Sarkis v Greyhound Racing New South Wales

1. [1]

   The plaintiff breeds and races greyhounds.

2. [2]

   The first defendant, Greyhound Racing New South Wales, is a body corporate constituted under the Greyhound Racing Act 2009 (NSW) (“the Act”). Its functions include the control, supervision and regulation of greyhound racing in New South Wales.

3. [3]

   The second defendant is a steward of the first defendant.

4. [4]

   The plaintiff is registered with the first defendant as a trainer and breeder of greyhounds.

5. [5]

   By letters dated 20 October and 2 November 2015, the second defendant notified the plaintiff that she was conducting an inquiry under the GRNSW Greyhound Racing Rules (“the Rules”). The Rules are made pursuant to s 23(1) of the Act.

6. [6]

   The letters stated that the basis of the inquiry was allegations made by three individuals at the Special Commission of Inquiry into the Greyhound Racing Industry (as conducted by the Honourable Michael McHugh AC QC) that the plaintiff had engaged in live baiting.

7. [7]

   In her 20 October 2015 letter, the second defendant said that she was considering imposing an interim suspension of the plaintiff's registration pending the outcome of the inquiry, pursuant to r 92(5)(c) of the Rules. She said that she did not consider herself bound to have regard to r 92(4). I will return to that rule below.

8. [8]

   The second defendant in effect invited the plaintiff to show cause why she should not so proceed.

9. [9]

   The plaintiff asked to make submissions in person. That occurred on 29 October 2015, when the plaintiff attended on the second defendant and a senior investigator of the first defendant, Mr James Monaghan. The transcript of that meeting takes up some 26 pages. It is clear that the plaintiff had ample opportunity to put his side of the story. He denied vigorously the allegations that had been made by his accusers before Mr McHugh.

10. [10]

    In an affidavit sworn in these proceedings, the plaintiff said:

11. [11]

    On 10 November 2015, the second defendant decided to suspend the plaintiff's registration. Her reasons included the following:

12. [12]

    The second defendant described the “appeal rights” referred to in her decision in her letter to the plaintiff of 12 November 2015, under cover of which she relayed to the plaintiff her decision. That description was as follows:

Statutory Setting

1. [13]

   S 21(1)(g) of the Act gives the first defendant the power to:

2. [14]

   S 21(3) of the Act is in the following terms:

3. [15]

   Rule 86 deals with offences. It is common ground that if (which he denies) the plaintiff has engaged in live baiting, that would be an offence within the meaning of one or other of the subsections of r 86.

4. [16]

   Rule 90 deals with inquiries, and provides, amongst other things, that a steward of the defendant can conduct an inquiry.

5. [17]

   Rule 92 deals with the conduct of inquiries. Subrules 92(4) and (5) are particularly relevant, and in the following terms:

6. [18]

   Section 15A of the Racing Appeals Tribunal Act 1983 (NSW) provides that a person aggrieved by, amongst other things, a decision of a steward of the first defendant has a right of appeal to the Racing Appeals Tribunal (“the Tribunal”). Such an appeal is by way of new hearing. Fresh evidence may be given. A hearing before the Tribunal is a hearing de novo.

7. [19]

   Under the Racing Appeal Tribunal Regulations:

8. [20]

   I have no reason to doubt that the Tribunal has power, if necessary, to construe the Rules. I therefore see this matter as being different from the circumstances considered by the Court of Appeal in Day v Harness Racing New South Wales [2014] NSWCA 423; 88 NSWLR 594. In that case, the question was whether the relevant tribunal could consider the validity of the Rules under consideration (see for example per Leeming JA at [128]). I will return to this below.

9. [21]

   Had the plaintiff exercised his right to appeal within seven days of notification of the second defendant's decision (that is, by on or about 19 November 2015), the proceedings in the Tribunal would have commenced by at least 17 December 2015 and may well have been concluded by now.

10. [22]

    The plaintiff chose not to exercise his right to appeal. In his affidavit he gave these reasons for making that decision:

11. [23]

    The plaintiff also said that he owed money to his solicitor arising from an application made in this court on 2 October 2015 arising from an earlier decision by the first or second defendant to suspend his licence. Those proceedings were dismissed by consent on 8 October 2015 with costs. However, the plaintiff did not say that he was unable to put his solicitor in funds.

12. [24]

    The plaintiff said in his affidavit:

13. [25]

    The plaintiff paid his outstanding solicitor's accounts by 3 December 2015.

14. [26]

    He did not then seek to approach the Tribunal and seek leave to appeal out of time. Instead, he instructed his solicitors to write to the defendants protesting the decision which had been made. The solicitor's letter concluded:

15. [27]

    Thus, at that stage, the plaintiff did not foreshadow any intention to approach the Tribunal or the Court. Rather, instead, he exhorted the first defendant to proceed expeditiously with the inquiry.

16. [28]

    These proceedings were commenced on the 15 December 2015. They came on for hearing before me as vacation judge yesterday.

Judicial review

1. [29]

   The plaintiff seeks prerogative relief and an order quashing the second defendant's decision.

2. [30]

   Mr Giles SC, who appeared for the defendants, pointed out that the High Court has very recently emphasised, if the point needed emphasis, the limited scope of judicial review.

3. [31]

   Thus, in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50, French CJ and Bell, Keane and Gordon JJ said at [23] and [24], relevantly:

4. [32]

   My attention was drawn by Mr Giles, and by Mr Cheshire SC, who appeared for the plaintiff, to the familiar observations of Mason J, as his Honour then was, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40:

5. [33]

   Mr Cheshire advanced a number of bases upon which he said that jurisdictional error had occurred.

6. [34]

   First, to adopt Mr Cheshire's words:

7. [35]

   I do not agree. Although the second defendant expressed the reasons for the suspension in the language that Mr Cheshire has repeated, her decision was also, obviously, in my opinion, made for disciplinary purposes. In addition, the reference in s 21(3) of the Act to work health and safety must, in the context in which that language appears, refer to the health of animals as well as people. Live baiting obviously gives rise to issues about that matter.

8. [36]

   The second ground Mr Cheshire advanced was that the terms of r 92(4), which I have set out above, required that the second defendant take into account the plaintiff's character and antecedents. In effect, Mr Cheshire's submission was that such a matter was a mandatory consideration.

9. [37]

   I do not agree. In my opinion, on the proper construction of r 92, the matters in subr 92(4) are matters to be taken into account at the inquiry itself, and not when suspension is contemplated. That is made clear, as Mr Giles pointed out, by the language of subr 92(4)(b). That section refers to "breach", which, in that context, must mean breach as found; that is, at an inquiry.

10. [38]

    I do not consider that the matters in subr 92(4) are matters which must be taken into account in exercising the power under subr 92(5). As I have mentioned, my opinion is that the Tribunal would have power to consider submissions as to the proper construction of subr 92(4). The mere fact that a question of construction might arise is not a matter which should itself have deterred the plaintiff from approaching the Tribunal (I will return to this below).

11. [39]

    In her letter of 20 October 2015, the second defendant said that, in the context of suspending the plaintiff's registration, she did not consider herself bound to take into account the matters in subr 92(4). In my opinion, she was correct.

12. [40]

    In any event, had the second defendant taken into account the plaintiff's antecedents, it "could not have materially affected the decision" (see Peko at 40, as set out at [32] above).

13. [41]

    The plaintiff's antecedents are poor. Over the last quarter century he has incurred numerous fines, a two year disqualification starting in 1990 (which he disclosed in his affidavit) and a three and a half year disqualification commencing in 2005 (a matter which he did not disclose).

14. [42]

    The third ground upon which Mr Cheshire relied was that the second defendant did not inquire of the plaintiff as to the likely effect on him of the suspension.

15. [43]

    In that regard, the second defendant said in a letter of 7 December 2015:

16. [44]

    However, the plaintiff had every opportunity at the 29 October 2015 meeting to emphasise the likely effect of a suspension. In my opinion, it was not for the second defendant to inquire into points not raised by the plaintiff.

17. [45]

    The fourth ground relied upon by Mr Cheshire was that, although the second defendant relied upon the fact that the plaintiff's accusers had made their accusations under oath, she had not taken into account the fact that the plaintiff denied those allegations. In my opinion, that submission is not correct. The second defendant's document makes clear that she did know and took account of the fact that the defendant denied the allegations.

18. [46]

    The fifth matter relied upon by Mr Cheshire was that the second defendant had prejudged the issue. Mr Cheshire submitted that an independent observer might reasonably apprehend that the second defendant was not open to persuasion. I do not agree. The second defendant's decision was to make a suspension pending an inquiry. I see no sign in the words that she used of any prejudgment of the issue.

19. [47]

    Sixth, and finally, Mr Cheshire submitted that the second defendant failed to take into account the fact that the plaintiff’s accusers were not (evidently) suspended and this bespoke a lack of "intelligible justification" (to adopt the words in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 per Hayne, Kiefel and Bell JJ at [76]).

20. [48]

    I do not agree. I see no sign of the second defendant purporting to exceed her powers or misunderstanding her powers.

21. [49]

    For those reasons, I am not persuaded to grant the plaintiff the prerogative relief he seeks.

22. [50]

    In any event, I see the plaintiff's failure to exercise his right to appeal to the Tribunal as a separate, and of itself decisive, consideration against the granting of relief.

23. [51]

    It is well-established that the availability of an appeal to a specialist tribunal, especially one providing for a hearing de novo, is a strong discretionary ground to withhold prerogative relief (see M Aronson and M Groves, Judicial Review of Administrative Action, (5th ed, Thomson Reuters, 2013) at [12.270]).

24. [52]

    Here, the plaintiff chose not to go to the Tribunal because he apprehended that it had a “tendency to favour the defendant”. Evidently, he does not have that apprehension about this Court. Plainly he was forum shopping.

25. [53]

    I do not see the matters to which the plaintiff referred in his affidavit (which I set out at [22] above) as providing an adequate explanation for his decision not to approach the Tribunal. Mr Cheshire drew attention to the observations of Sperling J in Australian Securities and Investments Commission v Farley [2001] NSWSC 326; 51 NSWLR 494 at [24]:

26. [54]

    However, I do not see the question here to be concerned merely with the "form of the proceedings". What is involved is a deliberate decision by the plaintiff not to avail himself of a right to appeal to a specialist tribunal, able and required to deal with the matter expeditiously. Instead, the plaintiff chose to approach the Court for prerogative relief in the hope of getting a better outcome. As I have said, had the plaintiff exercised his right to appeal to the Tribunal, the matter would almost certainly by now have been heard and may very well have been decided. Even now the plaintiff can apply to the Tribunal to appeal out of time.

27. [55]

    For those reasons, I order that the amended summons be dismissed with costs.