VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST / vcat reference No. Z810/2015APPLICANT / Daniel Mario Nikolic
RESPONDENT / Racing Victoria Limited
WHERE HELD / Melbourne
BEFORE / H. Lambrick, Deputy President
HEARING TYPE / Hearing
DATE OF HEARING / 3, 4, 5, 6, 7 & 19 October 2016
DATE OF ORDER / 22 March 2017
CITATION / Nikolic v Racing Victoria Limited (Review and Regulation) [2017] VCAT 406
Order
The decision of the respondent dated 22 September 2015 is affirmed.
H. LambrickDeputy President
APPEARANCES:
For Applicant: / Mr J.W.K Burnside AO QC with Mr RedenbachFor respondent: / Mr J.J Gleeson QC with Mr Hooper
Reasons
1 Mr Nikolic was first licensed as a jockey in 1990 and has competed in Australia, Hong Kong, Macau, Mauritius and New Zealand. His career has seen many highlights. He has been an accomplished jockey.
2 His life has, however, not been without incident. He has accumulated a criminal history. He has been found guilty of a number of charges before the Racing Appeals and Disciplinary Board (“the RAD Board”). He has had his jockey licence suspended. The Chief Commissioner of Police has issued him with a Casino Exclusion Order under the Casino Control Act 1991 and the Deputy Commissioner of Police (under delegation) has issued him with a Racecourse Exclusion Order under section 33 of the Racing Act 1958 (Vic) (“the Racing Act”).
3 On 4 May 2015, Mr Nikolic submitted a jockey licence application to Racing Victoria Limited (“Racing Victoria”). On 22 September 2015, a delegated subcommittee of the Racing Victoria Board denied his jockey licence application on the basis that it did not consider Mr Nikolic a fit and proper person to ride in races.
4 Mr Nikolic sought a review of that decision under section 83Q(a) of the Racing Act which provides that a person may apply to the Victorian Civil and Administrative Tribunal for a review of a decision to refuse an application for an occupational racing licence. The matter proceeded before me, commencing on 3 October 2016 and concluding on 19 October 2016.
5 Mr Burnside AO QC appeared with Mr Redenbach of Counsel on behalf of Mr Nikolic and Mr Gleeson QC appeared with Mr Hooper of Counsel for Racing Victoria.
6 Mr Nikolic gave extensive evidence and called one witness, Dr Samson Roberts.
7 Racing Victoria called a number of witnesses: Mr Terry Bailey; Mr Alf Matthews; Mr Mark Pegus; Ms Ricki-lee Hull; Ms Tanya Hyett; Mr Mark Zahra; Mr John Zahra; Mr Iqbal Mohammed and Detective Senior Constable Salerno.
8 I apologise to the parties for the delay in publishing these reasons. Shortly after the hearing, I took extended leave following an unexpected medical event.
Regulatory background
9 In Nikolic v Racing Victoria Limited (Occupational and Business Regulation) [2012] VCAT 1954 (21 December 2012), his Honour Judge Macnamara succinctly summarised the regulatory context in which racing is conducted in Victoria as follows:
…Section 24 of the Act gives Racing Victoria a monopoly of the conduct of thoroughbred racing in the State and requires it to be carried out on licensed racecourses. The meetings must be carried out ‘in accordance with the rules for the time being in force of Racing Victoria ...’ (Section 61(c)).
‘... According to the determination of the Tribunal (Ross J, President; Senior Sessional Member Mr J. Nixon and Senior Member E. Riegler) in Clements v Racing Victoria Limited [2010] VCAT 1144, those rules have effect in the manner that rules of clubs and unincorporated associations do, that is, by contract. The Racing Act requires the various players in the racing industry to hold licences from Racing Victoria and as such these licensed ‘players’ in the industry are bound by the Australian rules of racing.
The rules as they existed a few decades ago, were described by the Judicial Committee of the Privy Council in Calvin v Carr [1979] UKPC 1; [1980] AC 574 as constituting ‘a comprehensive scheme or code for the administration of racing and for the exercise of discipline through domestic body’ [1979] UKPC 1; [1980] AC 574, 589.
The rules place the supervision and control of race meetings in the hands of a group of officers known as stewards. This is in accordance with a model of operation which in Australia and Britain reaches back for centuries.
One of the features of this mode of control is that, as the primary disciplinary body in the racing industry, the stewards may occupy the role of prosecutor in disciplinary proceedings and also decision-makers in their own cause. This is in accordance with, and hallowed by, centuries of usage. In the Anglo-Australian legal system, generally, such a structure would be regarded as offensive to the rules of natural justice; nevertheless, those engaged in the racing industry are, by the force of contract and their acceptance of the Australian Rules of Racing, regarded as having dispensed themselves from the entitlement to rely on any inconsistent elements in the rules of natural justice or procedural fairness as they are sometimes described: R v Brewer; ex parte Renzella [1973] VicRp 36; [1973] VR 375.
10 This application centres on the Local Rules of Racing (LR), made by Racing Victoria, which govern applications for a jockey licence.
11 LR 36A permits a person licensed as a jockey by the directors of Racing Victoria to ride in a race at a race meeting.
12 LR 36B governs licences and permits.
13 On 1 July 2016, after Mr Nikolic made his application to this Tribunal, LR 36B(8)(a) was deleted and replaced with a new LR 36B. The relevant effect of the change to the rules was, to require, in addition to the ‘fit and proper person’ test to obtain a jockey’s licence, the prerequisite that a person be of ‘good reputation and character’.
14 LR 36B (1) reads as follows:
application: requirement for grant of license to ride: an application to the directors for the grant or renewal of license or permit to ride must meet the requirements set out in the Racing Victoria Jockey Licensing Policy (as amended from time to time).
15 On the same day Racing Victoria’s Jockey Licensing Policy (“the Policy”) came into force, paragraph 3 (d) of the Policy provided as follows:
In addition to any specific requirements set out in this policy or in the rules, it is a requirement for the grant of any licence to ride that the person:
(d) character: is of good reputation and character and is a fit and proper person to hold a licence to ride, including adherence to Racing Victoria’s social media policy.
Discussion
16 The Tribunal generally applies the law as it stands at the time it exercises its review jurisdiction. In Branbeau Pty Ltd v Victorian Commission of Gambling Regulation [2005] VCAT 2606, President Morris stated at [38] ‘the normal rule is that the Tribunal applies the law as it stands at the time of the Tribunal decision’. Similarly in Applebee v Monash CC [2014] VCAT 257, President Garde said at [35] that the review “is carried out on the basis of the facts and the law at the time the review decision is made”.
17 Mr Burnside, however, submitted that I should apply the LR in force when Mr Nikolic filed his application for review.
18 He referred me to the High Court decision of Esber v the Commonwealth (1992) 174 CLR 430 as authority for the proposition that, in a hearing de novo where the applicant has an accrued right at the time of the application to have the matter determined on existing law, that existing law must be applied unless there is a clear intention the amendment extinguishes that right. He contended that Mr Nikolic did have such an accrued right.
19 Mr Gleeson submitted that Esber was distinguishable from the facts in this proceeding.
20 I agree with the submissions of Mr Gleeson.
21 Unlike in Esber, Mr Nikolic has not been deprived of his right to have the decision reviewed by the Tribunal. The right to review is conferred by section 83Q(a) of the Racing Act. This provision has not been repealed or amended. The right to review is not a right that accrued to Mr Nikolic under LR 36B. Nor is his right to review lost by reason of the amendment of LR 36B.
22 Mr Burnside submitted, in the alternative, that it would be contrary to natural justice to apply Racing Victoria’s revised rules and jockey licensing policy. He said given the impact of barring an individual from their profession and the significant financial and personal impact of the decision on Mr Nikolic, the matter should be approached with meticulous caution and meticulous care. He contended that it offended any sense of justice that Racing Victoria could “move the goal posts” whilst the VCAT proceeding was ‘on foot’.
23 I did not accept this contention. There is no evidence before me that Racing Victoria “moved the goalposts” with the intention of thwarting Mr Nikolic’s application. The Legislature has seen fit to charge Racing Victoria with the responsibility of administering and controlling thoroughbred racing in Victoria and, in doing so, to decide upon the appropriate Rules of Racing. The rules apply in the same way to all applicants seeking to be licensed. There will inevitably be regulatory proceedings underway from time to time, which may coincide with Racing Victoria revising the rules of racing. It would be unrealistic to expect Racing Victoria to hold off changing rules until all proceedings were finalised, or to apply different rules to different applicants.
24 I am satisfied that there is no reason in this case why I should move away from the general rule that the Tribunal determines a matter on the facts and law as it exists at the time of the hearing.
25 Racing Victoria also contended that Mr Nikolic did not meet the requirement set out in the Policy under paragraph 3(g) – Intent: intends to ride in Victorian races on a regular basis.
26 Accordingly, standing in the shoes of Racing Victoria, in order to grant a licence to ride, I must be satisfied that Mr Nikolic is of good reputation and character and is a fit and proper person to hold a licence to ride, including adherence to Racing Victoria’s social media policy. I must also be satisfied that Mr Nikolic intends to ride in Victorian races on a regular basis.
27 Mr Burnside contended that if I were to find against Mr Nikolic, my findings would be the equivalent of a finding of serious misconduct and should be assessed by the same standard. He referred me to the well-known test set out in Briginshaw v Briginshaw (1938) 60 CLR 336. He contended that I should only make a finding adverse to Mr Nikolic, after approaching the matter with caution and meticulous care and with “great appreciation for the possible disastrous consequences of disbarment to the individual concerned” (Legal Services Board v Francis McGrath (2010) 29 VR 325 at 329).
28 There is no strict onus of proof in these proceedings. I need to arrive at the correct and preferable decision in relation to Mr Nikolic’s application for a jockey licence based on the totality of the evidence before me. The consequences are significant for each side. Barring an individual from his chosen profession potentially has a significant financial and/or personal impact. Conversely, Racing Victoria is given the onerous responsibility of ensuring the integrity of thoroughbred racing in Victoria is maintained. I agree that such matters need to be approached with care.
29 At the outset, the parties provided me with a Statement of Agreed Facts (“SAF”), which essentially provided a chronological history of matters relevant to this application, which I now replicate, with minor grammatical changes. I have also from time to time interposed (in brackets) further, non-contentious, contextual material.
Statement of Agreed Facts (SAF)
1. In or around March 2010, a charge was found proven against Mr Nikolic by the Racing Appeals and Disciplinary Board under AR 175(p) and he was fined $5000 for failing to comply with a direction of the stewards in February 2010 to hand in his mobile phone for inspection of his contacts list.
2. On or around 29 June 2010, Mr Nikolic pleaded guilty in the Racing Appeals and Disciplinary Board to a charge under AR 175(j) for engaging in improper behaviour on 13 February 2010 at Moonee Valley Racecourse while speaking to Mr Terry Bailey (the Chief Steward), in the Stewards room.
3. On or around 29 June 2010, Mr Nikolic was found not guilty of two charges under AR 175(a) of ‘dishonest, corrupt, fraudulent, improper or dishonourable action or practice in connection with racing”.
On or around 29 June 2010, Mr Nikolic was found not guilty of two charges under AR 175(a) of ‘conduct prejudicial to the image, or interests, or welfare of racing”.
(These matters became known the “Betfair Inquiry”).
On or around 29 June 2010, Mr Nikolic pleaded guilty to a charge under AR 91 and was fined a total of $1000 for having left the jockeys’ room without gaining permission from the Stewards on four occasions in Seymour (18/09/09); Kyneton (20/10/09); Geelong (21/10/09) and Flemington (01/01/10).
4. On or around 10 July 2010, Mr Nikolic pleaded guilty to a charge under AR 83(a) for misconduct and was fined $300 because:
(a) he said a licensed trainer was ‘an absolute mug, dickhead, brain dead’; and;
(b) his general conduct in the Stewards’ Inquiry.
5. On or around 4 September 2010, Mr Nikolic was severely reprimanded after being charged with misconduct under AR 83(a), having used insulting language in the Scales area before the running of a race at Flemington Racecourse.