘special circumstance’ sufficient to reduce the mandatory minimum penalty. The Tribunal’s reasoning is consistent with the proper construction of LR 105 and faithful to the Tribunal’s finding as to the appropriate and just penalty.

The Plaintiff’s central premise, that the facts mandated a conclusion that special circumstances existed, is at the heart of his grounds 3 and 4.

Ground 3

The Plaintiff’s third ground states:

The Tribunal erred by failing to have regard to all of the circumstances that it was required to consider in order to determine if “special circumstances” had been established under LR 105.

No inference can be drawn that the Tribunal did not have regard to the factual matters relied upon by the Plaintiff and none is sought to be drawn by him. The Plaintiff’s real complaint is that the Tribunal did not make a finding that a special circumstance existed based upon those facts.

The Plaintiff’s written submission makes his position clear:

Although the factual circumstances that underpinned the Plaintiff’s submission as to the presence of a special circumstance were accepted – for example, the Tribunal’s finding that he had pleaded guilty at an early stage – those factual circumstances were considered in mitigation of penalty. They were not considered in relation to the application of LR 105. Rather, in finding that LR 105 was not engaged the Tribunal considered only the objective gravity of the offending and the Plaintiff’s moral culpability for it. So much is plain from the Tribunal’s reasons.
Consequently, the Tribunal erred by failing to have regard to all of the circumstances that it was required to consider in order to determine if “special circumstances” had been established under LR 105.
[Emphasis added]

The Plaintiff seeks to draw a distinction between consideration of the factors which might establish a ‘special circumstance’ and consideration of those same factors in mitigation of the penalty. The distinction is illusory.

The facts before the Tribunal (and accepted by it) established circumstances of the kind described in LR 105(a), (b) and (d) — for example, the Tribunal accepted that there was an early plea of guilty, and co‑operation with the Stewards. Those same facts are relevant to mitigation of penalty. All of those facts were considered by the Tribunal.

The Plaintiff seems to say that, having established a fact which falls within LR 105(a) to (d), the Tribunal was obliged to find that a special circumstance existed for the purpose of AR 283(6), and that failing to do so amounted to error of law. For the reasons already stated, on the proper construction of AR 283(6) and LR 105, even if the accepted facts fell within those described by LR 105(a) to (d), the Tribunal was not obliged to find ‘special circumstances’ where it had reached the conclusion that the just and appropriate penalty did not contemplate a reduction of the minimum penalty having regard to the totality of the circumstances. It was open to the Tribunal to find that such evidence was insufficient to justify a reduction in the penalty below the minimum in the case before it, and that is what it did find — even though it could be said that the same evidence (of an early guilty pleas etc.) might have established a special circumstance in some other case.

The Plaintiff is wrong to say that in finding that LR 105 was not engaged, the Tribunal considered only the objective gravity of the offending and the Plaintiff’s role. On the contrary, the Tribunal expressly considered all of the mitigating factors raised by the Plaintiff in its assessment of the penalty. It did so, not only in relation to charges 4, 5 and 6 (which attract a mandatory penalty), but also in relation to charges 7 to 10, and in particular charge 8 which the Tribunal adopted as the ‘exemplar’ charge. The Tribunal’s conclusion that no ‘special circumstance’ arose must be viewed in the context that:

(a) LR 105 gives the Tribunal a discretion to find (or not) a special circumstance;

(b) the discretion only arises in relation to charges that attract a mandatory minimum penalty; and

(c) a finding that a ‘special circumstance’ exists for charges attracting a mandatory minimum will be of no practical value where the penalty for such charges, or other charges not subject to such a minimum, would be equal to or greater than the minimum in any event.

On a fair reading of the Tribunal’s decision as a whole, it had regard to every matter the Plaintiff advanced in assessing the appropriate penalty, but rejected the Plaintiff’s submission that the just and appropriate penalty was a disqualification period of one year (or of any period of disqualification less than the minimum) for any of the charges against the Plaintiff.

The Plaintiff’s criticism that the Tribunal failed to consider the factual circumstances in the context of LR 105 (as establishing a ‘special circumstance’) does not engage with the reality that in any number of cases the factual circumstances described by LR 105(a) to (d) (such as an offender’s early plea of guilty) are relevant as mitigatory factors in the exercise of sentencing discretion generally (such as charges 7 to 10 in this case), without enlivening the operation of LR 105 at all. Neither does it engage with the Tribunal’s finding that the just and appropriate penalty in all the circumstances was a period of disqualification equal to the mandatory minimum penalty on all charges, including those charges which did not attract a mandatory minimum.

Ground 4

The Plaintiff’s fourth ground alleges that the Tribunal was unreasonable in not finding that a special circumstance had been established on the basis of the Plaintiff’s early guilty plea alone, and on the basis of the totality of the matters raised in mitigation.

The ground proceeds upon the same flawed premise as ground 3, namely, that the Tribunal was obliged to make a finding that a special circumstance existed for the purpose of LR 105 because there was evidence which fell within the terms of (a) to (d). The existence of the discretion contained in the language of LR 105 — that a ‘special circumstance may be found if’ — contradicts the contention that the Tribunal was bound to make such a finding. In this case, where having had regard to the seriousness of the offending and all relevant mitigatory factors, the prospect of a penalty lower than the mandatory minimum was not within the Tribunal’s contemplation, the discretion to reduce the penalty was not engaged.

The ground also misstates the effect of the Tribunal’s reasons. The Tribunal found that it was ‘not of the opinion that sufficient, if any, special circumstances exist so as to justify a reduction or alteration of the minimum period of disqualification’.

This was not a finding that the facts did not fall within the terms of LR 105(a) to (d). Rather, it was a finding that those findings were not sufficient to support a finding that a special circumstance existed to warrant reduction of the penalty below the minimum.

In the circumstances of this case, a finding that a special circumstance existed might have established the theoretical possibility of a penalty less than the mandatory minimum. The utility and significance of a finding that a ‘special circumstance’ existed evaporated once the Tribunal reached the conclusion that the just and appropriate penalty for all of the charges would not be less than the minimum. The Plaintiff’s role in the offending was the key factor underpinning the Tribunal’s conclusion as to the penalty. The Tribunal’s conclusion that there were insufficient, if any, special circumstances to justify a reduction of the penalty below the minimum penalty was clearly within the scope of what a rational or logical person might find having regard to all the circumstances.[43]

Accordingly, there was no unreasonableness in the Tribunal declining to treat the facts accepted by it as amounting to a special circumstance.

Materiality

In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘LPDT’),[44] the majority of the High Court observed:

6.In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality.
7.In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision‑making process is ordinarily to be interpreted as incorporating such a “threshold of materiality” in the event of non‑compliance.[45]

Having found that grounds 3, 4 and 5 are not made out, it is, strictly speaking, unnecessary to consider whether the errors alleged by the Plaintiff are material to the outcome in the manner described by LPDT. The Plaintiff did not address the question of materiality in its written submission, and the matter was traversed only briefly in oral argument.

It is sufficient to observe that even if it is accepted that the Tribunal was wrong to conclude that no finding of special circumstance should be made in relation to charges 4, 5 and 6 — it is clear enough that the explicit intention of the Tribunal was that a two year period of disqualification should attach to charges 7 to 10, which were charges unaffected by any consideration of the existence of a special circumstance. That being the case, the error alleged by the Plaintiff would not have affected the result.

Unreasonable Penalty — Ground 2

At the hearing before the Tribunal on 5 July 2024, and after the Tribunal had given its decision imposing a two year period of disqualification, an issue arose as to the proper commencement of the period of disqualification. The Tribunal invited the parties to make written submissions as to the commencement of the period of disqualification and then handed down a separate decision on that issue on 2 September 2024.

The Plaintiff submitted that the period of disqualification should have commenced from February 2023, such that the period of disqualification would now be at an end, even if it were for two years. The Tribunal decided that the period of disqualification should be prospective, commencing from 9 September 2024.

The Plaintiff submits in this Court that the two year period of disqualification in combination with the commencement date imposed was unreasonable and contrary to the interests of justice. The Plaintiff submits that on the Tribunal’s reasoning he would be without a licence for a period which is excessive and out of proportion with established sentencing practice. The so called ‘sentencing practice’ was derived from other decisions of the Tribunal in relation to similar matters (described as the ‘tariff’). The submissions made in this Court as to the ‘tariff’ reprise the same material and submissions made before the Tribunal.

For present purposes, the First Defendant’s summary of the relevant principles and authorities in relation legal unreasonableness is acceptable:

A finding of legal unreasonableness “is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”.[46] However, “[w]here the reasons of a decision maker demonstrate a justification for the exercise of the power it would be rare to find unreasonableness”.[47] A decision is not legally unreasonable if “it lies within the scope of rational‑decision making”,[48] such that “there is room for a logical or rational person to reach the same decision on the material before the decision maker”.[49]

There is nothing about the reasons given by the Tribunal which lacks evident and intelligible justification for the conclusions it reached as to commencement.

At the core of the Plaintiff’s contention that the period of disqualification is excessive and out of proportion is the assertion that the Tribunal’s decision as to the commencement of the disqualification period amounts to an ‘effective disqualification’ from having a licence for a period of in excess of 7 years and 7 months. It is this total period of ‘effective disqualification’ which is said to be unreasonable, excessive and out of proportion.

The Plaintiff’s description of the ‘effective disqualification’ embraces the period from 6 February 2023 to July 2024, during which the Plaintiff was unlicensed as a trainer. Although the Plaintiff was not subject to orders preventing him from applying for a licence, the criminal charges which were laid against the Plaintiff (and ultimately withdrawn) remained pending throughout a significant part of that period. Once withdrawn, the Plaintiff was then subject to a delayed and slow investigation by Racing Victoria. The Plaintiff submitted that in this period, though not subject to any disqualification and theoretically able to apply for a licence, he was of the view that there was no real prospect of a licence being granted while the criminal charges remained unresolved, or while there was an active investigation underway by Racing Victoria. The Plaintiff says that, in effect, the possession of jiggers and the later charges in relation to the use of them, would have the combined effect of precluding him from fully participating in the racing industry for 7 years and 7 months.

The Tribunal accepted that the Plaintiff was not able to participate fully in the racing industry as a licensed trainer during that period. The Tribunal also noted that being unlicensed but not subject to disqualification, the Plaintiff was able to undertake significant pre‑training and spelling operations during the relevant period. Importantly, being unlicensed permitted the Plaintiff to undertake activities at his farm which, if he had been subject to actual disqualification, he would not have been permitted (unless otherwise authorised) to carry on without breaching the disqualification order.[50]

In the commencement decision, the Tribunal concluded unambiguously that its intention was that the period of disqualification commence prospectively, because in its view the Plaintiff should be subject to a total period of disqualification of 6 years.

The Stewards argued, and the Tribunal accepted, that the period between February 2023 and July 2024 was not and did not amount to ‘effective disqualification’ because as an unlicensed person, the Plaintiff was permitted to, and did, carry on a range of profitable activities which would not be available to a person subject to disqualification.

The Tribunal concluded that:

By the same token, the period from the end of disqualification on 7 February 2023 to date cannot be seen as a period of penalty. Mr Weir made no application to be relicensed and has not been so. Very successfully, he has carried out an operation involving the preparation and spelling of thoroughbreds.

In its decision of 2 September 2024, the Tribunal restated the principles of totality, affirmed its findings as to penalty of 5 July 2024 and reiterated its opinion that the Plaintiff should serve an additional period of disqualification of two years over and above the four year disqualification for the 2019 charges. The Tribunal rejected the Plaintiff’s contention that the period between February 2023 and July 2024 should be counted as a period of disqualification. In the result, the Tribunal found that a period of disqualification of 6 years in total was appropriate.

The justification for the Tribunal’s decision to impose the additional two year disqualification in relation to the use, cruelty and improper conduct charges was that: (1) those charges involved serious misconduct by the Plaintiff that was wholly distinct from the misconduct the subject of the 2019 charges; (2) while the use of the jigger in the manner admitted by the Plaintiff was abhorrent, having regard to the mitigatory factors the conclusion that the penalty should be a further period of disqualification of two years and not more was justified; (3) any disqualification should be ‘in addition’ to the disqualification imposed in respect of the 2019 charges; and (4) the period of disqualification should commence from September 2024 because the Tribunal did not regard the period between February 2023 and July 2024 as one which could be treated as ‘effective disqualification’.

There is no aspect of the reasoning which can be described as unintelligible or beyond the scope of rational decision making. The findings of the Tribunal as to penalty and the commencement of the period of disqualification were clearly open to it on the material before the Tribunal.

The Plaintiff’s second ground cannot be made out.

Accordingly, the application is dismissed.

---

SCHEDULE OF PARTIES

S ECI 2024 05372
BETWEEN:
DARREN KENNETH WEIR	Plaintiff
- v -
RACING VICTORIA LIMITED (ACN 096 917 930)	First Defendant
VICTORIAN RACING TRIBUNAL	Second Defendant

[1]Racing Act 1958 (Vic), s 50C(c).

[2]The Rules of Racing comprise rules which are applicable all over Australia (indicated by the designation ‘AR’), but which can be and are augmented by local rules which apply only in Victoria (indicated by the designation ‘LR’).

[3]Local Rules of Racing 26.

[4]Rules of Racing AR 101.

[5]Ibid AR 61.

[6]Ibid AR 231(5), 283(6)(e), both of which impose a mandatory minimum period of disqualification for a breach of AR 231(2)(a).

[7]Ibid AR 2 ‘Serious Offence’.

[8](1995) 184 CLR 163.

[9]Ibid 175 (The Court) (citation omitted); see also Igoe v Ryan (No 2) [2020] FCA 1091, [50] (Logan J).

[10]See Supreme Court Act 1986 (Vic) s 3(6), read with Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 56.01(1).

[11]Craig, 174 (The Court) citing Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132, 140 (Brennan J).

[12](1998) 194 CLR 610.

[13]Ibid 623 [40] (McHugh, Hayne and Callinan JJ).

[14]Interpretation of Legislation Act 1984 (Vic) s 51.

[15][2013] VSCA 374.

[16]Ibid [1]–[5], [42], [44]–[50] (The Court).

[17]Ibid [57]–[62] (The Court).

[18]Ibid [63]–[75] (The Court).

[19]Ibid [66]–[68] (The Court) (citations omitted).

[20]Ibid [71], [75] (The Court).

[21][2018] VSCA 96.

[22]Ibid [25] (The Court).

[23]Ibid [65] (The Court) (footnote in original).

[24]Ha v Pharmacy Board of Victoria [2002] VSC 322 [91]–[94] (Gillard J), citing Clyne v New South Wales Bar Association (1960) 104 CLR 186, 201; New South Wales Bar Association v Evatt (1968) 117 CLR 177, 183.

[25]See for example Mclean v Racing Victoria [2020] VSCA 234; Thompson v Racing Victoria Ltd [2020] VSC 574; Goodrich v Kilmore Racing Club Inc [2021] VSC 767.

[26]Racing Act ss 5E, 5F; compare with s 82 which confers rule making power on Greyhound Racing Victoria (itself established by s 69).

[27]Racing Act ss 3D, 3E.

[28]Racing Act s 3A.

[29]Racing Act s 5E.

[30][2018] VSC 64.

[31]Pearce, 623 [42] (McHugh, Hayne and Callinan JJ).

[32]Racing Victoria Stewards v Weir, Racing Appeals and Disciplinary Board, 6 February 2019, 2.

[33]Ibid.

[34]Ibid.

[35][2017] NSWSC 1511.

[36]Ibid [20], [23].

[37]Ibid [33]–[34].

[38]Being the predecessor to AR 283(6).

[39]See Buckley v The Queen [2022] VSCA 138 (The Court) where having regard to all relevant circumstances the Court would have been minded to impose a sentence different to the prescribed mandatory sentence, but was unable to find that the matters in mitigation fell within the language of the exception.

[40]See ruling on 9 September 2024, CB 338.

[41]Plaintiff Submission (7 October 2024), [14].

43 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, 287 cited in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272 and cited in Hanson v Director of Housing [2022] VSC 710, [47].

[43]Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 649–50 [135] (Crennan and Bell JJ) (‘SZMDS’).

[44][2024] HCA 12.

[45]Ibid [6]–[7] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ, Beech‑Jones J relevantly agreeing at [38]).

[46]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [76] (Hayne, Kiefel and Bell JJ).

[47]Zhong v Attorney-General (Vic) [2025] VSCA 1, [89] (Niall, Boyce and Kenny JJA) (‘Zhong’), citing Minister for Immigration and Border Protection v SZFW (2018) 264 CLR 541, 574 [84] (Nettle and Gordon JJ).

[48]Zhong, [92] (Niall, Boyce and Kenny JJA).

[49]SZMDS, 649 [135] (Crennan and Bell JJ).

[50]See AR 263(1).

[2025] VSC 367

30 June 2025