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Kavanagh & OBrien v Racing Victoria Limited (Review and Regulation) [2015] VCAT 1765 (19 November 2015)

Last Updated: 25 November 2015

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

CATCHWORDS

Racing appeals – Racing Act 1958 (Vic) s 83OH – Australian Rules of Racing – Retention of trainer’s share of prize money in Group and Listed Races – Construction of AR 8(z) – Analogy of Mareva injunctions and freezing orders – Continued participation of applicants in the racing industry – Unacceptable risk to, prejudice or undermining of the image, interests or integrity of racing – Interests of racing – Orders made by RAD Board set aside and vacated.

ORDERS

Under s 51(2) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), orders 1 to 7 inclusive of the decision of the Racing Appeals and Disciplinary Board made on 25 August 2015 are set aside and in substitution there are orders that:
(1) The appeals are successful.
(2) The decision of the Stewards made on 3 August 2015 whereby the condition was imposed is set aside and vacated.

APPEARANCES:

For the applicants: Mr D. P. Sheales of counsel, instructed by

Mr J. Quilty of Lander & Rogers

For the respondent: Mr J. Gleeson QC and Mr J Hooper of counsel, instructed by Mr D. Poulton of Minter Ellison

REASONS

INTRODUCTION

Background

1. This is an application by Mark Kavanagh and Danny O’Brien (‘the applicants’) under s 83OH of the Racing Act 1958 (Vic) to review the decision of the Racing Appeals and Disciplinary Board (‘the RAD Board’) made 25 August 2015. The applicants are licensed trainers of 24 and 20 years respectively.
2. Following an investigation on 11 June 2015, the Stewards (‘the stewards’) of Racing Victoria Limited (‘Racing Victoria’) laid charges against the applicants for alleged breaches of Australian Rules of Racing (‘AR’) 175(h)(i), 175(h)(ii), 175(k) and 178 in relation to elevated levels of cobalt detected in racehorses under their care which competed in races in 2014.
3. The charge relating to Mr Kavanagh concerns an elevated level of cobalt detected in respect of the horse Magicool on 4 October 2014 at Flemington.
4. The charges relating to Mr O’Brien relate to four horses which returned positive cobalt readings. They are Caravan Rolls On and Bondeiger which raced at Flemington on 1 November 2014; De Little Engine which raced at Ballarat on 22 November 2014, and Bullpit which raced at Moonee Valley on 19 December 2014.
5. On 3 August 2015, the stewards made an order in respect of each of the applicants (‘the stewards’ order’) in these terms:

That any trainer’s percentage of prize money earned by [the applicant] in Group and Listed races conducted in Victoria on and after 3 August 2015 be held by Racing Victoria pending the final determination of charges laid against [the applicant] by the RAD Board. In the event that [the applicant is] found:

(a) if not guilty under AR 175(h)(i) and (h)(ii), the prize money held by Racing Victoria will be distributed to [the applicant]; or

(b) guilty of either of the charges under AR 175(h)(i) or (h)(ii), the Stewards will submit that the permanent forfeiture of the prize money held by Racing Victoria ought to occur and may be taken into account as part of any penalty imposed.

6. The applicants appealed against the order of the stewards to the RAD Board. On 25 August 2015, the RAD Board allowed the appeals in part and ordered:

...

2. The decision of the Stewards made on 3 August 2015 whereby the condition was ordered is varied in accordance with these orders.
3. That any trainer’s percentage of prize money earned by Mark Kavanagh in Group and Listed races conducted in Victoria on and after 3 August 2015 up to the maximum amount of $100,000 be held by Racing Victoria pending the final determination by the RAD Board of the charges laid against Mr Kavanagh on 11 June 2015.
4. That any trainer’s percentage of prize money earned by Danny O’Brien in Group and Listed races conducted in Victoria on and after 3 August 2015 up to the maximum amount of $200,000 be held by Racing Victoria pending the final determination by the RAD Board of the charges laid against Mr O’Brien on 11 June 2015.
5. That in the event the RAD Board finds none of the charges laid against Mr Kavanagh made out, or if the charges are otherwise withdrawn, any prize money held pursuant to order 3 shall be distributed forthwith to Mr Kavanagh.
6. That in the event the RAD Board finds none of the charges laid against Mr O’Brien made out, or if the charges are otherwise withdrawn, any prize money held pursuant to order 4 shall be distributed forthwith to Mr O’Brien.
7. Subject to orders 5 and 6, there be liberty to apply to the RAD Board upon the final determination by the RAD Board of the charges laid against either of the Appellants as to the distribution to that Appellant of any prize money held by Racing Victoria pursuant to orders 3 or 4.

(‘the RAD Board order’)

7. On 27 August 2015, the applicants appealed to the Tribunal relying on six grounds of appeal:

Ground 1: That the conditions imposed by the RAD Board are ultra vires of the powers conferred by the Rules on either the Stewards or the RAD Board.

Ground 2: The RAD Board erred in finding that the powers conferred by AR 8(z) were enlivened in the instant case.

Ground 3: The RAD Board erred in determining that the instant case was this is (sic) an appropriate case for the exercise of the power conferred by AR 8(z).

Ground 4: The RAD Board denied the [applicants] natural justice with regard to factors the Board took into account in determining the conditions that it imposed.

Ground 5: The RAD Board erred in imposing a “cap” upon monies purported to be retained.

Ground 6: The conditions imposed by the RAD Board are unreasonable.

8. The appeal to the Tribunal is a de novo appeal. The Tribunal stands in the shoes of the RAD Board and determines the matter on its merits.^[1] This is in accordance with the general principles governing the Tribunal’s exercise of its review jurisdiction.^[2]
9. Racing Victoria relies on the stewards’ briefs as they relate to the charges, and the affidavits of David Stanley Poulton. The affidavit exhibits a bundle of abstracts of 329 media articles published in major newspapers distributed in Victoria over the period from 1 January 2015 to 10 November 2015. The abstracts are received as evidence of the extent of media publicity, but not as evidence of the truth of the information contained in them.

The orders of the stewards and the RAD Board

10. The stewards’ orders and the RAD Board order have a number of similarities:

(1) each order requires that the trainer’s percentage of prize money earned in Group or Listed races conducted in Victoria be held by Racing Victoria pending the hearing and determination of the charges;

(2) the actual amount of money to be withheld from each applicant is dependent on the level of success of racehorses trained by the applicants in Group or Listed race meetings;

(3) the orders do not apply to prize money from race meetings in Victoria that are not Group or Listed meetings;

(4) the orders do not apply to race meetings conducted interstate. Both applicants are active interstate;

(5) neither order applies to trainer’s fees agreed with owners;

(6) each order provides for the prize money which was withheld to be paid to the applicants in the event that the charges are dismissed; and

(7) the orders do not resolve what is to happen to the retained monies if the charges are proven.

11. There are, however, significant differences between the stewards’ orders and are the RAD Board order.
12. The stewards’ order:

(1) is unlimited in magnitude, containing no cap on the sums of money to be retained by Racing Victoria; and

(2) provides in the event of a finding of guilty on either of the charges under AR 175(h)(i) or (h)(ii) for the stewards to submit to the RAD Board that the prize money should be permanently forfeited as part of any penalty imposed.

13. The RAD Board order provides for:

(1) a maximum amount of prize money of $100,000 to be withheld in the case of Mr Kavanagh;

(2) a maximum amount of prize money of $200,000 to be withheld in the case of Mr O’Brien;

(3) the prize money withheld from the applicants to be paid to them if the RAD Board finds that the charges are not made out, or if the charges are withdrawn; and

(4) the applicants to have liberty to apply to the RAD Board upon final determination of the charges by the RAD Board.

Present position

14. As at 10 November 2015, Racing Victoria holds sums of money, being the trainers’ shares of prize money earned in Group and Listed races in Victoria since 3 August 2015, as contemplated by the RAD Board order. The amount referable to Mr Kavanagh’s share is $660.00 (including GST) and the amount referable to Mr O’Brien, $17,022.50 (including GST). There are only fourteen Group and Listed races in the racing calendar in Victoria between 14 November 2015 and 26 December 2015. The total amount of prize money available to the winner of those races is $1,392,000.00 (excluding GST).
15. The charges against Mr Kavanagh and Mr O’Brien will be heard by the RAD Board on 30 November 2015.

AR 8(z)

16. AR 8 deals with the powers of the stewards to assist in the control of racing. AR 8(z) is an important rule, and is the rule that was exercised by the stewards and the RAD Board. It provides:

Notwithstanding anything contained within these Rules, and not in limitation of any power conferred by these Rules (or a local rule of a Principal Racing Authority) or a person has been charged with the commission of an indictable criminal offence, the Stewards pursuant to the authority delegated by the Principal Racing Authority, if of the opinion that the continued participation of that person in racing might pose an unacceptable risk to, prejudice or undermine the image, interests or integrity of racing, may:

(a) suspend any licence, registration, right, or privilege granted under these Rules to that person;

(b) prevent any horse owned (or part-owned) or leased by that person from participating in any race or official trial;

(c) order that any registration of the transfer of ownership and/or training of a horse related to that person not be effected;

(d) make any other direction or order related to the person which is in the interests of racing.

pending the hearing and determination of the charge under these Rules, the relevant local rule or the relevant criminal charge.

The contractual nature of the Rules

17. The Australian Rules of Racing are contractual in nature.^[3] As a result, questions about their scope and limitations fall to be determined by the usual principles of construction. In particular, the power conferred by AR 8(z)(d) is open to two possible interpretations. The power could be construed as necessarily limited to the purposes for which the opinion that is the precondition for its exercise relates, or it could be construed so that once the opinion is formed, the power authorises the stewards to make any order at all, provided that it is in the interests of racing.
18. In my view, it is plain that the former construction is to be adopted when regard is had to the evident purpose and language of AR 8(z) itself. The High Court has recently reiterated the importance of reasonableness, context and mutual purpose in the construction of contractual terms. In Electricity Generation Corporation v Woodside Energy Ltd^[4] the majority observed that

[T]his Court has reaffirmed the objective approach to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract.^[5]

19. This point was reiterated even more recently in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd.^[6] Summarising the applicable legal principles, Chief Justice French, Justices Nettle and Gordon stated that ‘[t]he rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (...) and purpose. In determining the meaning of the terms ... it is necessary to ask what a reasonable businessperson would have understood those terms to mean.’^[7]
20. As was noted in Electricity Generation Corporation, this approach is ‘not unfamiliar’. It is seen in the widely quoted judgment of Mason CJ in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales:^[8]

Consequently when the issue is which of two or more possible meanings is to be given to a contractual provision we look, not to the actual intentions, aspirations or expectations of the parties before or at the time of the contract, except in so far as they are expressed in the contract, but to the objective framework of facts within which the contract came into existence, and to the parties' presumed intention in this setting. ...

... After all, the court is interpreting the contract which the parties have made and in that exercise the court takes into account what reasonable men in that situation would have intended to convey by the words chosen.

21. The construction of AR 8(z) and the discretionary powers it confers are of pivotal importance in this proceeding. In the present case, it is not necessary to go beyond the words used in clause AR 8(z) itself to ascertain its true purpose.

Construction of AR 8(z)

22. AR 8(z) is a provision expressed to have paramount application, and takes effect ‘Notwithstanding anything contained in these Rules’ and ‘not in limitation of any power conferred by these Rules’. AR 8(z) has operation in circumstances including where a person has been charged with a breach of the Rules of Racing or with the commission of an indictable criminal offence. It requires a delegation to the stewards to be given by Racing Victoria. The existence of the delegation was not in dispute.
23. Before any power in AR 8(z) can be exercised, it is necessary for the stewards, or the RAD Board, to be of the opinion that ‘the continued participation of the accused person in racing might pose an unacceptable risk to, prejudice or undermine the image, interests or integrity of racing’. Orders made under AR 8(z) may only be of an interim or interlocutory nature, persisting until the hearing or determination of the charges against the accused at the latest.
24. In my view, the opinion which the stewards are required to form as a condition precedent to the exercise of the powers in AR 8(z) clearly shows the intent and purpose underlying the rule. First, the opinion must relate to, or concern, the continued participation of the accused person in racing over the period of time from the preferment of one or more charges to the hearing and determination of those charges. Secondly, the opinion must also focus on the risk or prejudice that the continued participation of the accused person might have on the image, interests or integrity of racing.
25. What emerges from this consideration is that the purpose of AR 8(z) is to limit or regulate the accused person’s continued participation in racing so as to avoid the potential for the negative consequences outlined in the rule. Each of the powers contained in AR 8(z)(a)-(d) is consistent with, and adapted to, furthering this purpose.
26. AR 8(z)(a) empowers the stewards to suspend any licence, registration or privilege granted under the Rules to the accused person. It is apparent that the exercise of this power might halt completely or restrict the continued participation of the accused person in racing. In such a case, the stewards might have come to the view that a suspension would remove or mitigate an unacceptable risk, prejudice, or negative impact on the image, interests or integrity of racing.
27. AR 8(z)(b) is of similar intent. Prevention of a horse owned or leased by a person from participating in a race or official trial might well serve the dual objectives of controlling or regulating the continued participation of an accused person in racing and removing or limiting a risk, prejudice or negative impact on the image, interests or integrity of racing.
28. The third power given to the stewards under AR 8(z)(c) is to order that any registration of the transfer of ownership and/or training of a horse related to the accused person not be effected. Again, it is clear how such an order might well achieve the same objectives.
29. The fourth power given to the stewards under AR 8(z)(d) is to make any other direction or order related to the [accused person] which is in the interests of racing.
30. In my opinion, the same purposes embodied in AR 8(z), and therefore the same limitations on its application, apply to the power conferred by AR 8(z)(d) as they do to the preceding sub-clauses.
31. First, the exercise of the power contained in AR 8(z)(d) must relate to the continued participation of the accused person in racing. Secondly, an order made under AR 8(z)(d) must be directed at mitigating or removing the risk, prejudice or adverse effect on the image, interests or integrity of racing which would or might be caused by the continued participation of the accused person in racing. Further, there is a third, explicit, requirement before the power in AR 8(z)(d) can be exercised, namely that the direction or order that is made must itself be in the interests of racing. AR 8(z)(d) does not authorise any direction or order which is not objectively in the interests of racing.
32. This construction of AR 8(z)(d) is confirmed by the language of AR 8(z)(d) itself. The direction or order of which AR 8(z)(d) speaks must be related to the person. The person referred to is the accused person whose continued participation in racing is in question over the period from the preferment of charges to the hearing and determination of those charges.
33. In summary, before a direction or order under AR 8(z)(d) can be made six requirements must be satisfied:

(1) the person must be charged with the commission of an indictable criminal offence or with a breach of the Rules of Racing or a local rule of Racing Victoria;

(2) the stewards or RAD Board must be of the opinion, and resolve or find that the continued participation of the accused person in racing might pose an unacceptable risk to, prejudice or undermine the image, interests or integrity of racing;

(3) the direction or order made under AR 8(z)(d) must relate to the accused person, and the continued participation of the person in racing;

(4) the direction or order made under AR 8(z)(d) must relate to the removal, limitation or mitigation of the risk, prejudice or adverse effect on the image, interests or integrity of racing that would be occasioned by the continued participation of the accused person in racing over the period after the accused person is charged until the hearing and determination of the charges;

( 5) the direction or order made under AR 8(z)(d) must be, objectively looked at, in the interests of racing; and

(6) the direction or order made must be of an interim or interlocutory nature pending the hearing and determination of the charge(s) and not of a final or permanent nature.

Submissions by the parties

34. Racing Victoria submits (as had the stewards before the RAD Board) in summary, that:

(1) the nature of the offences is the receipt of a prohibited substance namely cobalt, a prohibited substance, if detected above the permissible limit;

(2) three of the charges alleged against the applicants are Serious Offences under the Rules. It is a very serious matter for a horse under the care of a trainer to receive a prohibited substance;

(3) the stewards’ brief and material shows that there is considerable lay and expert material going to the commission by the accused persons of the alleged offences;

(4) the continued participation of the applicants in racing attracts the highest public exposure and publicity; and

(5) retention of prize money is an appropriate exercise of the powers under AR 8(z).

35. The applicants in substance submit:

(1) the orders of the stewards and RAD Board are ultra vires, impose a penalty and are unreasonable;

(2) the offences alleged are strict liability, but not absolute liability offences;

(3) much of what is in the public arena is beyond the control of the applicants;

(4) much about cobalt in the public domain is inaccurate or misleading;

(5) Racing Victoria has had much to say on the issue by way of media comment;

(6) the imposition of the condition on the applicants could have severe business and financial consequences; and

(7) there is no authority for the proposition that the right to earn a profit from racing is not an absolute right.^[9]

Investigation by the stewards

36. Racing Victoria filed the stewards’ brief for each of the applicants. Having perused the briefs, it is clear that Racing Victoria has undertaken a lengthy and very comprehensive investigation into the circumstances surrounding the charges. The nature and extent of the investigation of these matters is such as to inspire confidence that any risk to the integrity of racing in Victoria has itself been obviated or minimised by the apparent identification of the persons from whom cobalt appears to have been sourced, and the means by which it may have been administered. It is not desirable for me to comment further on the apparent facts, the investigations by Racing Victoria, or the consequences of those investigations given the pendency of the hearing of the charges by the RAD Board.

Administrative decisions impounding income

37. The decisions made by the stewards and by the RAD Board have the effect of impounding the applicants’ share of prize money in Group and Listed races until the charges are determined. Lawyers are very familiar with the principal civil remedy of this nature, which is known as the Mareva injunction^[10] or a ‘freezing order’.^[11] These orders, in the Supreme and County Courts of Victoria, are now governed by a specific and detailed regime within the Rules and practice notes.
38. While the purposes of freezing orders in courts are very different from the purposes that underlie AR 8(z), the principles relating to freezing orders are well developed by the High Court of Australia and other courts, and have relevance by analogy to orders of a similar nature or character that may be sought of the RAD Board.
39. Some relevant principles are:

(1) a freezing order is an extraordinary, even ‘drastic’, interim remedy which should not be granted lightly;^[12]

(2) a freezing order operates as a very tight negative pledge and requires a high degree of caution;^[13] and

(3) a freezing order is not a means of providing security for a claim – its purpose is limited to preventing abuse of the process of the court by deliberate dissipation of assets before the satisfaction of judgment.^[14]

40. A corollary of this last point is that a freezing order is not an appropriate means of providing security for a prospective penalty that is to be imposed. Spender J considered this issue closely in Australian Competition and Consumer Commission v Chaste Corporation (No 1).^[15] Surveying a wide variety of domestic and foreign authority, his Honour wrote:

The third and most important aspect is that these orders are not sought in aid of rights presently existing at law or in equity, the vindication of which by the courts is compensatory or restitutionary. These orders are sought in aid of the preservation of assets which might be applied to meet any penalties that the Court might be minded to impose for breaches of [the Trade Practices Act] ...

In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, the High Court (Gleeson CJ, Gaudron, Gummow and Hayne JJ) held that where an interlocutory injunction is sought, it is necessary to identify the legal or equitable rights which are to be determined at the trial and in respect of which final relief is sought. ... In my judgment, in this case, the claim for the imposition of civil penalties for contravention of the Trade Practices Act ... does not involve any legal or equitable right in the ACCC. Neither does a claim that a respondent to proceedings for a civil penalty pay the costs of those proceedings.

...

In my opinion, there is a real distinction between there being a danger that a plaintiff if he gets judgment will not be able to get it satisfied, and a danger that a fine or penalty ordered to be paid will not be paid. Satisfaction of a judgment is not an apt way of describing the payment of a fine or civil penalty.^[16]

41. As I have observed above, the relationship created by the Australian Rules of Racing is essentially contractual instead of statutory. Putting to one side any possible interaction with the law regarding contractual penalties,^[17] these considerations nevertheless remain influential by analogy.

Decision

42. Having carefully considered the written and oral submissions of the parties, I have come to the conclusion that in exercising again the discretion originally vested in the RAD Board, the orders under AR 8(z) should not be made anew. I am of this view for the following reasons:

(1) a direction or order made under AR 8(z)(d) must relate to the continued participation of the accused person in racing. Here the order made does not restrain or affect the continued participation of the accused persons in racing – to the contrary, the accused persons are entitled to operate as trainers in races of all types, whether in Victoria or elsewhere, and not only in Group and Listed races but in races of all types. The accused persons are unrestricted by the order of the RAD Board in their participation in racing in or out of Victoria – the effect of the order is merely to restrict their access to the trainer’s share of prize money for Group or Listed races in Victoria for a limited period of time;

(2) the orders made do not restrain or restrict in any way the manner in which the applicant can participate in racing in Victoria or the techniques, standards, practices or processes that they might employ;

(3) although it was not suggested by Racing Victoria that there is any risk of repetition, the orders do not have the effect of removing, reducing or mitigating the risk (if any) of any repetition of the contravening conduct;

(4) the orders permit the applicants to continue training and racing horses in all races in and out of Victoria. It is hard to see on any objective basis how the orders can be said in these circumstances to advance or be directed at the image, interests or integrity of racing in Victoria;

(5) the quantum of the orders is entirely variable and is dependent on the prize money won by the applicants in Group and Listed races in Victoria. As at 10 November 2015, it stands at $660.00 and $17,022.50 (both including GST) for Mr Kavanagh and Mr O’Brien respectively. It is hard to see how retention of these sums has any bearing on the business operations and activities of the applicants as trainers of long standing;

(6) rather than the orders that have been made, it is much more important to the integrity and interests of racing in Victoria that the matters alleged are and have been actively and fully investigated by the stewards, and that the pending charges will be heard and determined in the near future. This fact will restore confidence in the racing industry in Victoria much more efficaciously and quickly than will the proposed orders, which leave the applicants unrestrained as to their continued operations and activities in the racing industry;

(7) even if at the conclusion of the hearing of the charges by the RAD Board, disqualification and penalties result (which is not for me to decide), the trainer’s share of the prize money must inevitably be repaid to the applicants. Racing Victoria and the RAD Board have no power or authority to treat these monies as security for any penalty that may be imposed; and

(8) for these reasons, I do not accept that the orders advance or are in the interests of racing in Victoria.

43. Even assuming that the orders of the RAD Board are within the power conferred by AR 8(z) which does not need to be finally determined, in the exercise of my discretion it is not appropriate, or in my view in the interests of justice, to make orders of the nature and character of those under appeal.

Conclusion

44. As a result, orders will be made in effect vacating the orders made by the RAD Board. The sums of $660.00 and $17,022.50 will be paid to the applicants. The charges against them will proceed for hearing on 30 November 2015 as directed by the RAD Board.

^[1] See, for example, Maund v Racing Victoria Limited [2015] VSCA 276 [6]; Clements v Racing Victoria Limited  (2010) VCAT 1144  [19]; and the unreported but widely referenced Galea v Harness Racing Victoria (Unreported, Victorian Civil and Administrative Tribunal, Judge Nixon, 3 September 2013) [12].

^[2] Regarding the nature of the Tribunal’s review jurisdiction generally, see Mond v Perkins Architects [2013] VSC 455 [10]; Von Hartel v Macedon Ranges Shire Council [2014] VSC 215 [50]; and by analogy with other tribunals exercising a merits review jurisdiction, Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 324-325 [134], 327-328 [140]-[142] (Kiefel J, Crennan J agreeing).

^[3] Clements v Racing Victoria Limited (Occupational and Business Regulation)  [2010] VCAT 1144. 

^[4] [2014] HCA 7; (2014) 251 CLR 640 (‘Electricity Generation Corporation’).

^[5] Ibid, 656-7 [35] (French CJ, Hayne, Crennan and Kiefel JJ) (citations omitted).

^[6] [2015] HCA 37.

^[7] Ibid [46]-[47] (French CJ, Nettle and Gordon JJ).

^[8] (1982) 149 CLR 337.

^[9] Relying on Nagle v Fielden [1966] 2 QB 633, 646; Buckley v Tutty [1971] HCA 71; (1971) 125 CLR 353, and Amoco Australia v Rocca Brothers [1973] HCA 40; (1973) 133 CLR 288.

^[10] Mareva Compania Naviera SA of Panama v Int Bulkcarriers SA [1975] 2 Lloyd’s Rep 509.

^[11] Supreme Court (General Civil Procedure) Rules 2005 O 37A.

^[12] Zhen v Mo [2008] VSC 300 [22]; LexisNexis Butterworths, Civil Procedure: Victoria, Williams’ Civil Procedure Victoria, vol 1 (at Service 292) (‘Williams’’) [I 37A.01.20].

^[13] In Cardile v LED Builders Pty Ltd [1999] HCA 18; (1999) 198 CLR 380, 403, Gaudron, McHugh, Gummow and Callinan JJ said:

It has been truly said that a Mareva order does not deprive the party subject to its restraint either of title to or possession of the assets to which the order extends. Nor does the order improve the position of claimants in an insolvency of the judgment debtor. It operates in personam and not as an attachment. Nevertheless, those statements should not obscure the reality that the granting of a Mareva order is bound to have a significant impact on the property of the person against whom it is made: in a practical sense it operates as a very tight "negative pledge" species of security over property, to which the contempt sanction is attached. It requires a high degree of caution on the part of a court invited to make an order of that kind. An order lightly or wrongly granted may have a capacity to impair or restrict commerce just as much as one appropriately granted may facilitate and ensure its due conduct.

^[14] National Australia Bank Ltd v Bond Brewing Holdings [1991] VicRp 31; [1991] 1 VR 386, 554; Williams’ [I 37A.01.25].

^[15] [2003] FCA 195; (2003) 127 FCR 433 (‘ACCC v Chaste’).

^[16] Ibid 425-6 [21]-[22], [26] (citations omitted).

^[17] In this regard, see Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1914] UKHL 1; [1915] AC 79.