Golden v V’landys

Joseph Golden, the plaintiff, challenges two decisions made by Peter V’landys, the first defendant, on behalf of Racing New South Wales (Racing NSW), the second defendant. Mr V’landys is, and was at the relevant time, the Chief Executive of NSW Racing. The first decision, made on 8 June 2011, resulted in the plaintiff’s trainer’s licence being suspended for six months. The second decision, made on 24 June 2011, resulted in the plaintiff being warned off racetracks controlled by Racing NSW indefinitely. The plaintiff also claims damages for alleged misfeasance in public office by Mr V’landys.

In order to address the questions to be determined it is necessary to set out the regulatory framework.

Section 4 of the Thoroughbred Racing Act established Racing NSW as a body corporate. Section 6 provided that it was to consist of a Chief Executive and five appointed members. Section 11 provided that it is the duty of each appointed member to act in the public interest and in the interests of the horse racing industry as a whole in New South Wales. Section 11A provided that Racing NSW must adopt a code of conduct to be observed by members and staff of Racing NSW which is required to include a statement of the duty of members of Racing NSW under s 11 and the duties and obligations of members under s 21.

Section 12 provided:

Section 13(1) relevantly provided:

Section 14 relevantly provided:

Section 14AA relevantly provided:

Section 21 required the disclosure of pecuniary interests by members of Racing NSW or members of a Racing NSW’s committee. Section 22 provided that Racing NSW may establish committees to assist it in connection with the exercise of any of its functions.

Section 24 provided:

Section 13 of the Racing Administration Act relevantly provided:

Section 15(1)(d) of the Racing Appeals Tribunal Act (the RAT Act) provided that a person who is aggrieved by a decision of Racing NSW may appeal against the decision to the Racing Appeals Tribunal (the Tribunal). Section 16 provided that an appeal is to be by way of a new hearing and fresh evidence, or additional or substitute evidence, may be given on appeal.

Section 18 of the RAT Act provided for a regulation-making power, including a power to make regulations that provide that no appeals may be made under the Act except in respect of prescribed classes of matters.

Clause 5 of the Racing Appeals Regulation provided that, in a case of an appeal under s 15(1)(d) of the RAT Act, an appeal may be made to the Tribunal from certain decisions, which include a decision to warn off a person or to suspend any licence. Clause 6 provided that in the case of an appeal under s 15(1)(d) of the RAT Act appeals are to be initiated by the lodging of a written notice of appeal with the Secretary, in the case of an appeal made under s 15(1)(d), within seven days of the date on which the appellant is notified of the decision. There is no provision in either the RAT Act or the Racing Appeals Regulation for an extension of this time period.

The Rules of Racing of Racing NSW comprise the Australian Rules of Racing (AR); the Local Rules of Racing (LR); and the Rules of Betting.

AR 2 provided that any person who takes part in any matter coming within these Rules thereby agrees with the Australian Racing Board and each and every Principal Racing Authority to be bound by them.

AR 7 provided, relevantly,

AR 175 relevantly provided:

AR 182 relevantly provided:

AR 182A provided:

AR 183 provided:

AR 197 relevantly provided:

LR 6 provided:

LR 51(2) provided:

The Racing NSW Board Code of Conduct provided, relevantly:

On 21 February 2005 the Board of Racing NSW (the Board) resolved to confer on the Chief Executive the power and authority to manage the business of Racing NSW, subject to its limitations policy.

On 17 March 2008 the Board resolved to abolish the Licensing Committee as a sub-committee of the Board and to delegate its licensing functions to the Chief Executive.

On 23 April 2008 the Board resolved to delegate its warning off authority, under LR 6 to the Chief Executive.

On 15 September 2008 the Board resolved to authorise the Chief Executive to sub-delegate his functions to management and employees of Racing NSW. A Licensing Committee was established, which comprised a panel of Racing NSW managers and employees representing the Licensing, Stewards, Legal and Industry Training Departments of Racing NSW. The Licensing Committee was chaired by the General Manager-Regulatory and provided assistance to the Chief Executive in dealing with licensing matters at his or her direction.

The plaintiff lives on a property at Grafton of about 45 hectares where he keeps horses. He used to own the property but, in 2013, he sold it to his daughter. He kept Brahman cross-bred cattle on the property from 1984 to 1988 but since that time he has carried out various improvements to the property for the benefit of horses.

The plaintiff was, by occupation, an accountant but in about 2005 he reduced the time he spent on accountancy and consulting services and dedicated more of his time and energy to building up a horse breeding and racing business. In 2010 he began training his own horses.

The plaintiff raced his horses, with mixed success. The total prize money for the 2010 financial year was $7,600 and for the following year, $10,400. He also earned money for starter’s fees (paid in respect of horses which started a race) and rebates (paid in respect of horses that finished but did not get a place). In 2010 the plaintiff’s gross income from racing horses was $11,362; in 2011 it was $20,670. In those years he made taxable losses, after deductions for expenses.

In 2007 the equine influenza virus affected horses in Australia. In response the Commonwealth established the Commercial Horse Assistance Payment Scheme (CHAPS) to compensate horse owners and trainers.

In 2009 the plaintiff applied for a full country training licence. He had previously held an owner/trainer’s licence but had allowed it to lapse due to his disenchantment with the way CHAPS had been administered. In January 2008 the plaintiff wrote to Kevin Rudd (the then Prime Minister), Tony Burke (the then Minister for Agriculture, Fisheries and Forestry) and Mr V’landys about his concerns. He spoke to local newspapers, such as the Daily Examiner, about what he saw as the abuse of CHAPS. The Daily Examiner published an article in April 2008 reporting some of the plaintiff’s allegations.

In November 2010 the plaintiff was notified by Racing NSW that he was not to race one of his horses, Abilina, more than once a week, apparently due to its concern that more frequent racing might be detrimental to the health of the horse. By letter dated 17 November 2010 the plaintiff wrote to Mr V’landys to complain about the decision. In the letter, the plaintiff accused Mr V’landys of being responsible for an “unprofessional review”.

The plaintiff had entered Abilina in at least two races that were fewer than seven days apart. Accordingly, he became liable for scratching fees in respect of races for which Abilina was entered but was not, by reason of the directive from Racing NSW, permitted to run. The plaintiff was charged a scratching fee of $80. His request that the fee be reversed was declined.

On 10 May 2011, the plaintiff wrote a letter addressed to the “General Manager, Racing NSW” which read:

By email of 13 May 2011 Keith Bulloch (who, as the General Manager- Regulatory, chaired the Licensing Committee) reported to Mr V’landys on the plaintiff’s letter, alleging that it contained “offensive and insulting comments”. After setting out the text of the plaintiff’s letter, Mr Bulloch said:

Mr V’landys accepted Mr Bulloch’s suggestion and, by return email, sub-delegated his authority from the Board to the Licensing Committee to issue a show cause notice, conduct a hearing and make a recommendation to him following the hearing.

By letter dated 16 May 2011 Mr Bulloch wrote to the plaintiff (the First Show Cause Notice) in accordance with the draft letter he had sent in the email of 13 May 2011 to Mr V’landys. The letter began with the statement that Racing NSW, as the regulator of thoroughbred racing in NSW, was duty bound to act in the interests of the industry as a whole. He referred to AR 7, LR 51 and s 14AA of the Thoroughbred Racing Act. He informed the plaintiff that he was required to attend at a hearing on 31 May 2011 to show cause why his trainer’s licence ought not be suspended or revoked on the basis that he was not a fit and proper person to be licensed as a trainer. A typescript of the substantive part of the plaintiff’s letter of 10 May 2011 was reproduced in the First Show Cause Notice. Mr Bulloch set out the plaintiff’s rights to make submissions; how such submissions could be made; and his right to legal representation.

The notice continued:

The First Show Cause Notice also contained the following paragraphs:

On 17 May 2011 Mr Pringle, Chairman of Stewards, handed the First Show Cause Notice to the plaintiff. The plaintiff read the notice and confirmed that he understood the contents. He told Mr Pringle that he would probably not attend the hearing; that he “is not sure whether he will undertake legal advice”; and that he would write a further letter saying that he had received the notice and indicating what his intentions were.

On 19 May 2011, the plaintiff wrote to Mr Bulloch and Gary Rudge (Licensing Supervisor of Racing NSW), relevantly, in the following terms:

On Monday 23 May 2011 the plaintiff drove to Grafton Bridge, which is about 20kms from his property, and stationed himself at the southern end of the bridge for a period of about two hours next to a large sign which read:

It appears that someone took a photograph of the plaintiff on the bridge on 23 May 2011 and sent it by email to Racing NSW. Mr Nicholson, Chief Racing Inspector, contacted the police. By email sent at 5.11pm on 23 May 2011, Mr Nicholson subsequently made the following report to Mr Bulloch, which was copied to Mr V’landys and to Pete Sweney, Racing NSW’s General Counsel:

On 23 May 2011 by email sent at 4.15pm Mr Bulloch sent a draft delegation to Mr V’landys so that Mr V’landys could sub-delegate his authority to the Licensing Committee to amend the First Show Cause Notice to add any subsequent behaviour of the plaintiff. Mr V’landys responded by email headed “Re: J Golden – elevating matters with poor behaviour” at 6.36pm that evening, sending the sub-delegation to Mr Bulloch (in a form identical to that proposed by Mr Bulloch). The email concluded:

On Tuesday 24 May 2011 the local paper, The Daily Examiner, contained a story on page 5 concerning the plaintiff’s protest on the bridge. A photograph of the plaintiff holding his (clearly legible) sign was also published. The journalist reported:

By email sent at 8.31am on 24 May 2011 Mr Bulloch sent an email to Ken Brown and Arthur Inglis, in which Mr V’landys was copied. Mr Bulloch recounted the plaintiff’s conduct on the bridge and the fact that it had been reported in the Grafton Examiner. Mr Bulloch said in the email:

After recounting the background to the incident Mr Bulloch wrote:

On Tuesday 24 May and Wednesday 25 May 2011 the plaintiff again drove to Grafton Bridge and displayed the same sign for about two hours on each day.

By letter of 24 May 2011 Mr Bulloch wrote to the plaintiff and referred to the First Show Cause Notice; the plaintiff’s letter of 19 May 2011; and a copy of a photograph of the plaintiff standing next to Grafton Bridge holding a placard. Mr Bulloch informed the plaintiff that the show cause hearing scheduled for 31 May 2011 had been amended to include the insulting comments in the plaintiff’s letter of 19 May 2011 and the placard displayed on the Grafton Bridge on 23 May 2011. The plaintiff was invited to show cause why his trainer’s licence ought not be suspended or revoked on the basis that he was not a fit and proper person and why he ought not be warned off all racecourses within the control of Racing NSW on the basis that his presence was not desirable. Once again, he was invited to make submissions and appear.

On 24 May 2011 at 4.40pm Mr Bulloch sent an email to Greg Rudolph (Deputy Chairman (Racing) in Racing NSW’s Stipendiary Stewards Department), Mr Sweney and Maurice Logue (a member of Racing NSW’s management team), which was copied to Mr Rudge, which said:

On 30 May 2011 Mr Bulloch sent an email to Mr Pringle which was copied to Mr Rudge, Mr Rudolph, Mr Sweney and Mr Logue, in which he raised his concern that there had been no response to the Amended Show Cause Notice. Mr Bulloch asked Mr Pringle to visit the plaintiff’s property to see if he had received it. Mr Pringle reported by email to Mr Bulloch sent later that day that he had visited the plaintiff’s property but the gate was padlocked and he could not see any sign of anyone being there. He confirmed that he had made numerous calls to his house but there had been no response.

On Monday 30 May 2011, the plaintiff held two placards outside the office of the Commonwealth Member of Parliament Janelle Saffin in Lismore. One read:

The other read:

There is no evidence that the plaintiff’s further conduct came to the attention of the Licensing Committee at, or prior to, the Show Cause Hearing on 31 May 2011.

The Licensing Committee, constituted by Mr Rudolph, Mr Sweney and Mr Logue, conducted the First Show Cause Hearing on 31 May 2011. The plaintiff did not attend.

Following the hearing, the Licensing Committee informed Mr V’landys:

The report of the First Show Cause Hearing was contained in a memorandum dated 6 June 2011 from the Licensing Committee to Mr V’landys. It made provision at the end of the document for Mr V’landys to agree or disagree with the recommendations. The document recorded that Mr V’landys accepted the recommendations by signing the memorandum.

On Tuesday, 7 June 2011, a local paper, The Northern Star, published a story with the headline, “Trainer’s protest over equine flu payments”, which was accompanied by a photograph of the plaintiff outside Ms Saffin’s electorate office, beside the same sign as he had displayed on Grafton Bridge the previous week.

As referred to above, Mr V’landys accepted the recommendations of the Licensing Committee. By letter dated 8 June 2011, he informed the plaintiff of the recommendations and the decision to revoke his trainer’s licence for six months (the First Determination). The letter concluded:

The plaintiff’s evidence was that when he received the notice revoking his horse trainer’s licence, he was very ill with yet-to-be diagnosed Graves’ disease. I am not satisfied that any indisposition from which he was suffering at the time was such as to compromise his capacity to lodge an appeal by sending a written notice. He seems to have been capable of sitting or standing beside large placards in prominent locations in the open air for hours at a stretch and writing letters in May and June 2011.

Moreover, in his cross-examination, he gave as a reason for not appealing that he was still waiting for a response from Allan Brown, the Chairman of the Board. This was the same letter to which he referred in his letter of 18 June 2011 (referred to below). That he gave this reason is a powerful indication that, although he may have been in relatively poor health at the time, his health was not a material factor in his decision not to appeal during the seven-day period allowed.

On the same day, 8 June 2011, Mr V’landys wrote a further letter to the plaintiff about his further conduct in displaying the two placards outside Ms Saffin’s electorate office. He invited him to make submissions, noted the “extreme importance” of the matter and warned the plaintiff that if he did not appear the Licensing Committee would proceed in his absence.

The defendants conceded that, at some time on 8 June 2011, they instructed Kennedys, solicitors, concerning the plaintiff’s conduct. Patrick George, a senior partner of that firm, drafted three letters which were addressed to the plaintiff; and the editors of The Northern Star and Coolum News respectively. They were in similar terms. The draft letter to the plaintiff was in the following terms:

By email sent at 3.43pm on 10 June 2011 Mr Sweney sent the three draft letters of demand to Mr V’landys for his approval. I infer from the fact that the plaintiff received the letter that Mr V’landys had approved of its contents and had given instructions that at least the letter to the plaintiff be sent.

On 16 June 2011 the 8 June 2011 Show Cause Notice was served on the plaintiff by Tim Saladine, the Deputy Chairman of Stewards. The plaintiff told Mr Saladine that he would not attend any inquiry held at the offices of Racing NSW.

At 9.27am on 16 June 2011 Mr Bulloch sent an email to Mr Sweney attaching “the summary of the Joe Golden matter that is in my monthly Board report”. The report referred to the various notices and the First Show Cause Hearing and the First Determination. There was no mention of the letter from Kennedys to the plaintiff.

The plaintiff responded to the 8 June 2011 Show Cause Notice by a letter dated 18 June 2011 to the Licensing Committee of Racing NSW in the following terms:

I infer from the contents of the letter set out above that Kennedys sent the letter to the plaintiff, a draft of which is set out above.

The Second Show Cause Hearing took place on 24 June 2011. The Licensing Committee was constituted by Mr Bulloch, Mr Sweney and Mr Rudge. Mr Nicholson was also present. The plaintiff did not attend. At the conclusion of the hearing, the transcript recorded the following decision of the Licensing Committee:

The Licensing Committee reported its decision to Mr V’landys in a memorandum dated 24 June 2011. It recorded that it was not satisfied to the requisite standard that the plaintiff had shown cause why he should not be warned off racecourses within the control of Racing NSW. The memorandum concluded:

The memorandum made provision for Mr V’landys to agree or disagree with the recommendation. He signed the memorandum to signify his acceptance of the recommendation.

By letter dated 24 June 2011 Mr V’landys wrote to the plaintiff to inform him of the recommendation of the Licensing Committee, which he had adopted (the Second Determination). He confirmed that the decision was a decision of Racing NSW and informed him of his rights of appeal to the Tribunal and that an appeal is made by lodging a written notice within seven days of the date of notification of the decision.

By letter dated 4 July 2011, Kennedys wrote to the plaintiff in the following terms:

On 13 January 2012 the plaintiff wrote to Racing NSW asking for an extension of time to appeal to the Tribunal against the revocation of his trainer’s licence and against the warning off. Racing NSW forwarded the letter to the Tribunal. The Tribunal called for submissions on whether it had jurisdiction to hear an appeal that was lodged out of time.

The plaintiff wrote to Racing NSW by letter dated 27 February 2012 seeking “an unbiased decision in my appeal”. He described himself as a “victimised whistle blower” who was being “punished” at the hands of an “incompetent and corrupt CEO”. He did not address whether the Tribunal had power to extend time within which to lodge an appeal.

By submission dated 5 March 2012 addressed to the Tribunal, Mr Sweney (on behalf of Racing NSW) submitted that the letter of 13 January 2012 did not constitute a “written notice of appeal” for the purposes of cl 6(1) of the RAT Regulations as it was out of time.

On 2 April 2012 the plaintiff forwarded to the Tribunal a detailed 15-page written submission in support of his application for an extension of time. He referred to his health at the relevant time and attached a doctor’s report referring to a thyroid scan indicative of Graves’ disease.

On 7 May 2012 the Tribunal wrote to the plaintiff enclosing its determination of his application to extend time made on 27 April 2012. The Tribunal’s conclusion appears from the final paragraphs of its reasons:

The plaintiff contended that both determinations are invalid on six grounds: actual bias; apprehended bias; improper purpose; irrelevant considerations; bad faith; and unreasonableness and serious illogicality. These bases will be considered in turn.

The plaintiff, in his Second Further Amended Statement of Claim, set out the particulars relied on in support both of the allegation of bias, or, alternatively, apprehended bias:

No allegation is made that the Licensing Committee was either actually biased or that any matter associated with the Licensing Committee gave rise to a reasonable apprehension of bias. Nor was it alleged that Mr V’landys had in any way interfered with the Licensing Committee’s process or deliberations.

The narrative above indicates that it was Mr Bulloch who initiated the proposals that a show cause letter be sent to the plaintiff arising from his conduct on Grafton Bridge; and that Mr V’landys sub-delegate his power from the Board to the Licensing Committee to issue a show cause notice and conduct a show cause hearing and make a recommendation to him. Mr Bulloch’s initiative was the genesis of the First Determination. Mr V’landys merely agreed to the sub-delegation; adopted Mr Bulloch’s proposed wording; accepted the recommendation when it came to him after the hearing; signed the memorandum without comment; and signed the letter that constituted the First Determination.

The Second Determination was made in similar manner to the first in that Mr V’landys accepted the advice of Mr Bulloch as to procedure, including the wording of the sub-delegation; accepted the recommendation of the Licensing Committee; signed the memorandum without comment; and signed the letter that constituted the Second Determination.

Nonetheless the plaintiff submitted that, because Mr V’landys retained a discretion to accept or reject or amend the Licensing Committee’s recommendations, the conclusion was still available that his decision was affected by actual or apprehended bias, even though he did no more than accept the recommendations of the (admittedly unbiased) Licensing Committee. The plaintiff contended (in his written submissions):

The defendants, however, relied on the fairness of the process and submitted that the process Mr V’landys and Racing NSW adopted and the recommendations it produced (which were accepted without amendment) was inconsistent with bias, whether actual or apprehended.

I consider the process adopted makes it inherently improbable that Mr V’landys was motivated by actual bias. The process he adopted, which was, in the circumstances of the present case, initiated by Mr Bulloch as Chair of the Licensing Committee, and the fact that any decision he made would be subject to an automatic right of appeal to the Tribunal pursuant to s 15(1)(d) of the RAT Act, was, in my view, inconsistent with actual bias. However, although the process was fair, it is nonetheless necessary to consider the other bases on which the plaintiff sought to establish actual bias since the fairness of the process, while indicative, is not determinative.

An allegation of actual bias is a serious one. It must be shown by cogent evidence that the decision-maker’s mind was not open to persuasion: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [71], [75] and [78] per Gleeson CJ and Gummow J. It must be “distinctly made and clearly proved”: at [69]. The test for actual bias is a subjective one: Michael Wilson and Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 at [33].

In Minister for Immigration v Jia Legeng, Gleeson CJ and Gummow J described as “orthodox” the test for actual bias applied by French J at first instance, which they summarised at [36]-[37] in the following terms:

As the English Court of Appeal held in Flaherty v National Greyhound Racing Club Ltd [2005] EWCA 1117 at [28]:

The plaintiff’s allegation of actual bias appears to be based, not on prejudgment (of which there is no evidence), but on interest. The plaintiff submitted that because of Mr V’landys concern for his reputation and his potential claim for damages for defamation against the plaintiff, he was actually biased against him when making the First and Second Determinations because he had an economic interest at stake.

As recorded above, the defendants conceded that Kennedys had first been instructed on 8 June 2011. This was the day on which the First Determination was made. The commencement of the process that led to the First Determination had pre-dated that day by about four weeks, since it was on 13 May 2011 that Mr Bulloch had suggested a sub-delegation to the Licensing Committee arising from the plaintiff’s letter of 10 May 2011.

Even assuming (against Mr V’landys) that he had given instructions that the Kennedys letter be sent before he made the First Determination (a matter which I do not consider to have been established on the balance of probabilities), I do not consider that any financial interest Mr V’landys might have had in the outcome of any defamation proceedings (and there is no evidence that there were any such proceedings), was such as to make him actually biased against the plaintiff.

The question of the effect of a judge’s financial interest in the outcome of litigation arose in Ebner v Official Trustee [2000] HCA 63; 205 CLR 337. In that case, the judge was the beneficiary of a trust which owned shares in a bank which, though not party to the litigation, had an interest in the outcome. The High Court found that the judge was not disqualified from hearing the matter. The applicant argued that if a judge has a direct pecuniary interest in the outcome of a case then the judge is automatically disqualified. The High Court rejected the test proposed and said at [58]:

Although this statement was made in the context of apprehended, rather than actual, bias, it is nonetheless useful to determine whether, in the present case, the circumstance that Mr V’landys had accused the plaintiff of defamation and demanded damages and reasonable legal costs meant that he had a financial interest in the making of the First Determination (on the assumption set out above) and the Second Determination such as to make him actually biased.

Mr V’landys had no financial interest in the First or Second Determinations, since both resulted in disciplinary action against the plaintiff which did not benefit Mr V’landys in any direct sense. Mr V’landys had an interest in protecting his own reputation. However, his interest in protecting his own reputation was closely allied with Racing NSW’s protection of its reputation and, in turn, their common interest in protecting the reputation of the horse racing industry in New South Wales. Although the Kennedys letter demanded money from the plaintiff (for damages and reasonable legal costs), it did not quantify any sum. The letter was directed to obtaining both an apology for past conduct and an undertaking from the plaintiff not to repeat the conduct.

The plaintiff postulated that Mr V’landys would bear him some personal animus as a result of the abuse and the alleged damage the plaintiff had caused to Mr V’landys’ reputation and that this would incline Mr V’landys to want to punish the plaintiff by revoking his licence and warning him off. This conjecture falls far short of proof. The plaintiff bears the onus of establishing actual bias; it is not for Mr V’landys to positively demonstrate its absence.

I reject the suggestion that Mr V’landys was actually biased against the plaintiff because of his interest in protecting his reputation. A person in Mr V’landys position would expect criticism from the public. Wherever money is concerned, particularly where gains and losses may seem to be a matter of chance, emotions can run high. Criticisms of institutions, such as Racing NSW, are frequently directed at the public face of the institution, and often at the person who is seen to be leading the institution. Mr V’landys, as the Chief Executive of Racing NSW, occupied such a position. As such, it could be expected that any complaint about Racing NSW would, or might, involve a complaint about him and his administration of Racing NSW. Any individual, such as the plaintiff, who had a grievance against Racing NSW, might decide to personalise the grievance (rightly or wrongly) by criticising Mr V’landys.

Moreover, as Mr V’landys’ delegated authority from the Board was so extensive, he could justifiably be held responsible for all manner of matters (whether directly involving him or not) including: the administration of CHAPS; a ruling as to how frequently a horse could be raced; whether a scratching fee should be refunded; whether his power ought be sub-delegated to the Licensing Committee; whether a licence ought be suspended or revoked and whether someone ought be warned off; and (presumably) whether someone who had been warned off should have the warning off annulled.

Mr V’landys was subjected to a degree of abuse from the plaintiff. The objective reason for the action taken by Racing NSW was that the plaintiff’s conduct tended to be detrimental to horse racing because it involved the public denigration of Racing NSW and its Chief Executive, who happened at the time to be Mr V’landys, in language which was objectively offensive and crude and which was presented in a manner which was conducive neither to analysis nor discussion.

In these circumstances, if criticism of Racing NSW and of Mr V’landys were to lead to Mr V’landys having to step aside, the system would soon reach a stage whereby individual parties could effectively remove Mr V’landys from the decision-making process entirely: cf. Ebner v Official Trustee at [20]. Although the plaintiff placed great significance on the Kennedys letter as placing the present case in a special category, I do not regard it as having that effect. Nor do I regard the circumstance that the Board does not appear to have been informed of the Kennedys letter as a material non-disclosure which leads to an inference of bias. In the circumstances of the present case, the Kennedys letter was an incidental matter. There is no suggestion, in any event, that Mr V’landys would have had to pay Kennedys himself for legal costs, since Racing NSW was also responsible for retaining them.

This is not to suggest that the plaintiff was not entitled in the exercise of his right to free speech to express his opinions about Racing NSW or Mr V’landys in public, but rather to record that I am satisfied that there was a basis for the action taken by Mr V’landys and Racing NSW, which does not, in my view, indicate actual bias. The plaintiff has failed to establish actual bias.

In [62] of the pleading, the plaintiff alleged:

The relevant test for apprehended bias was as stated in Re Refugee Tribunal; Ex Parte H [2001] HCA 28; 75 ALJR 982 at [28]:

The principle, as articulated in Ebner v Official Trustee at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ) is:

Although this is the principle, it is not appropriate to approach its application without reference to the statutory context set out above since this is, properly, the starting point: McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504 at [6] per Spigelman CJ. The hypothetical fair-minded observer is to be assumed to be aware of the actual circumstances of the case: Hot Holdings Pty Ltd v Creasy [2002] HCA 51; 210 CLR 438 at [68] and [76]. Thus, such a person would have been aware of the matters set out above as to the genesis of the show cause notices and hearings and how Mr V’landys’ power had come to be sub-delegated to the Licensing Committee.

Such an observer would also have been aware that, far from desisting from the conduct the subject of the First Show Cause Notice when he received it, the plaintiff persisted in the conduct as well as responding to the notice in crude and insulting language, apparently designed to offend and disgust the recipients. The observer would also have known that the plaintiff chose not to make submissions to the Licensing Committee at either of the show cause hearings.

The observer would also have been aware that Mr V’landys (either personally or through an agent) had, at some time on 8 June 2011, consulted solicitors regarding the plaintiff’s conduct and that by 10 June 2011 (after the First Determination but prior to the second) he had instructed them to draft a letter to the plaintiff regarding his statements to the press and his conduct in displaying the placard. I infer that the draft letter was seen by Mr V’landys on 10 June 2011, at which time he instructed his solicitor to send it.

The so-called “two mights” test from [6] in Ebner v Official Trustee (set out above) is the first part of the inquiry into the question of apprehension of bias. The second part appears from the following extract from at [8]:

I am not persuaded that the plaintiff has been able to articulate a “logical connection” between, on the one hand, the circumstances that Mr V’landys’ title appeared on the signs and that he had alleged that the plaintiff had defamed him; and, on the other, the plaintiff’s feared deviation from Mr V’landys’ deciding whether to accept the recommendations of the Licensing Committee and make the First and Second Determinations.

Neither the allegation of actual bias, nor of apprehended bias has been made out.

The plaintiff relied on the following in support of his submission that Mr V’landys made the First and Second Determinations for an improper purpose:

An improper purpose will not lightly be inferred. The inference of improper purpose will only be drawn if the evidence cannot be reconciled with the proper exercise of the power: Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649 at 672. In my view, the plaintiff’s submissions do not take adequate account of the functions and powers of Racing NSW. The functions of Racing NSW include ensuring that those licensed in various capacities in the horse racing industry (whether as jockeys, trainers, and so on) are “fit and proper persons” having regard to “the need to protect the public interest as it relates to the horse racing industry”: s 14AA(1) of the Thoroughbred Racing Act. Protection of the public interest in the horse racing industry includes protection of the reputation of the industry.

I accept Mr V’landys’ submission that sporting and professional associations tend to have rules, such as AR 175, which empower the governing body to penalise certain conduct by participants. The purpose of these rules is to prevent participants in the sport from insulting those who administer the sport in general or who play a particular role such as umpiring a particular race or match since this conduct, if allowed to go unchecked, is said to bring the particular sport into disrepute. This rule was not relied on by Mr V’landys in support of the First or Second Determination but serves to provide an illustration of the general extent of the power under s 13 with respect to the horse racing industry.

The First and Second Determinations can be seen to arise from a concern that the plaintiff’s public statements and the manner of their expression and publication was such as would tend to diminish the reputation of the horse racing industry. There is nothing in either of the determinations which would suggest that they were intended to achieve any purpose other than to get the plaintiff to stop making public outbursts of that nature and writing abusive correspondence to Racing NSW and, perhaps, to stop other persons who harbour a grievance against Racing NSW from believing that they could air their own views in a similar fashion with impunity.

Thus, no inference that Mr V’landys acted with an improper purpose can be drawn about his subjective intention from the determinations themselves, since they are consistent with a proper exercise of the power.

Mr V’landys was not required to give reasons beyond what appeared in the determinations. There is no evidence otherwise of Mr V’landys’ actual subjective intention and no proper basis for any inference as to its content: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; 241 CLR 594 at [66]-[68] per Gummow J. Accordingly, the ground of improper purpose has not been made out.

The same matters have been raised by the plaintiff in support of this contention as were raised in the context of improper purpose. The plaintiff’s conduct was the issue: it was the matter that had a tendency to bring the industry of horse racing into disrepute. Whether he stood on Grafton Bridge or on the streets of the neighbouring town was not to the point: the point was that his utterances were such as to have a tendency to bring the horse racing industry into disrepute. He did not have to be on a racecourse to bring about that result.

This ground has not been made out.

The plaintiff submitted that in making the First and Second Determinations Mr V’landys sought to punish the plaintiff for criticising him. He accepted that he was required to prove Mr V’landys’ state of mind: SBBS v Minister for Immigration and Multicultural Affairs (2002) 194 ALR 79 at [43]. The plaintiff contended that Mr V’landys’ decision not to give evidence allows me to draw an inference that nothing he could have said would have assisted him. He contended that I ought infer that the subjective motivations of Mr V’landys were, in substance, vindictive.

The seriousness of an allegation of bad faith is not in question. In SCAS v Minister for Immigration and Multicultural Affairs [2002] FCAFC 397 at [19] the Court (Heerey, Moore and Kiefel JJ) said:

I do not regard the allegation of bad faith as justified by the material. It ought not to have been made. No relevant inference arises from the fact that Mr V’landys did not give evidence since no foundation for the allegation has been made. I do not consider there to be any basis for the contention that Mr V’landys did not make an honest and genuine attempt in good faith to make the correct and preferable decisions when he made the First and Second Determinations, on the basis of the consideration of the Licensing Committee based on the memoranda and recommendations that had been made to him.

The plaintiff’s written submission on this ground was:

As with several of the other grounds, the plaintiff’s submissions depend on acceptance of the proposition that what he was doing in standing on the Grafton Bridge and displaying a placard there and in the town centre had nothing to do with horse racing. For the reasons already given, I do not accept this proposition. There was, in my view, a rational connection between his conduct and the reputation of the horse racing industry.

As was said in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ):

In the present case, the justification for the First and Second Determinations is both evident and intelligible from the evidence and from the terms in which they were communicated to the plaintiff. When deciding how to stop the plaintiff’s conduct, Racing NSW had a range of methods that could potentially be used: revoking or suspending his licence or warning him off. The method of threatening revocation or suspension of his licence, which was the first method tried (as reflected in the First Show Cause Notice) did not produce the desired effect. To the contrary, the plaintiff escalated his conduct and became even more abusive. This left the threat of warning off. When the plaintiff refused to make submissions, much less to apologise or express any contrition, the Second Determination was made, with the consequence that he was warned off.

I note that the submissions made on behalf of Mr V’landys included a submission that the warning off power was not used, as a matter of objective inference, as a deterrent to Mr V’landys, designed to chasten him into modifying his behaviour for the better, but rather to protect the race-going public from being confronted by his placards and belligerence on race day. Notwithstanding this submission, I consider the inference to be available that one purpose, which was a legitimate one, of warning off the plaintiff, was to get him to modify his conduct so that whatever criticisms he might make would be made in a more civilised way, which did not involve offensive denigration of Racing NSW or Mr V’landys. I accept that another, proper, purpose, was to protect the public from his crude remonstrance on race day.

It is important to note that the Second Determination did not have the effect that the plaintiff was warned off racecourses (with all that such a penalty entailed) for the rest of his natural life. What it meant was that, in order to have the warning off lifted, the plaintiff would have to apply to Racing NSW. It appears from the material that there is at least some prospect of such an order being lifted if the person subjected to the warning off expresses remorse, contrition and indicates that he or she will not behave in a similar way again. Indeed, Mr V’landys’ defence specifically alleges that the plaintiff “could apply to Racing NSW, at any time, to lift the warning off order”.

The plaintiff confirmed in the hearing that he had never made any attempt to have the warning off lifted by Racing NSW and did not propose to. In this respect, as in others, he has proved to be the author of his own predicament.

As none of the grounds of challenge has been made out, it is not necessary to consider the question of discretion. However, for completeness, I propose to give brief reasons for my view that, had any challenge been made out, I would not have exercised my discretion to grant relief.

The right of appeal to the Tribunal was readily available to the plaintiff. He was amply notified of the right and of the time limit. He was not relevantly indisposed. He was able to write documents throughout the period and, had he been minded to, such documents could have included a notice of appeal to the Tribunal. He would have, in that event, had a fresh hearing on the merits before a Tribunal whose members did not include Mr V’landys. The Tribunal would have been obliged to consider whether any penalty was warranted, and, if so, what penalty.

For the reasons given above, the plaintiff chose, through some mistaken view of his entitlement to receive a letter from the Chairman of the Board, not to activate his rights of appeal. Although the availability of a statutory appeal is no bar to relief on judicial review, it is a powerful factor against the grant of such relief: Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 508-509 per Kirby P.

It appears that it was only in early 2012 when the plaintiff learned of the true extent of the warning off that he saw fit to challenge the decision. He may have been under the misapprehension previously that he was simply warned off racecourses, rather than that he was prohibited from all manner of activities associated with horse racing, including betting, by reason of the operation of AR 182, 182A and 183.

Nonetheless the Tribunal did not simply refuse to consider his application although it was out of time. Although it accepted that it did not have jurisdiction to hear his appeal it addressed the merits of his application for extension and declined to grant it.

Further, the time for which the plaintiff’s licence was revoked has long passed. The current impediment to his activities is the warning off, which remains in place at least potentially because he has taken no step to ask Racing NSW that it be lifted. His remedy is in his own hands and yet he has steadfastly refused to lift a finger to grasp it. In these circumstances I am not persuaded that it would be appropriate for this Court to exercise its discretion in his favour.

For the reasons given above the tort of misfeasance in public office must fail as no misfeasance has been established. As Mr V’landys did not give evidence, there is no basis other than in the documents from which his intention could be established. Thus, I enjoy no advantage as trial judge in making a determination of his intention. Nonetheless as part of my obligation to make all relevant findings, I propose to address the elements of the tort.

The elements of the tort of misfeasance in public office are:

Of these elements, the plaintiff has established only the first. Element (2) has not been established for the reasons given above by reference to the grounds of challenge.

The plaintiff relied on the following in support of his submission that he had established that Mr V’landys had the requisite mental element for the tort of misfeasance in public office:

As to (a), I do not regard the Kennedys’ letter as placing Mr V’landys in a position of conflict: his interests and those of Racing NSW were relevantly the same. They both wanted the plaintiff to stop criticising them because they regarded the abusive form of his public statements to be inimical to the public reputation of the horse racing industry in New South Wales; and they both wanted to use such legitimate means at their disposal to achieve this aim. Moreover, the reason Mr V’landys was being criticised was because he was the Chief Executive of Racing NSW.

The matters in (b) and (c) are incontrovertible but do not take the matter further. As to (d), I do not regard the absence of a reference to the Kennedys letter in a report to the Board as suspicious or as creating any adverse inference. As to (e), it does not follow from the circumstance that Mr Rudge and Mr Bulloch saw fit to step aside, that they were required to do so, or that their decision to step aside meant that it was wrong for Mr V’landys not to step aside. I regard (e) as neutral. As to (f), it can be accepted that, if one wants to earn a living as a horse trainer, revocation of one’s licence deprives one of an opportunity of endeavouring to do so. However there is no evidence that Mr V’landys knew of the plaintiff’s particular circumstances.

In summary, I am not satisfied that there is any basis to conclude that Mr V’landys, when he made either the First or the Second Determinations, had any of the mental elements referred to in (3)(a), (b) or (c) above.

The fourth element has not been established. The plaintiff submitted that horse racing was his life and his livelihood and that he would not have spent so much money on the property had he not expected to earn money from it. He referred to the winnings of his horses and his prospects of success, including that he would earn money training horses on his property.

The evidence, such as it was, showed that the plaintiff consistently made losses from horse racing. His tax returns showed that any income he received was exceeded by his expenses. I accept his evidence that a trainer is judged by results. The evidence reveals that, on many occasions (particularly from November 2010), the plaintiff’s horses finished last or second to last, despite occasional success at individual country races.

It is not necessary to cite the actual figures to establish the plaintiff’s financial position in the years prior to the First and Second Determinations, which was both parlous and precarious. The submission that he could have turned his losses into profits but for the First and Second Determinations appears, in all circumstances, unduly optimistic.

The plaintiff’s submission that he lost a chance (of training horses) which ought be regarded as being of some value is not enough. He had to show that the chance probably had an economic value to him. He has failed to do so.

Accordingly, the plaintiff has failed to make out his claim for damages for misfeasance in public office.

I accept the defendants’ submission that AR 197 applies as a matter of contract and, accordingly, the plaintiff is not entitled to make the claim for damages against either of the defendants since it falls within the description “by reason or in consequence of the imposition . . . of any penalty imposed or purporting to be imposed by the Rules”.

Mr V’landys, in any event, has a statutory immunity by reason of s 12(1) of the Thoroughbred Racing Act as I consider that he acted in good faith.

I make the following orders: