Greyhound Welfare and Integrity Commission v Grech

1. [1]

   On 17 May 2022, the Greyhound Welfare and Integrity Commission (“Commission”) refused the first respondent’s, Ms Donna Grech’s, application for registration as a greyhound racing industry participant, as an Owner/Trainer. Ms Grech appealed to the Racing Appeals Tribunal (“Tribunal”). On 19 September 2022, the Tribunal (Mr B D Amati), in an ex tempore decision, upheld Ms Grech’s appeal (“Decision”).

2. [2]

   By summons filed 26 October 2022, the Commission seeks judicial review of the Decision on 9 grounds.

Statutory framework

1. [3]

   An appeal to the Tribunal involves the review of the merits of the Commission’s original decision. The appeal is by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence available to the commission may be led (ss 15A and 16 of the Racing Appeals Tribunal Act 1983 (NSW)). The Tribunal has the same power to determine the appeal as the Commission had to make its decision under the Greyhound Racing Act 2017 (NSW) (“GRA”) (s 17A(b) Racing Appeals Tribunal Act).

2. [4]

   The GRA establishes a statutory regime for the regulation of greyhound racing. The GRA has six expressly stated objects (s 3A):

3. [5]

   A ‘greyhound racing industry participant’ is defined as including a person who owns, breeds, or keeps greyhounds; trains greyhounds; or handles greyhounds at a greyhound race or trial (s 3 GRA); and whether or not the person is employed on a full-time basis or whether they receive payment for the activity. That is, volunteers who participate in this way are also covered by the stipulations contained in GRA.

4. [6]

   Participation in the industry without registration under the GRA is prohibited (s 44 GRA). There are stiff maximum penalties (fine up to $220,000 for a corporation and $22,000 for an individual).

5. [7]

   Registration functions under GRA (Pt 5, Div 2 GRA) are vested in the Commission. The structure of the registration power comprises a general or governing provision (s 47 GRA) that applies to the whole of the Commission’s Pt 5 Div 2 powers, and specific provisions applying to individual classes of registration (ss 48-50 GRA). Specifically, s 49 confers the power for the registration of greyhound racing participants. The relevant parts of sections 47 and 49 are extracted:

Background

1. [8]

   The evidence before the Tribunal included a recording of a documentary aired on 15 February 2015 by the ABC’s Four Corners investigative journalism program entitled ‘Making a Killing’. The documentary sought to expose animal cruelty in greyhound racing, including the practice of live baiting. This is relevant as the footage included live baiting at a greyhound training facility owned by a Mr Zeke Kadir. Ms Grech assisted Mr Kadir at his property in the training and trialling of greyhounds. She is depicted in the footage, but she is not shown as being present, or involved, when live baiting was carried out. Live baiting is the practice of using “an animal as a lure or kill for the purpose of blooding greyhounds or in connection with the trialling, training or racing of any coursing dog” (see s 21(1)(d) Prevention of Cruelty to Animals Act 1979 (NSW) (“PCA”) and s 530 Crimes Act 1900 (NSW)). Misconduct of this kind is so seriously regarded for the purpose of GRA that if a court finds a person guilty of a live baiting offence his or her registration under GRA is “automatically cancelled” and he or she is “permanently disqualified from being registered” under GRA “in any capacity” (s 40 GRA). This is effectively a life ban. Clearly, a person found guilty could never be adjudged “fit and proper” to be registered as a participant under s 49 GRA. A finding of guilt of such an offence could not but sorely offend the public interest as it relates to the greyhound racing industry.

2. [9]

   In or around the middle of 2015, Ms Grech was charged with animal cruelty offences contrary to s 530 Crimes Act and s 21(1)(d) PCA. The prosecution did not proceed to finality because the charges were withdrawn on 27 February 2020. For the purpose of the criminal law, I interpolate, this is regarded as a favourable result for Ms Grech. To state the obvious, this is not a finding of guilt of the offence by a court.

3. [10]

   Mr Kadir was convicted for his live baiting offending and sentenced to 2 years and 6 months imprisonment, to be served in the community by way of intensive correction order (Decision, [14]). This may be particularly significant because the Commission submits, “Ms Grech’s involvement with Mr Kadir, and her knowledge of live baiting, are central to these proceedings” (PWS, [5]). It may be equally significant that the Commission does not, and has never, contended that Ms Grech actively participated in any live baiting practice (PWS, [32]). There was an issue before the Tribunal about her state of knowledge of activities being carried on at Mr Kadir’s premises while she was present.

4. [11]

   On 24 March 2020, Ms Grech applied for registration as a greyhound racing participant, as an Owner/Trainer. On 3 April 2020 her application was successful, and the Commission so registered her.

5. [12]

   On 18 September 2020, Ms Grech was “warned off” for 9 weeks for breaches of the Greyhound Racing Rules (as at 12 November 2018). This related to a prior incident of her handling a greyhound at an event without registration or approval.

6. [13]

   On 19 January 2021, Ms Grech made a further application for registration as an Owner/Trainer, which was granted on 2 February 2021. On 25 February 2021, her registration was suspended pending an investigation. The Commission was investigating whether Ms Grech made false statements by failing to disclose the withdrawn charges in her applications for registration dated 24 March 2020 and 19 January 2021. The outcome of the investigation was her suspension for nine months beginning on 28 July 2021.

7. [14]

   The Commission’s refusal of Ms Grech’s further application for registration dated 22 November 2021, was the subject of her appeal to the Tribunal which resulted in the Decision favourable to her which is now under judicial review.

The Decision

1. [15]

   To understand the grounds for review it is useful to begin by detailing some key aspects of the Decision. The Tribunal explained its understanding of the registration power as follows ([4]-[6]):

2. [16]

   The Tribunal detailed Ms Grech’s relationship with Mr Kadir. She sought assistance and guidance from him in training greyhounds (Decision, [13]). She attended his property for that purpose with some frequency. The Tribunal referred to Mr Kadir’s conviction in 2020 for his live baiting offending. The Tribunal also extracted part of an interview with Ms Grech and an RSPCA inspector (Mr Turner):

3. [17]

   The Tribunal referred to Ms Grech’s friendship with Mr Kadir which was formed because of the relationship Ms Grech formed with Mr Kadir’s wife. The Tribunal said, “on the sworn evidence of [Ms Grech], she was asked to continue to help Mr Kadir by his wife before she died” (Decision, [23]).

4. [18]

   The Tribunal found that the allegation of live baiting against Ms Grech did not extend to ‘participation’ and that that was not the allegation against her for registration purposes (Decision, [24]). The Tribunal then asked what reputationally should follow from the fact of live baiting while she was at the premise. The Tribunal stated “continued association with a person imprisoned [by way of ICO] … for live baiting is of deep concern to the Tribunal … “ (Decision, [25]).

5. [19]

   The Tribunal considered Ms Grech’s prior conduct issues including relating to disclosure on her application forms for registration and handling a greyhound unregistered at a trial. The Tribunal categorised the issues as follows (Decision, [35]):

6. [20]

   The Tribunal was concerned with Ms Grech’s continued association with Mr Kadir from the charges in 2015 up till 2020 when he was sentenced which continued until early 2022. The continued association was said to “scream out a lack of understanding of reputational conduct and reputational need of the industry” (Decision, [37]-[39]).

7. [21]

   The Tribunal also found that the appellant struggled to understand key issues relevant in the industry. Nor did she understand the severity of Mr Kadir’s offending and that he was serving imprisonment by way of an intensive correction order (Decision, [42]).

8. [22]

   The Tribunal considered in some respects her association with Mr Kadir was in her favour because of his ill-health and her undertaking to his wife to care for him when she passed away. My understanding of this finding is that the Tribunal regarded Ms Grech as a good-hearted, well-meaning individual which was a positive aspect of her character. The Tribunal said that to require prioritisation of the reputation of the industry over those personal matters would have been harsh (Decision, [43]-[44]).

9. [23]

   The Tribunal went on and considered Ms Grech’s long service in the industry (ie “virtually all her life”) and her love for greyhounds (Decision, [45]). Consideration was given to the facilities available to her, through her son, and her applying herself to learn the greyhound racing rules. Taken as a whole, the Tribunal was satisfied the applicant would comply with the rules in future (Decision [52]). The Tribunal was also satisfied as to her character (Decision [53]). In relation to the live baiting issue, the Tribunal decided it was “in her favour” (Decision [56]). I understand this finding to mean that the Tribunal accepted Ms Grech’s evidence that she had no involvement in or any knowledge of Mr Kadir’s offending in that regard.

10. [24]

    As for the allegation regarding her lack of candour in completing her application forms, the Tribunal said (Decision, [58]):

11. [25]

    In considering the issues collectively, the Tribunal said ([62]-[63]):

12. [26]

    Accordingly, the Tribunal was satisfied that “as of today” Ms Grech is a fit and proper person for the purpose of s 47 of the GRA (Decision [64]). While the Tribunal was focusing on s 47(1), “reputation” is an aspect of the interests of the industry the subject of the s 49(3) power to refuse registration. The Tribunal had also referred to the reputation of the greyhound industry in relation to her association with Mr Kadir ([25]).

Application for judicial review

1. [27]

   The plaintiff propounds 9 grounds of review, in summary they are:

2. [28]

   The Commission pleads that ground 1 is an error of law amounting to jurisdictional error. But, as can be seen, with minor exceptions, the Commission does not specify the nature of the asserted error sufficiently to identify whether the Court’s supervisory jurisdiction has been properly engaged. However, while the Commission does not identify grounds 3-9 as jurisdictional errors, the arguments advanced were mainly predicated on the principles relating to legal unreasonableness which depending on the nature of the decision impugned may support a claim of jurisdictional error.

Grounds 1 and 2

1. [29]

   The Commission’s first and second grounds of review are related. By ground 1, the Commission claims the Decision is tainted by a jurisdictional error of law because when considering whether Ms Grech was a fit and proper person for the purpose of s 47 GRA, the Tribunal failed to consider whether her registration was in the best interests of the greyhound racing industry in accordance with s 49(3). By ground 2, the Commission says that the Tribunal by referring to s 49(3) as “simply surplusage” to the fit and proper test in s 47 fell into error of law.

2. [30]

   The Commission submits that Pt 5 Div 2 ought to be construed as prescribing a two-stage approach to registration. First, the application of s 47, that the individual must be a fit and proper person to be registered having regard to the protection of the public interest as it relates to the greyhound racing industry. Second, by s 49(3), the Commission has a residual discretion to refuse to register a person if it forms the opinion that refusal is in the best interests of the greyhound racing industry (Plaintiff’s Written Submissions (PWS), [17]).

3. [31]

   The Commission’s submission continues that the respective inquiries of ss 47 and 49 are “separate and distinct” (PWS, [19]). The point made is that an applicant’s satisfaction of s 47 does not guarantee registration, s 49 confers a wide discretion to conclude that the individual may be fit and proper but the best interests of the greyhound racing industry require refusal of registration (PWS, [21]).

4. [32]

   In written submissions prepared by Mr David Barry Wilson, solicitor, the first defendant argued that these grounds are only available to the extent the provision in question is a mandatory considerations as explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986)162 CLR 24: [1986] HCA 40. In that regard, Ms Grech submitted that s 47 is a mandatory consideration but s 49 is not (First Defendant’s Written Submissions (DWS), [30]). Ms Grech therefore contends that the claim of jurisdictional error by the Tribunal not considering s 49(3) should not be accepted.

5. [33]

   In reply, the Commission submitted the argument that there is significant overlap between ss 47(1) and 49(3) should be rejected. The Commission added some content to how the best interest of the greyhound racing industry may differ from the fit and proper person test, with the former being concerned with integrity of the industry and the ongoing conduct of the sport (Plaintiff’s Reply Submissions (PRS), [12]).

6. [34]

   In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, McHugh, Gummow, Kirby and Hayne JJ expressed the process of statutory construction as (at [69]):

7. [35]

   In CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384; [1997] HCA 2, Brennan CJ, Dawson, Toohey and Gummow JJ said (at 408):

8. [36]

   In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, Hayne, Heydon, Crennan and Kiefel JJ, while reiterating these principles, emphasised the paramountcy of the text of the statute (at [47]):

9. [37]

   It is logical to begin with ground 2, whether s 49(3) of the GRA is surplusage? If the answer is no, the Tribunal has misconstrued the statute conferring the registration power.

10. [38]

    The starting point is the presumption “that words are used in statute for a reason; they should be given their meaning and effect” (Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 [39] (French CJ)). This reflects Griffith CJ’s endorsement in Commonwealth v Baume (1905) 2 CLR 405 at 414 of R v Berchet (1688) 1 Show KB 106 which provided:

11. [39]

    Turning to the statute, ss 47(1) and 49(3) are framed differently. First, the former is primarily a question of whether a person is fit and proper to be registered. This requirement is the fundamental precondition which must be satisfied before the Commission’s power to register a person conferred by s 49(1) may be exercised. Moreover, the precondition applies across the board in the exercise of the Commission’s registration function (ie for each of the varying classes of registration). In a clearly non-exclusive function, application of the fit and proper test includes consideration of the specified “public interest” criterion within the parenthesis in s 47(1). In relation to the use of the parenthesis themselves, as opposed to the content of those parenthesis, the punctuation does not apparently form part of the statute but would still be relevant context in construing s 47(1) (Interpretation Act 1987 (NSW), s 34(2)(a)).

12. [40]

    Second, as I have said more than once, the registration power is conferred by s 49(1). It is the central aspect of s 49.

13. [41]

    Third, s 49(3) is a discretion to refuse registration to a person who may otherwise be eligible (because he or she is a fit and proper person) “if [the Commission] is of the opinion that it would be in the best interests of the greyhound racing industry to do so”.

14. [42]

    Fourth, in my view, it would be wrong to consider “the need to protect the public interest as it relates to the greyhound racing industry” in s 47(1) as concerned with “the best interests of the greyhound racing industry”. Rather, it is a test concerned with whether a person is fit and proper for registration, as a necessary precondition to the exercise of the power to register. The public interest as it relates to the greyhound racing industry is the prism through which the composite question of fitness and propriety is to be considered. It is concerned with the broader community interest in an industry which is true to the objects stated s 3A GRA, particularly those concerned with integrity and the welfare of greyhounds. Section 49(3), where it is engaged, is concerned with industry’s best interests. The objects of GRA remain relevant, especially efficiency, sustainability and the self-interests of stakeholders and the industry as a whole. There is an obvious intersection of ss 47(1) and 49(3), but they are not the same. Section 47(1) looks into the industry from the point of view of the community; s 49(3) looks out from the point of view of the industry. It is difficult to see how the best interests of the industry could justify a refusal to register a fit and proper person on character grounds. That would involve obvious irrationality or illogicality.

15. [43]

    The aforegoing illustrates that ss 47(1) and 49(3) have different concerns. Section 47 is about fitness and propriety, which attaches importance to the protection of the public interest as it relates to the greyhound racing industry. On the other hand, s 49(3) is concerned with the “best interests of the greyhound racing industry.” As I have said, the provisions may overlap but they have different concerns.

16. [44]

    The Commission draws on the objects of the GRA (s 3A) as indicating the broader concerns encompassed by s 49(3). In my view, s 49(3) is not necessarily broader than s 47(1) but it is apparent that it has different work to do. Section 47(1) is a threshold question for registration, but satisfaction of that precondition does not automatically entitle a person to registration, as opposed to rendering him or her eligible. Section 49(3) is a residual discretion, which the Commission can exercise to refuse registration of an otherwise eligible person, if it is in the best interests of the greyhound racing industry to do so. That is to say, a person may be a fit and proper person, but it is not in the best interests of the greyhound racing industry that they be registered. Practical examples are conceivable, for example, if the registration of further trainers would be detrimental to the sustainability of the industry, or if the unavailability of appropriate facilities would impair the efficiency of the industry if the person was registered. I am also of the view that the industry has an interest in its own good reputation. As the Tribunal recognised, an ongoing association of an otherwise fit and proper person with a disgraced former participant may bring the industry into disrepute (Decision [25] & [63]).

17. [45]

    In my view, the above presents a construction that gives s 49(3) substantial work to do. Accordingly, s 49(3) is not “surplusage”. The Tribunal’s construction of s 49(3) as “surplusage” involved error of law (Decision, [4]-[6]). It should be borne in mind that the Tribunal’s view about s 49(3) was expressed tentatively only. It was made clear that no definitive opinion of law was being expressed because the Tribunal considered that it was not necessary to do so to decide the case. This has ramifications for questions of materiality which I will deal with below. The Tribunal considered that the reach of s 49(3) did not require determination in disposition of its review of the merits of Ms Grech’s application for registration because the agreed position of the Commission and Ms Grech was that only s 47(1) was in issue. Naturally, the agreement of the parties cannot dispense with the mandatory requirements of the statute.

18. [46]

    Returning to ground 1, it is apparent that s 47(1) requires the Commission to form an opinion as to whether the person is fit and proper. It is also apparent that this is a mandatory consideration in the Peko-Wallsend sense. It is, as I have previously put it, a statutory precondition which must be satisfied before a person is eligible for registration under s 47(1). It may also be termed a “jurisdictional fact”, at least for some purposes. I consider it apt to refer to the Malaysian Declaration Case (2011) 244 CLR 144 where French CJ wrote (at [57]):

19. [47]

    There is further support that s 47(1) is a ‘mandatory consideration in the sense that any failure to take [the consideration] into account, in circumstances where [the consideration is] engaged, will be an error in point of law’ (Ballantyne v Workcover Authority of NSW [2007] NSWCA 239 at [114] per Basten JA; Malaysian Declaration Case at [57] per French CJ) or to put it another way, ‘a pre-condition to the engagement of a statutory power’ rather than the label jurisdictional fact (Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 at [52] (Basten JA). Whether a condition in a statute is a pre-condition to the engagement of the statutory power is one of statutory construction (Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8, at [37]; Project Blue Sky, at [93]).

20. [48]

    The language of s 47(1) is obligatory, that is, the Commission ‘is to…ensure…’. It is also relevant that s 47(1) is an ancillary and universal consideration in Pt 5 Div 2. It precedes the specific registration powers within the division (Timbarra at [44]). The essentiality of s 47(1) is also supported by s 58(1)(b) GRA, as after it has validly exercised its registration jurisdiction, if it forms the opinion that a registered person is no longer fit and proper it can take disciplinary action (as it has done in Ms Grech’s case).

21. [49]

    Therefore, in relation to the registration of a greyhound racing participant, s 47(1) is a pre-condition to the registration power and s 49(3) is a residual discretion to refuse registration to a person otherwise eligible.

22. [50]

    It is relevant to have regard to Mason CJ’s description of the causal element required for an error to constitute an error of law in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (at 353):

23. [51]

    In my view, the proper application of the registration function required the Tribunal to consider the s 47(1) question, for the purpose of making a decision under s 49(1), with the residual discretion of s 49(3) available should there have been any relevant factors engaging that discretion. However, in the present case, the Commission has not demonstrated any such factors that would be relevant to s 49(3), that were not considered for s 47(1). This will be explained further below.

24. [52]

    The Tribunal’s tentative misinterpretation of s 49(3) as mere “surplusage” could amount to an error of law, but to make out jurisdictional error in the exercise of the s 49 registration power the Commission needs to establish the element of materiality. The same is true of a vitiating error of law on the face of the record: Bond at 353.

25. [53]

    In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 (“Hossain”), Kiefel CJ, Gageler and Keane JJ described jurisdictional error as follows (at [24]; [29]-[30]):

26. [54]

    In MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17, Kiefel CJ, Gageler, Keane and Gleeson JJ affirmed the principle of materiality (at [2]-[3]):

27. [55]

    In Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737, Kiefel CJ, Keane and Gleeson JJ explained (at [32]):

28. [56]

    It followed from Hossain that the notion of jurisdictional error is ordinarily to be understood as involving an element of materiality. This threshold of materiality was explained by Beech-Jones JA (Macfarlan JA and Simpson AJA agreeing) in Purcell v Director of Public Prosecutions [2021] NSWCA 269 as follows (at [22]-[23]):

29. [57]

    As stated above, I am not satisfied that the alleged failure of the Tribunal in construction of the statute is an error of law (see Bond at 353 (Mason CJ)). However, had I been required to consider whether the error was jurisdictional, neither would I have found that it was a material error. The present issue is one of statutory construction which does not already include a threshold of materiality (compare CNY17). The question would therefore be, if s 49(3) was properly applied could it possibly have resulted in a different outcome. As was earlier explained, there is overlap between considerations relevant to ss 47(1) and 49(3). Whilst there can be circumstances where a person is fit and proper, but it is in the best interests of the greyhound racing industry to refuse registration (ie exercise of the registration power’s residual discretion), this is not one such circumstance. The historical facts do not reveal the decision that was made could have been different if the Tribunal properly applied s 49(3). The Tribunal recognised that one view of the facts of Ms Grech’s relationship with Mr Kadir might have involved reputational damage to the industry. While the Tribunal looked at this factor for the purpose of s 47 to which it was certainly relevant. But as I have demonstrated it is also relevant to s 49(3). When pressed about what difference applying s 49(3) expressly and directly in the exercise of the registration power, the Commission did not proffer any additional historical facts relevant to the exercise of the residual discretion that could have possibly resulted in a different outcome (45.35-47.10T).

30. [58]

    Therefore, had I been satisfied that the Tribunal’s failure to apply s 49(3) amounted to an error of law, I would not have been satisfied that it was a material error and would have decided that it was not a jurisdictional error. For the same reason I am not satisfied that the Tribunal’s misinterpretation of s 49(3) is not a jurisdictional error.

31. [59]

    It appears from the grounds of review that ground 1 is claimed concurrently to be a jurisdictional error and an error of law on the face of the record. Had I found that the misinterpretation error was an error of law, I would have found that it was an error of law on the face of the record.

32. [60]

    The limitation of error of law being on the record is a feature of the Court’s limited supervisory role in judicial review. In Hockey v Yelland (1984) 157 CLR 124; [1984] HCA 72, Wilson J said:

33. [61]

    In Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58, it was said (at 181):

34. [62]

    The concept of “the record” has been broadened to include the reasons expressed by the Tribunal by statutory modification: s 69(4) Supreme Court Act 1970 (NSW). As pointed out by Basten JA in Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 [17], “it is significant that the amendment did not refer to written evidence (such as affidavits and documentary material), nor did it refer to the transcript, whether of evidence or submissions.”

35. [63]

    Whilst the Tribunal’s misinterpretation of s 49(3) would have been an error of law which appears on the face of the record, the Commission must also demonstrate that “the error is such as would warrant the grant of relief, bearing in mind that certiorari is a discretionary remedy” (Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; (2007) 171 A Crim R 510 at [40]. Cited more recently in AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 [22] (Basten JA)). For example, in Ramskogler v Director of Public Prosecutions (1995) 82 A Crim R 128, Handley JA wrote:

36. [64]

    Similarly to the reasoning regarding materiality for the purpose of jurisdictional error above, in my view, whilst there would have been an error of law apparent on the face of the record, the Commission has not established that it is of sufficient gravity to warrant the Court’s intervention into the jurisdiction of the Tribunal and set aside the decision by grant of certiorari.

Ground 3 – the second defendant committed an error of law by limiting its consideration of the protection of the public interest to matters of reputation

1. [65]

   The Commission submits that public perception of an individual’s likely future conduct is a matter relevant to the fit and proper test and this may overlap with consideration of the public interest. Though, it claims “insofar as Ms Grech was concerned, other public interest factors loomed large”. That included: diminution of public confidence in the industry (reputational damage or bringing the industry into disrepute), as well as the public interest in excluding a person from the greyhound racing industry who has had any form of involvement in live baiting or involvement with a person found guilty of engaging in live baiting (PWS [30]). The Commission submitted that the Tribunal confined its consideration of the public interest to only matters going to the reputation of the industry, which amounted to a failure to have regard to the broader public interest considerations (see [49] above).

2. [66]

   In response, Ms Grech relied upon the overlap between the fit and proper person test, and the best interests of the greyhound racing industry (DWS, [36]-[37]). She submits that there was no material failure to consider the best interests of the greyhound racing industry.

3. [67]

   Ground 3 as framed identifies the error as the Tribunal limiting its consideration of the public interest to matters of reputation. But it is apparent from the parties’ submissions that the ground is based on a failure to consider other factors said to be mandatory.

4. [68]

   It is necessary to repeat that s 47(1) requires the Commission’s satisfaction that the person seeking registration is a fit and proper person. From the words in parenthesis at the end of the subsection, this assessment is informed by “having regard in particular to the need to protect the public interest as it relates to the greyhound racing industry”.

5. [69]

   Reading s 47(1) as a whole, it follows that a range of factors will be relevant to the formation of the statutory opinion about whether an applicant is a fit and proper person. The consideration of the protection of the public interest relating to the greyhound racing industry is a mandatory consideration. As I have said it is the prism through which relevant factors are to be evaluated. The detrimental reputational consequence for the industry of a person not being fit and proper for participation is one of many possible factors that could be relevant to that person’s fitness and propriety. But it is not the only consideration relevant for s 47(1). What a decision-maker is required to take into account is determined by construction of the governing statute (Bay Simmer Investments Pty Ltd v New South Wales [2017] NSWCA 135; (2017) 222 LGERA 286 at [56] (Basten JA)). While there may be a myriad of relevant considerations for the purpose of s 47(1), with regard to this particular statute, the objects are suggestive of other relevant matters that could arise such as the welfare of greyhounds (GRA, s 3A(f)). Whether a person has been involved in live baiting would obviously be highly relevant in the statutory context as to whether he or she is fit and proper. Clearly, if so involved at any time, he or she would not be registered given the provisions of s 40 GRA.

6. [70]

   The Commission’s submissions in the Tribunal, as it related to the public interest, centred on reputation (CB 142 [55], 143 [58], [63], 145 [70]). The other public interest factors referred to were: Ms Grech used frozen animal bait which at the time of use was not prohibited but is now prohibited under current rules (CB 145 [68]-[69]); and her association with Mr Kadir (CB 146 [76]). These propositions were contested on the facts and found against the Commission.

7. [71]

   While the Commission’s provides two further examples of matters beyond reputation relevant to the public interest, in these proceedings, first, “diminution of public confidence” and second, the public interest in excluding persons from the greyhound racing industry who were involved in or convicted of engaging in live baiting, it has not established that those were not considered in the present case or a pertinent factor that ought to have been considered that was not. The difference been the reputation of the industry and the “diminution of public confidence” is illusory.

8. [72]

   In relation to the exclusion from the industry of persons who have been involved in live baiting, this potentially relates to two public interest concerns: reputation and the welfare of animals. However, the Tribunal made findings of fact that Ms Grech had no involvement in, and as is especially relevant in her case, or knowledge of, live baiting to “train” greyhounds by Mr Kadir. Therefore, Mr Kadir’s criminality should not be used against her. The Tribunal put it as follows:

9. [73]

   Insofar as Ms Grech’s association with Mr Kadir was a factor going to concerns beyond reputation, the Tribunal did not fail to address this. Rather, to say that the Tribunal failed to consider the public interest of excluding persons with associations with live baiting is to traverse the findings of fact underpinning the Decision. The Tribunal formed the view that Ms Grech’s association with Mr Kadir should not adversely affect her application for registration given the Tribunal was satisfied she had no knowledge of or involvement in his living baiting, as I have said more than once. Put another way, the Tribunal did not consider that Ms Grech should be hoisted on the petard of mere association with Mr Kadir. The Tribunal did not fail to consider Ms Grech’s association with Mr Kadir, rather he evaluated it in the light of the evidence he accepted and gave little weight to it. The weight given to a consideration is quintessentially a matter for the Tribunal and the limit of such fact-finding in judicial review, at its possible highest, is generally the unreasonableness standard (Peko-Wallsend 41 (Mason J, as he then was)).

10. [74]

    Further, the Decision reveals three further concerns that were considered by the Tribunal:

11. [75]

    All three of these factors could go to reputation but not solely or exclusively. The factors example the parties’ concurrence that matters of reputation may overlap with other concerns in the public interest. Items (a) and (c) are qualitative factors regarding the participant and her skill and expertise, which go toward ensuring the integrity of the greyhound racing industry. All three items also go to ensuring the welfare of greyhounds.

12. [76]

    The Tribunal did not limit its consideration of the protection of the public interest as it relates to the greyhound racing industry to only matters of reputation. Reputation was one primary concern, consistent with the Commission’s submissions at the Tribunal, but the Tribunal’s reasons cover concerns other than reputation. Ground 3 does not establish an error of law. In realty the Commission was challenging the merits of the Tribunal’s fact-finding.

Grounds 4-6 – whether Ms Grech was present during live baiting

1. [77]

   By ground 4, the Commission alleges that the Tribunal committed an error by ‘failing to have proper regard to [Ms Grech’s] presence during the practice of live baiting” in applying the statutory test for registration as a greyhound racing participant. Ground 5 claims that the Commission’s finding that her presence during live baiting was in her favour was unreasonable.

2. [78]

   The Commission does not contend that Ms Grech actively participated in any animal cruelty offences, including the practice of live animal baiting. Rather, it is her knowledge of such offending and her association with Mr Kadir that is said to be relevant to her registration.

3. [79]

   Whether a factor is relevant is “determined by the construction of the statute conferring the decision-making power” (Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 [134] McColl JA (“Wattie”)).

4. [80]

   In Wattie, McColl JA observed (at [153]-[154]):

5. [81]

   Also in Wattie, Emmett AJA said (at [227]):

6. [82]

   This ground falls to be considered on the basis of legal unreasonableness. As was explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 41 (Mason J) (at 41):

7. [83]

   In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16, Crennan and Bell JJ said (at [130]-[131]):

8. [84]

   In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, unreasonableness was expressed as (at [76] (Hayne, Kiefel and Bell JJ):

9. [85]

   In the same case, Gageler J said (at [113]):

10. [86]

    To similar effect, in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30, Kiefel CJ said (at [11]):

11. [87]

    The reasons are the focal point for assessing unreasonableness (Minister for Immigration and Border Protection v SZVFW (Nettle and Gordon JJ) [84]).

12. [88]

    Regarding the relevancy ground, in Bay Simmer Investments, Basten JA expressed (at [56]):

13. [89]

    As to the attribution of weight to a relevant consideration in Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105, the Court said:

14. [90]

    Evaluation of the evidence is precisely a matter within the Tribunal’s province (Bond at 388-389 (Toohey and Gaudron JJ)).

15. [91]

    Further, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30, McHugh, Gummow and Hayne JJ stated (at [74]):

16. [92]

    The Court’s inquiry in judicial review is not concerned with the correct and preferrable decision. The issue is whether the Decision is tainted by legal error, or to put it positively, whether it conforms to law. In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 96 ALJR 497, Kiefel CJ, Keane, Gordon and Steward JJ said (at [25]-[26]):

17. [93]

    The relevancy ground therefore goes to whether the absence of reference to some consideration exposes a flaw in the purported exercise of power. The GRA does not prescribe any express relevant considerations for the purpose of the Commission’s registration function beyond fitness and propriety assessed by reference to the public interest (s 47(1)). As I have said, obviously a great diversity of factors may be generally relevant without being mandatory. The GRA therefore leaves it to Commission (and the specialist tribunal) to assess the considerations that it considers relevant in a given case for determining a registration application (see in a different context, Wattie, at [225] (Emmett AJA)).

18. [94]

    The Commission submits that if the Tribunal did not make a finding as to whether Ms Grech was involved, or not, in live baiting, then this amounts to an error of law (PWS, [44]; PRS, [14]). I accept this must be so. Construing the Act as a whole, and by particular reference to s 40, I repeat, it is clear that involvement in animal cruelty offences (including live baiting), is a relevant consideration for the purpose of the Commission’s registration function. Live baiting is particularly relevant given the circumstances leading to the proposed banning of greyhound racing and the subsequent implementation of the new regulatory regime by dint of GRA to re-establish and maintain transparency and legitimacy of the industry as well as the welfare of greyhounds (Pt 5, Div 2 GRA). I remind the reader that under s 40 GRA, if a person is guilty of committing a live baiting offence “the person’s registration (if any) under this Act is automatically cancelled”, and “the person is permanently disqualified from being registered under this Act in any capacity”. To put it another way, the statute has a zero tolerance for participants criminally guilty of animal cruelty offences involving live baiting. As a matter of necessary implication, I accept that where the matter is raised it operates as a mandatory consideration for the formation of the s 47(1) opinion and, accordingly, in the exercise of the s 49 registration power.

19. [95]

    The central issue for disposition of this ground therefore is whether the Tribunal made a finding in relation to Ms Grech’s alleged involvement in live baiting. Consideration of some evidentiary material before the Tribunal is relevant but only to examine the legality of the Tribunal’s decision. Ms Grech’s evidence was that she was ‘not involved in live baiting or present [at Mr Kadir’s property] when living baiting activities took place’ (Ms Grech’s evidentiary statement p 3 [27]; CB 93). It is apparent from the Decision (at [24]), that the Tribunal formed the view that live baiting occurred at Mr Kadir’s premises, but otherwise accepted Ms Grech’s evidence that she did not know it was occurring. The Tribunal then went on to consider, “at its highest … what reputationally should follow from the fact of [Mr Kadir’s] live baiting and that she was there when it took place…’. The Tribunal found as a matter of fact that while Ms Grech was on the premises she had no involvement in or knowledge that live baiting was occurring. The Tribunal reiterated in paragraph 25 of the Decision that ‘at its highest the Tribunal can only note that the appellant was present when wrong conduct was taking place’. This formed part of the Tribunal’s description of the contextual facts ([13]-[14], [16]-18], [20]-[22]) which included Ms Grech’s involvement with Mr Kadir, the criminal charges against her and the limited admissible evidence against her which culminated in the criminal charges being dropped. The Tribunal’s finding that Ms Grech did not know about the occurrence of living baiting is also supported by paragraph 47 of the Decision, where the Tribunal expressed that Ms Grech’s knowledge of live baiting ‘…would be abhorrent to her love of animals…’. That is, her alleged involvement or acquiescence was contrary to what the Tribunal regarded as the apparent logic of events and therefore against the probabilities.

20. [96]

    Therefore, in relation to the central question, the Tribunal found that live baiting occurred whilst Ms Grech was present at Mr Kadir’s property but she was entirely unaware of its occurrence.

21. [97]

    The Tribunal did not fail to consider the question of Ms Grech’s presence during live baiting and ground 4 fails.

22. [98]

    This leads to ground 5. The Commission submits the Tribunal’s conclusion ‘that the presence of [Ms Grech] during the practice of living baiting was a matter that was in [her] favour on the question …’ of her registration under the Act was unreasonable, irrational and/or illogical.

23. [99]

    There is a well-accepted high threshold to establish unreasonableness. However, noting the mischief which the Act is concerned with, and the especially pejorative status of live baiting in this context (s 40 GRA), a finding that a person was involved in live baiting coupled with an evaluation that this was a factor in favour of the person being registered would certainly cross this high threshold. In my view, the Tribunal’s reasons should not be so understood.

24. [100]

    The Commission placed particular emphasis on paragraph 56 of the Decision, which states:

25. [101]

    The Commission rightly reads into paragraph 56, Ms Grech’s presence during the practice of live baiting. It is common ground that she was on the premises when this occurred.

26. [102]

    I reiterate, reading the reasons as whole, the interpretation contended by the Commission is not tenable because it takes the sentence out of context with an eye finely tuned to the detection of error. Paragraph 56 should be understood as a finding in favour of Ms Grech that she did not know live baiting was occurring at Mr Kadir’s property. That is to say, it is in her favour because she was not involved in and had no knowledge of the practice of live baiting at Mr Kadir’s property (ie see [24] Decision). The allegation against Ms Grech was not that she participated in live baiting but that she must have been aware it was going on (and acquiesced in it) because she was there. The Tribunal rejected this and still went on to consider whether her mere presence itself ought to have consequences for her registration. In the circumstances as the Tribunal found them to be, it was held it ought not. This was open to the Tribunal.

27. [103]

    Ground 5 is not made out.

28. [104]

    It is convenient now to deal with the related ground 6. The Commission submits that if the Tribunal concluded that Ms Grech was present whilst live baiting took place, this conclusion was “at odds with her affirmed evidence to the Tribunal to the contrary” (PWS [48]). The Commission submits that this went to her integrity and ultimately that the Tribunal gave insufficient weight to this factor. The Tribunal described the issue as involving, “the fact of live baiting and that [Ms Grech] was there when it took place” (Decision, [24]). In this Court this was essentially presented as a credit issue.

29. [105]

    In her statement, Ms Grech wrote that she first became aware of the occurrence of live baiting at Mr Kadir’s property when she was shown video footage from an RSPCA officer executing a warrant on the property (Grech statement, [27]). The Commission places emphasis on an exchange between Ms Grech and RSPCA Inspector Flett Turner (see [16] above).

30. [106]

    The Commission requested further information from Ms Grech in response to her application for registration dated 22 November 2021. In her reply to the Commission, Ms Grech provided details regarding her interaction with Inspector Turner. She explained her apparent admission to Inspector Turner was “not [a] properly considered” response and that she was “completely taken by surprise” by the Police and RSPCA officers at Mr Kadir’s property.

31. [107]

    In the Tribunal, Ms Grech’s evidence was that she misspoke in response to the RSPCA inspector’s question by agreeing that she was aware or present during the practice of live baiting (CB 164.12-.16). She agreed that since the day she spoke to Inspector Turner, her position is she had nothing to do with, nor had any knowledge, about live baiting.

32. [108]

    To consider ground 6, it is necessary to understand the meaning of “being there when [live baiting] took place”. Prior to doing so, it should be borne in mind that that it was entirely a matter for the Tribunal to assess Ms Grech’s evidence in the context of the case run before him and to resolve the necessary questions of fact, constrained in this Court only by the unreasonableness standard. It is apparent that the Tribunal accepted Ms Grech evidence that she did not have knowledge of live baiting at Mr Kadir’s property. And, Ms Grech “being there” when [live baiting] took place is not “at odds with her affirmed evidence” as contended by the Commission. That she was present is not to say that she was physically present or witnessed the practice of live baiting. Such a reading of the reasons would undermine the Tribunal’s finding of fact that Ms Grech did not have knowledge of the occurrence of live baiting at Mr Kadir’s property. In my view, the Tribunal’s finding that Ms Grech was at the property whilst live baiting occurred involves no more a temporal connection that her activities at Mr Kadir’s property coincided with his practice of live baiting.

33. [109]

    It is also relevant that the Tribunal referred to the ‘evidence [having] comprised what is described as the usual brief’ (Decision, [7]). The Tribunal expressly referred to the “detailed questionnaire created by Inspector Hitchock” and Ms Grech’s response through her solicitor, Mr Wilson. The evidence tendered in the Tribunal was included in these judicial review proceedings (Affidavit of Alice Anne Stafford, [13] and Ex AS-2). The material before the Tribunal included the statement of Inspector Turner dated 6 May 2021 which records his account of the conversation with Ms Grech relied on by the Commission as an admission of knowledge of Mr Kadir’s live baiting (CB 77). Therefore, I am satisfied that the references to the evidence at paragraph 7 of the Decision includes the apparent inconsistency arising out of Inspector Turner’s account and this was considered by the Tribunal.

34. [110]

    On his consideration of the evidence as a whole, the Tribunal accepted Ms Grech’s explanation (see eg Decision, [47]). Therefore, the Tribunal did not fail to have proper regard to the apparent inconsistencies in Ms Grech’s evidence regarding her presence during live baiting. It was open to the Tribunal to accept Ms Grech’s evidence despite there being a contrary hypothesis that she confessed to Inspector Turner in the heat of the moment, and this the Tribunal in fact did.

35. [111]

    I should also say were it open to me to assess the evidence for myself I would regard Inspector Turner’s account (at [16] above) as ambiguous. The apparent admission is followed immediately by a denial. It cannot be said (if it ever could) that the evidence before the Tribunal was such that it was bound in law to accept the commission’s version of it, or, to put it another way, no reasonable Tribunal could have come to the same conclusion. It was the Tribunal’s function to resolve disputed questions of fact. In this case it did so having had the advantage of seeing and hearing Ms Grech’s oral testimony. Inspector Turner did not give oral evidence. I do not think it can be said on the materials before me that the Tribunal misused, let alone, palpably misused its forensic advantage.

36. [112]

    Accordingly, ground 6 is dismissed.

Ground 7 – Ms Grech’s association with Mr Kadir

1. [113]

   By ground 7 the Commission claims that the Tribunal fell into error by failing to properly consider Ms Grech’s ongoing association with Mr Kadir in determining registration under the GRA. As earlier said, Mr Kadir was convicted of live baiting offences.

2. [114]

   It is apparent from the Decision that Ms Grech’s association with Mr Kadir was properly regarded as of significance to the Tribunal. The Tribunal said (at [14] and [25]):

3. [115]

   The Tribunal described Ms Grech’s relationship with Mr Kadir through her father, but subsequently through Mr Kadir’s wife. Mr Kadir was not a “well man”. Ms Grech had given an undertaking to Mrs Kadir to help Mr Kadir prior to her passing away (Decision, [23]).

4. [116]

   The Tribunal found that Ms Grech’s association with Mr Kadir “continued beyond the charging process to which they were subjected in 2015 right up until 2020 when he was sentenced”. The Tribunal said he was concerned about the continued association, as it “scream[ed] out a lack of understanding of reputational conduct and reputational need of the industry” (Decision, [37]). The Tribunal pointed out that Ms Grech continued to associate with Mr Kadir at the time of her November 2021 application (Decision, [39]).

5. [117]

   Whilst the Tribunal had regard to the reputational ramifications of Ms Grech’s continued association with Mr Kadir and what that might say about her fitness to be a participant, it also weighed a series of countervailing factors which suggested the relationship was innocent:

6. [118]

   The Tribunal’s assessment is made at the time of its decision. As earlier stated, the Court is not concerned with the correct and preferrable decision but is only concerned with the detection of legal error. It is relevant that the Tribunal is to be satisfied as to fitness at the time of hearing, not at the time of the original decision (s 16 Racing Appeals Tribunal Act).

7. [119]

   As follows from above, the Tribunal was cognisant of Ms Grech’s relationship with Mr Kadir and particularly of her failure to recognise the reputational impact of the relationship. It cannot be said that the Tribunal’s decision in this regard lacked intelligible justification. What can be discerned from the Decision is that the Tribunal accepted Ms Grech as a credible witness. It accepted her evidence.

8. [120]

   It is apt to recall the Callinan J’s endorsement in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 [130] of the statement in Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78 at 479 (Brennan, Guardon and Mc Hugh JJ):

9. [121]

   It cannot be said that the Tribunal failed to give sufficient weight to the ongoing relationship, in the legal unreasonableness sense, given the countervailing considerations identified by the Tribunal, that supported her fitness and propriety. For example, is it notable that Ms Grech had ceased her relationship with Mr Kadir. It is also notable that the Tribunal found that Ms Grech had no knowledge of the occurrence of live baiting. Then there are a series of qualitative considerations as to the training and stable facilities available to Ms Grech, and the Tribunal’s satisfaction with Ms Grech’s familiarity with the requisite rules. Accordingly, I am not of the view that it can be said that the Tribunal gave such insufficient weight to Ms Grech’s personal relationship with Mr Kadir such that the decision lacked an intelligible justification. The Tribunal gave that matter considerable weight in his reasoning. There is an available, not unreasonable viewpoint, that the maintenance of her promise to Mrs Kadir and her caring for an ill man are matters which are positive to her integrity. Her integrity is relevant to her fitness and propriety, which of course is fundamentally a test of character. The weight of the competing factors is a matter for the Tribunal’s attribution (Wattie [137] (McColl JA)). Nor is this a case where an irrational choice or unreasonable reasoning process is apparent (M Aronson, M Groves, G Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook Co, 2022) 246-247).

10. [122]

    The Tribunal’s decision in this regard does not cross the high threshold for unreasonableness in relation to the consideration given to Ms Grech’s relationship with Mr Kadir.

11. [123]

    Ground 7 is dismissed.

Ground 8

1. [124]

   By ground 8, the Commission claims that the conclusion that Ms Grech’s ongoing association with Mr Kadir, as a person convicted of live baiting offences, was a matter in her favour in whether she was a fit and proper person was unreasonable, irrational and/or illogical. Quite clearly this is covering much of the same ground as ground 7.

2. [125]

   Ground 8 draws on paragraph 43 of the Decision:

3. [126]

   The Tribunal’s reasoning at paragraph 43 was not unqualified, rather by the words “to some extent”, the factor in Ms Grech’s favour was only to a limited extent. In any case, paragraph 43 must be understood in the context of the reasons as a whole. It is also important that the Tribunal pointed out the deleterious reputational concern of Ms Grech’s ongoing relationship with Mr Kadir (see Decision [25]). It follows, clearly an unqualified use of the relationship as a positive factor in Ms Grech’s assessment as a fit and proper person would not be consistent with the reasons a whole.

4. [127]

   Moreover, the Commissioner’s ground 9 does not accurately represent the Tribunal’s finding at Decision [43]. That is to say, the Tribunal did not conclude that Ms Grech’s ongoing relationship with Mr Kadir as a person convicted of living baiting offences was a matter in her favour regarding the application of s 47 of the GRA. The use of the subordinate conjunction creates a connection between the ongoing relationship and the criminal charges which is not apparent from the Decision.

5. [128]

   Rather, reading the reasons a whole leads to the following meaning: The Tribunal recognised that Ms Grech’s ongoing relationship with Mr Kadir had a reputational impact on the greyhound racing industry (eg Decision, [25], [37]). Despite this, in a limited sense, the ongoing relationship was to her credit for the purpose of determining whether she was a fit and proper person because she was caring for a man “not travelling well” and she was maintaining a promise to Mrs Kadir. In this regard, the ongoing relationship with Mr Kadir was a reflection of her good character.

6. [129]

   It is relevant to point out what the Tribunal said at [53]:

7. [130]

   The Tribunal accepted the association may have had a reputational impact. But concluded that it would be harsh and lack compassion to say that she should have prioritised the reputation of the industry over Mr Kadir’s ill health and her personal promise to Mrs Kadir (at [44]).

8. [131]

   The Commission submits that at most, the expression at paragraph 43 could amount to a neutral factor (23.10T). In my view, whilst there was a tension between the ongoing relationship and the reputation of the industry, it was not unreasonable for the Tribunal to consider that the relationship was positive in the limited sense having some bearing upon her fidelity and character.

9. [132]

   I wish to make it clear that an ongoing relationship with a person permanently disqualified from registration for disgraceful conduct such as live baiting is relevant to the question of an applicant’s fitness for registration, but it cannot of itself and without more be determinative. As in the case at hand, it is necessary to consider the relevant aspects of the relationship to evaluate its significance for the applicant’s fitness. As the Tribunal observed there is a perhaps strong disinclination to attribute the unfitness of one to another by dint of no more than association.

10. [133]

    Ground 8 is not made out.

Ground 9 – the ultimate satisfaction under section 47 was unreasonable

1. [134]

   This ground is largely built on the preceding grounds attempting to impugn the factual integers of the Tribunal’s decision that Ms Grech was a fit and proper person for the purpose of s 47 and that the registration power should be exercised in her favour under s 49. Given that I have rejected each assault on the individual findings which underpinned the Tribunal’s ultimate finding the necessary conditions to set aside the Tribunal opinion that Ms Grech is a fit and proper person must be rejected.

2. [135]

   I wish to make it clear however that had the Commission been able to establish that the findings made did not conform to law the position would have been different had the Tribunal accepted the Commission’s case that Ms Grech had assisted Mr Kadir with knowledge or awareness that he was employing live baiting to train the greyhounds while she was present and assisting him. In my judgment that finding alone, as I have attempted to make clear would have made it legally unreasonable to have formed the opinion that she was a fit and proper person especially having regard to the public interest as it relates to the greyhound racing industry. In this regard the objectives of ensuring integrity in the industry and the welfare of greyhounds would have been powerful barriers to registration. Even though she has not been found guilty of any live baiting offence, the policy and purpose of s 40 would also have been a very powerful contrary consideration for both s 47(1) and s 49(3) purposes bearing in mind their overlapping operation.

3. [136]

   Likewise, had the Tribunal rejected Ms Grech’s non-culpable explanation for handling greyhounds while unregistered at a trial, non-disclosure of the withdrawn prosecution and the length of her association with Mr Kadir, a real question for determination by this Court about the reasonableness of the Tribunal’s decision would have arisen. If all of these issues had gone against Ms Grech, and it was shown she was aware Mr Kadir was live baiting his greyhounds while she was assisting him, no reasonable Tribunal could have formed the opinion that she was a fit and proper person to be a participant in the industry.

4. [137]

   But the Tribunal found none of these things. In fact, he found against the Commission on every material question of fact presented for his determination and those findings have not proven susceptible to review in this Court on administrative law principles.

5. [138]

   Naturally, that another Tribunal may have seen the case differently, evaluating the facts in the light of the applicable law to the conclusion opposite from this Tribunal does not establish unreasonableness, illogicality or irrationality. While Ms Grech’s application might have gone either way given the issues, I am not persuaded that the Commission has established that Tribunal’s decision was outside the bounds of the law which governs its exercise of power. This Court is not authorised to undertake a merits review which in some respects the Commission’s challenges seemed to invite: Attorney General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 33 at 35-36.

6. [139]

   My orders are:

   1. (1)

      Dismiss the application for judicial review and the summons.

   2. (2)

      The plaintiff to pay the first defendant’s costs.