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Smerdon v Racing Victoria Ltd (Review and Regulation) [2019] VCAT 1372 (13 September 2019)

Last Updated: 13 September 2019

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

ORDER

Preliminary Ruling

1. The Tribunal finds that the Racing Appeals and Disciplinary Board (“the RAD Board”) had jurisdiction to hear and determine the charges laid against Mr Smerdon such that Mr Smerdon’s application to have the decision of the RAD Board set aside on jurisdictional grounds is dismissed.

REASONS

General background

1. On 9 January 2018, Mr Robert Smerdon was charged by Stewards of Racing Victoria Ltd (“Racing Victoria”) with breaching AR 175(a) of the Rules of Racing of Racing Victoria (“the Rules”).
2. Racing Victoria contended, and the Racing Appeals and Disciplinary Board (“the RAD Board”) subsequently found, that during the period 26 June 2010 to 7 October 2017 Mr Smerdon was a party to the administration of alkalinising agents and/or medications to a horse or horses on a race day.
3. AR 175 empowered the Stewards to penalise:
   • (a) Any person, who, in their opinion, has been guilty of any dishonest, corrupt or fraudulent, improper or dishonourable action or practice in connection with racing.
4. The RAD Board also found that on 8 October 2010, Mr Smerdon instructed Mr Gregory Nelligan to administer Vicks to the horse Disco Dan and that thereafter at 4:30 pm Mr Nelligan did so.
5. AR 178E relevantly provided that:

no person without the permission of the Stewards may administer or cause to be administered any medication to a horse on race day prior to such horse running in a race.

6. There is no dispute that Mr Smerdon was a trainer licensed by Racing Victoria for the entirety of the period 26 June 2010 to 7 October 2017, being the period of the charges. During this period, he was clearly required to abide by the Rules.
7. There is also no dispute that Mr Smerdon was a trainer licensed by Racing Victoria on 9 January 2018 when the charges were laid against him by Racing Victoria.
8. However, by email dated 29 March 2018, Mr Smerdon gave notice that “he hereby surrenders his Licence effective immediately”.
9. The question for my determination in this preliminary jurisdictional hearing is whether the charges brought against Mr Smerdon were able to be heard and determined by the RAD Board after Mr Smerdon surrendered (or attempted/purported to surrender) his licence on 29 March 2018.
10. In other words, could Mr Smerdon escape the disciplinary hearing and subsequent sanctions by surrendering his licence after charges were laid but before they were heard and determined?

The Rules

11. The Rules have effect under both contract law and under statute. How this comes about was succinctly articulated by his Honour Justice Garde in Kavanagh v Racing Victoria Ltd (Review and Regulation) [2017] VCAT 386 as follows:
    • [600] In Myers v Casey [(1913) [1913] HCA 50; 17 CLR 90], the High Court described the Rules of Racing as a contract between the parties. A contract is only valid and binding on the parties to the contract. In Clements v Racing Victoria Ltd [[ 2010] VCAT 1144 ], the Tribunal held that a punter was not bound by the Rules of Racing. He was not a licensed person and had not agreed to be bound by the Rules.
    • [601] As a result of this decision, s 5F was inserted into the Racing Act 1958 (Vic) (“Racing Act”) affording statutory recognition to the Rules of Racing and extending their operation to persons attending a race meeting or participating in an activity in connection with or involving horseracing or wagering on horseracing. [footnote omitted]
    • [602] The result is that the Rules of Racing have effect both under contract law and under statute. Both the principles of statutory construction and the principles governing the construction of contracts may assist in construing the Rules of Racing. [footnote omitted]

Mr Smerdon contends:

12. That he could unilaterally surrender his licence. There was nothing in the Rules to prevent him from doing so.
13. He did surrender his licence.
14. Racing Victoria accepted (or at least did not resist) Mr Smerdon’s licence surrender, evidenced by its show-cause notice dated 30 March 2018.
15. The effect of the surrender was that Mr Smerdon was no longer a licensed person.
16. He was accordingly no longer bound under contract by the Rules.
17. He no longer consented to be bound by the Rules. He was not subject to the Rules at the time the Rules were purportedly enforced against him.
1. Although historically AR 2^[1] (and the Local Rules of Racing (“LR”) LR 3) were said to bring unlicensed individuals within the Rules, following Clements v Racing Victoria Limited (Occupational and Business Regulation)  [2010] VCAT 1144  (“Clements”), the door closed on that interpretation.
19. The only way in which Mr Smerdon could be bound by the Rules was under section 5F(1) of the Racing Act 1958. This provision, and this provision alone, deals with the circumstances which must exist to render a person bound by the Rules. However, Mr Smerdon is neither the holder of a licence nor is he a “relevant person” for the purposes of section 5F(1).
20. Mr Smerdon is therefore not a person bound by operation of section 5F(1) of the Racing Act 1958.
21. In drafting section 5F, the legislature had ample, unrestricted opportunity to extend the operation and enforceability of the Rules to cater for those who, like Mr Smerdon, had surrendered their licence. It chose not to do so.
22. Recent amendments to the Racing Act 1958, particularly the insertion of section 37BA(1)(g), reinforce the view that the legislature did not intend to bind individuals who had surrendered their licences.
23. Strict interpretation of legislative provisions must be applied where it is sought to impose laws or rules that seriously infringe upon rights and freedoms.

Racing Victoria contends:

24. There was no power for Mr Smerdon to surrender his licence.
25. Mr Smerdon did not surrender his licence.
26. Mr Smerdon’s purported surrender of his licence was of no effect, the surrender not having been accepted by Racing Victoria.
27. The 30 March 2018 letter from Racing Victoria to Mr Smerdon said nothing to the effect that the Stewards accepted Mr Smerdon’s purported surrender or that the surrender was of any legal effect. Instead, it confirmed that the Stewards were considering exercising certain powers under the Rules in respect of Mr Smerdon.
28. Mr Smerdon was able to be charged and dealt with under contract law (via the Rules themselves) and/or by virtue of statute – section 5F(1) of the Racing Act 1958.
29. The jurisdiction to lay the charges and subsequently hear and determine the matter was triggered by:
    • (a) force of the contractual relationship that existed at the time; and/or
    • (b) the provisions of the Racing Act 1958, specifically section 5F.

Questions arising for determination
Could Mr Smerdon surrender his licence?

30. Quite simply, Mr Smerdon contends that the contract between him and Racing Victoria was terminated (by agreement).
31. Racing Victoria contends that there is nothing in either the Rules or the Racing Act 1958 which provide for a member to surrender his licence. Nor says Racing Victoria, is there provision for Racing Victoria to accept any such surrender.
32. At the relevant time, LR 35A(6) dealt with the revocation of a licence and read as follows:

Revocation: The Directors may, at any time, revoke or vary the terms of a licence to train granted by them, including, without limitation, where the holder of the licence:

(a) is not actively using the licence; or
(b) ceases to meet the requirements to be granted a licence in accordance with the Rules and the Racing Victoria Training Licensing Policy referred to at LR 35A(3); or
(c) breaches any term or condition on that person’s licence to train.

33. LR 35A(7) set out the term of a licence. It reads as follows:

Term of licence: All licences to train expire on the 31 July next after issue unless:

(a) revoked in accordance with LR 35A(6);
(b) cancelled;
(c) suspended;
(d) disqualified; or
(e) otherwise provided for in the terms and conditions of a trainer’s licence.

34. LR 35D(4)(a) required a trainer to notify Racing Victoria in the event that he ceases to train.

Findings

35. I agree with the submissions of Racing Victoria.
36. The Rules are explicit about how and when a licence comes to an end. They do not provide for its surrender.
37. I agree with Racing Victoria that Mr Smerdon did not have an inherent right to surrender his licence simply because he no longer liked the consequences which flowed from holding it.
38. He was licensed during the term of his licence/contract. He could not simply rip up the contract/licence and say that he was no longer bound by anything that he had done whilst under contract/licence. I am satisfied that he was bound by the Rules in relation to any relevant activity that took place during the time that he was licensed under the Rules.
39. He was not entitled to relinquish his licence to avoid consequences under the licence. A right to be licensed does not carry with it an automatic right to relinquish or surrender the licence.
40. There is no reason to infer into either the Racing Act 1958 or the Rules such a provision. To the contrary, there is good reason why such a provision should not exist. It would enable an individual to breach the Racing Act 1958/Rules with abandon in the knowledge that he/she could avoid any penalty or other consequences through the surrender of his/her licence. The regulatory effect of the Racing Act 1958 and the Rules would be rendered nugatory.

Conclusion

41. I agree with the submission of Racing Victoria that Mr Smerdon could not unilaterally surrender his licence. He was not able to and did not do so.
42. This then potentially concludes the matter. Mr Smerdon’s request to have the RAD Board decision set aside on the basis that the RAD Board lacked the jurisdiction to hear the case fails at this point. I nevertheless address the other possibilities contended for by Mr Smerdon.

Did Racing Victoria accept Mr Smerdon’s (purported) surrender of his licence?

43. Even if Mr Smerdon could surrender his licence, I have not been persuaded that Racing Victoria either accepted that surrender or conveyed any such acceptance to him.
44. The 30 March 2018 letter (relevantly) reads as follows:

Charges against Mr Robert Smerdon

We refer to the charges laid against your client, Robert Smerdon, on 9 January 2018.

Subsequent to the laying of the charges, your client agreed to stand down following a discussion with the Chairman of Stewards. Your client’s situation has now changed.

Your client on 29 March 2018 informed Racing Victoria that he surrendered his licence to train.

Subsequently it has been widely reported in the media that he does not intend to appear or participate in any capacity at the RAD Board hearing. We invite you to inform us urgently if these reports are inaccurate.

In light of these developments, the Stewards now intend to revisit the conditions to be attached to your client’s on-going involvement with Victorian racing.

Your client is now requested to show cause why the Stewards ought not stand him down on the basis of the conditions set out below, pending the hearing and determination of the charges.

45. I am satisfied that Racing Victoria made it perfectly clear at all times to Mr Smerdon that it intended to continue with the charges against him.
46. There was certainly no indication or concession given to Mr Smerdon that a surrender would abrogate his obligation to face a hearing of the charges already laid against him. I am not satisfied that Mr Smerdon’s endeavours to surrender his licence were accepted by Racing Victoria.

If Mr Smerdon had surrendered his licence, could he avoid disciplinary action?

47. Even if Mr Smerdon had surrendered his licence, I do not agree that the consequences of doing so were that Mr Smerdon thereby escaped disciplinary action. I agree with the submissions of Racing Victoria that a termination by Mr Smerdon of his contractual relationship with Racing Victoria could not in any event affect the parties’ accrued contractual rights and obligations in relation to the disciplinary charges.
48. Whether Mr Smerdon was able to be disciplined under the Rules requires an analysis of the contractual arrangements between the parties.
49. Mr Smerdon was charged under LR 6C(2) which provided that “The Stewards may charge persons with a Serious Offence (or Serious Offences) referred to in LR 6C(1)”.
50. Each of the offences with which Mr Smerdon was charged was a Serious Offence. Where the Stewards have decided to lay a charge against a person pursuant to LR 6C(2), LR 6C(3) stated that they must provide the person with a notice of charge and the evidence to be relied upon. The Stewards must also provide that material to the Registrar of the RAD Board. After receiving those materials, LR 6C(4) required that the Registrar provide notice of the hearing date.
51. Under LR 6A(2)(e), one of the functions of the RAD Board was to hear and determine charges laid by the Stewards pursuant to LR 6C(2).
52. Following a hearing, the RAD Board powers then extended to imposing penalties.
53. His Honour Justice Garde in Kavanagh at [603] adopted the following words of French CJ, Nettle and Gordon JJ in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104, who said:

The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.

In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable business person would have understood those terms to mean. That enquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.

54. I was referred by Racing Victoria to a number of relevant authorities in which disciplinary bodies continued to have jurisdiction over a charged person even once that individual had resigned or surrendered his/her membership.
55. In R v Wilson; ex parte Robinson [1982] Qd R 642 (“Wilson”), a complaint was made against an architect who was a member of the Royal Australian Institute of Architects Queensland Chapter (“Institute”). While the matter was before the Institute’s disciplinary committee, the architect resigned his membership. The Full Court rejected the suggestion that the architect’s resignation deprived the disciplinary committee of jurisdiction to proceed to hear the complaint. In doing so, the Full Court stated at 646G-647E that it was:

not persuaded that there is any substance in the submission that the authority of the Disciplinary Committee, as a matter of contract came to an end with the [architect’s] resignation from the Institute.

...

It is clear in my judgement that a person who is a member when the report which initiates the disciplinary machinery is received by the Institute has contracted that he will submit to the progressive steps provided for by the article and that his subsequent resignation can have no effect upon that contractual submission.

56. Significantly, the Full Court also noted that acceptance of the architect’s argument would have the unsatisfactory consequence at 647C that:

he might sit through the hearing as a member and avoid the ultimate determination by resigning at the last moment or could even hear a determination of misconduct and avoid an order for costs by then resigning.

57. Mr Smerdon unsuccessfully sought to distinguish Wilson. He emphasised that the context was in relation to a disciplinary body with no legislative or statutory function. I disagree. I agree with Racing Victoria that the principles in Wilson were readily applicable to this case.
58. Contracts create obligations and liabilities which do not simply end when the term of the contract ends. Termination of a contract may mean no further liabilities accrue, but this does not relieve an individual of accrued obligations under the contract.
59. I am satisfied that the only sensible way in which the Rules can be construed is that Mr Smerdon contractually agreed that if he engaged in prohibited conduct whilst a licensed trainer, Racing Victoria could penalise him.
60. No reasonable and objective interpretation of the Rules surrounding racing would lead to the conclusion that either party could avoid compliance with their obligations under contract just by allowing the term of the contract to expire/surrendering the licence.
61. Racing Victoria could not for example unilaterally refuse to pay Mr Smerdon any accrued prize money at the expiration (for whatever reason) of his licence.
62. The Rules play an important role in maintaining the confidence of the public in the integrity of racing.
63. On any reading of the Rules, there is an expectation that appropriate action will be taken against those alleged to have breached those Rules.
64. Effective disciplinary action is a necessary part of the regulation of racing. It is necessary that the associated regulatory authorities are able to investigate and hold to account those who hold themselves out as a member of a recognised body at the time of the conduct alleged against them.
65. It would run contrary to these principles if an individual could escape penalty by simply surrendering his status. It would defeat the object of the disciplinary rules.
66. The integrity of the racing industry would be undermined by such an interpretation.
67. Any charges not heard and determined by 31 July of each year would be expunged. Offences committed on 30 July of each year would have no chance of prosecution. Individuals could simply walk away from serious misconduct charges, without any stain on their name or career.
68. I agree with Racing Victoria that this would be a perverse interpretation of the contractual terms.
69. I am satisfied that no reasonable person would construe the Rules to operate in this way.
70. Mr Smerdon has, over the years, enjoyed the rights and privileges conferred by those Rules. He cannot avoid their operation when they work against his preferred interests.
71. I am satisfied that for the purpose of disciplinary proceedings, Mr Smerdon remained contractually bound by the Rules and that the contractual right to pursue the charges to their conclusion did not cease with any (purported) surrender by Mr Smerdon of his licence.
72. It may of course be that any disciplinary action which could thereafter be enforced against him was more limited than if he held a licence.
73. Mr Smerdon contends that this is relevant because even if found guilty, given he has no licence to disqualify, the best outcome of the rule enforcement is to warn him off.
74. I disagree with that submission. I agree with the submissions made on behalf of Racing Victoria that disciplinary findings have broader consequences. They have not only a specific, but a general deterrent effect and play an important role in protecting the integrity of racing as a whole through published findings and determinations.
75. Before closing, on this point I will briefly note that Mr Smerdon placed some reliance on the previously referenced decision of Clements in which it was held that Mr Clements, a professional punter who was not licensed by Racing Victoria, was not subject to the Rules.
76. Mr Smerdon cannot rely on this decision.
77. Mr Smerdon’s position is vastly different to that of Mr Clements. In the Clements case, it is clear that the Rules were purporting to bind someone who was not technically/contractually bound by them. Mr Smerdon was however at all relevant times a licensed trainer. Mr Clements was not. Mr Smerdon’s status as a licensed trainer meant that he agreed to be bound by the Rules. He agreed that he could be penalised for any breach occurring during the period of his licence. Mr Clements did not.
78. Mr Smerdon was covered by the Rules on the dates of the alleged conduct when the notice of charges were served.
79. Mr Clements was not a licensed person.
80. In the absence of a contractual relationship, jurisdiction did not exist.
81. The Clements case is readily distinguishable from that of Mr Smerdon. I accept that Mr Smerdon was not forever bound by the Rules. He was nevertheless bound, during the period in which he was licensed with respect to the conduct alleged whilst lisenced.

Does the insertion of section 5F of the Racing Act 1958 lead to a different conclusion?

82. I turn then to Mr Smerdon’s contention that the only way in which the Rules of Racing could be binding upon him was in accordance with the provisions of section 5F(1) of the Racing Act 1958.
83. After the Clements case, the Racing Act 1958 was amended by the Justice Legislation Amendment (Miscellaneous) Act 2013. Its objective was to bring an end to the situation which allowed Mr Clements to avoid the jurisdiction of the RAD Board.
84. The insertion of section 5F(1) into the Racing Act 1958 clearly makes the Rules binding on certain persons. It provides:
    • (1) The Rules of Racing apply to and may be enforced against⸺
      • (a) a person who is the holder of a licence, registration, permit or other authority issued by Racing Victoria, or
      • (b) subject to subsection (2), a relevant person.
85. Section 5F(2)(a) and (b) sets out the criteria in relation to investigations relevant to relevant persons^[2] which is not of significance for the purpose of this preliminary jurisdictional hearing.

Is Mr Smerdon the holder of a licence issued by Racing Victoria for the purposes of section 5F(1)(a) of the Racing Act 1958?

86. Mr Smerdon emphasises that in section 5F(1), the word “is” is used. It is not he says for this Tribunal to attempt to “cure” the clear and unambiguous meaning.
87. Mr Smerdon contends that the word “is” in section 5F(1)(a) must be given its natural strict temporal meaning. In doing so, he adopts a literal rule of construction. He says that as at 30 April 2018, when the RAD Board hearing commenced, he was no longer a person who is the holder of a licence. He is a person who was a holder of a licence. His past status cannot he says, bring him within the reach of the section.
88. Mr Smerdon contends that under section 5F(1)(a), only individuals who hold a licence are bound by the Rules. Individuals who do not hold licences may be bound under section 5F(1)(b), but only if they are a “relevant person”.
89. Mr Smerdon contends that he is neither. The wording is clear and unambiguous.
90. He contends that it would be simple to have drafted the section in a manner that made it clear that an individual remained bound by the Rules notwithstanding any change in their licence status, but the legislature chose not to do so.
91. Racing Victoria submits that the use of the word “is” in section 5F(1)(a) does not have the temporal significance ascribed to it by Mr Smerdon. Racing Victoria contends that in numerous cases, Courts and Tribunals have rejected submissions that the word “is” in a statute requires the continuation of a condition as at the date the Court or Tribunal exercises its jurisdiction. It was submitted by Racing Victoria that such an interpretation would result in a nonsensical outcome and defeat of the legislative purpose.
92. Racing Victoria urged me to take a purposive approach in accordance with section 35 of the Interpretation of Legislation Act 1984 which sets out principles of and aids to interpretation of legislation and says (relevantly):

In the interpretation of a provision of an Act or subordinate instrument⸺

(a) a construction that would promote the purpose or object underlying the Act or subordinate instrument (whether or not that purpose or object is expressly stated in the Act or subordinate instrument) shall be preferred to a construction that would not promote that purpose or object ...

93. It was submitted by Racing Victoria that the purpose of section 5F would be avoided if a strict literal construction of the word “is” were adopted. Mr Smerdon (or any other individual in his position) could evade sanction by resigning his/her position and then relying upon the strict literal construction of the word “is” in section 5F(1)(a). Once again, Racing Victoria submits, this would lead to nonsensical outcomes.
94. I was referred by Racing Victoria to the following passage in Mills v Meeking (1990) 160 CLR 214 at 235 where Dawson J said:

However, the literal rule of construction, whatever the qualifications with which it is expressed, must give way to a statutory injunction to prefer a construction which would promote the purpose of an Act to one which would not, especially where that purpose is set out in the Act. Section 35 of the Interpretation of Legislation Act must, I think, mean that the purposes stated in the [relevant part of the Act] are to be taken into account in construing the provisions of that Part, not only where those provisions on their face offer more than one construction, but also in determining whether more than one construction is open. ... The approach required by s 35 needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done.

95. Mr Smerdon countered that it was for the legislature to rectify adverse outcomes.

Conclusion

96. I agree with the submissions of Racing Victoria that the use of the word “is” in section 5F(1)(a) does not have the temporal significance ascribed to it by Mr Smerdon.
97. I also agree with the observations of the RAD Board that:

Many statutory provisions are expressed in the present tense-for example, various offences pursuant to the Crimes Act. In the present case, a somewhat ridiculous situation would result if the section was interpreted to the effect that it did not apply to past conduct. Detection of the offence, apprehension of the offender and the like would all have to take place as the offence was being committed.

98. I do not consider that the construction contended for by Racing Victoria does any violence to the language of the statute. The construction is consistent with and gives effect to its underlying purpose.
99. Courts and Tribunals do not construe statutes in a manner that leads to unintended or nonsensical outcomes on the basis that those outcomes can be amended by Parliament.
100. Where there is (alleged) ambiguity, this Tribunal must construe statutes so as to lead to outcomes which promote the purpose of the legislation and are sensible.
3. The powers of the Stewards and RAD Board would (to quote the words of his Honour Judge Macnamara) be rendered nugatory or too easily avoided if Mr Smerdon could avoid them through the simple act of surrendering his licence.^[3]

Is Mr Smerdon a “relevant person” bound by the Rules for the purposes of section 5F(1((b)?

102. Racing Victoria contends that by virtue of his participation in the training of racehorses and attendance in race meetings during that period, Mr Smerdon was also a relevant person subject to the Rules.
103. Section 3 of the Racing Act 1958 defines a “relevant person” as:
     • (a) a person who attends a race-meeting for the purpose of horse racing in Victoria, or
     • (b) a person who participates, whether at a racecourse or any other place, in an activity connected with, or involving, horse racing in Victoria or wagering on horse racing in Victoria ...
104. During the period of the allegations and charges, the Rules applied to Mr Smerdon. Mr Smerdon was clearly a relevant person during the period of the allegations and charges.
105. The introduction of the concept of a relevant person extends to persons not necessarily contractually tied to Racing Victoria. It extends jurisdiction to other persons participating in an activity connected with racing, however fleeting or casual that activity may be.
106. I am satisfied that Mr Smerdon is also a relevant person.
107. I am satisfied that he was at the time of the alleged conduct and at the time he was charged and at the time the charges were heard and determined by the RAD Board.

Amendments to Racing Act 1958

108. Finally, Mr Smerdon took me to the (now enacted) Racing Amendment (Integrity and Disciplinary Structures) Act 2018, which was assented to on 21 August 2018. It amends the Racing Act 1958 in a number of respects.
109. The amendments ensure that persons cannot avoid questioning by the Racing Integrity Commissioner due to disqualification or because they have handed in their licence. Mr Smerdon contends that the circumstances of an inquiry are analogous to those of the hearing before the RAD Board such that if it were intended that an individual who had surrendered his/her licence was bound by section 5F(1), the section would have been amended so as to read in the same terms as section 37BA(2)(g).
110. I disagree.
111. I agree with the submission of Racing Victoria that section 37BA(2)(g) has nothing to do with section 5F, operating as it does within a different context and appearing in a different part of the Racing Act 1958.
112. Section 37BA deals with the Racing Integrity Commissioner. I am not prepared to make the presumption, as I was asked to do by Mr Smerdon that interpretation of each part of the Racing Act 1958 is or needs to be, consistent across the entirety of the Racing Act 1958, where there is no inherent inconsistency.
113. In this case the subject matter is very different. Section 5F identifies persons to whom the Rules apply by statutory force. It identifies individuals who by statute have rights and obligations contained within the Rules conferred and imposed on them. Such persons may be disciplined by the Stewards or the RAD Board. I agree with the submissions of Racing Victoria that there are strong reasons for interpreting section 5F as providing for the enforcement of Rules against such persons irrespective of whether they have since ceased to be the holder of a licence and/or are a relevant person.
114. Conversely, section 37BA(2)(g) of the Racing Act 1958 relates to the coercive powers exercisable by the Racing Integrity Commissioner and in respect of whom certain ancillary provisions apply, as set out in sections 37BB to 37BJ. Those powers relate to the conduct of an inquiry or investigation by the Racing Integrity Commissioner. The individuals referred to in section 37BA(2) may never have had any relevant obligations, such as those contained within the Rules, imposed on them. Some may be mere third parties to an inquiry into some other person or body.
115. I was not assisted in reading section 37BA(2)(g) in my interpretation of section 5F. Caution must always be taken in construing existing legislative provisions by reference to later amending legislation particularly with respect to a different provision in a different part of the statute dealing with different subject matter.

Conclusion

116. In circumstances where Mr Smerdon was licensed at the time of each of the allegations and the laying of the charges, I am comfortably satisfied that both the Racing Act 1958 and Rules of Racing conferred jurisdiction on the Stewards to lay charges and thereafter the RAD Board to make findings and determinations with respect to those charges.
117. I am satisfied that the RAD Board had jurisdiction on 30 April 2018 to hear and determine the matter.
118. I will not set aside the decision for want of jurisdiction.
119. I am satisfied that Mr Smerdon could not avoid the RAD Board disciplinary hearing and resultant sanctions by surrendering his licence prior to the hearing.
120. I will affirm the decision of the RAD Board that it had jurisdiction to hear and determine the charges laid against Mr Smerdon and the applicant’s application to have the decision of the RAD Board set aside on jurisdictional grounds will be dismissed.

1. ^[1] AR 2 reads:

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

Mr Smerdon takes no issue with AR 2. He agrees that when he was licensed, he agreed to be bound by the Rules. In his detailed submissions he traced the history of its early interpretation back to the Privy Council decision of Stephens v Naylor [1937] NSWStRp2; [1937] NSWStRp 2; (1937) 37 SR (NSW) 127 which endorsed a wide interpretation of the application of AR 2.

2. ^[2] It was not disputed by Mr Smerdon that each of the requirements set out in section 5F(2)(a) and (b) had been satisfied, in that the investigation and inquiry was carried out by the Stewards in circumstances where they had the reasonable grounds referred to in section 5F(2)(b). The relevant provisions read as follows:
   • (2) In relation to a relevant person, the Rules of Racing must provide that, if there is to be an investigation or inquiry in relation to horse racing or wagering or both under the Rules of Racing in which the Rules of Racing may be applied or be enforced against a relevant person⸺
     • (a) the investigation or inquiry must be initiated by a Steward; and
     • (b) in conducting the investigation or inquiry, the Steward must have reasonable grounds to suspect the relevant person⸺
       • (i) may have contravened the Rules of Racing; or
       • (ii) may be involved in a contravention of the Rules of Racing; or
       • (iii) may have knowledge or possession of information as to a contravention of the Rules of Racing⸺

because of⸺

(iv) the person’s attendance at a race meeting of horseracing in Victoria; or
(v) the person’s participation in an activity in connection with or involving horse racing in Victoria or wagering on horse racing in Victoria.

3. ^[3] For other examples of where the Tribunal has rejected the notion that an individual can evade sanction by resigning position and relying on a strict literal construction of the word “is”, see Ross v Planet Platinum Limited (Occupational and Business Regulation) [2012] VCAT 1670.