Intro
It is with pleasure that I present the Racing Penalties Appeal Tribunal Annual Report for the year ended 30 June 2024.
The Tribunal has once again experienced significant changes to its membership during the reporting period. The term of former member, Andrew Monisse, expired on 30 September 2023. Andrew was first appointed to the Tribunal in March 1997 and had served with distinction for over 26 years. Andrew’s dedicated support and wise counsel was invaluable and on behalf of the Tribunal I wish him all the best in his endeavours.
The Tribunal also welcomed two new members, Benjamin Willesee and Kelly Zhang, who were appointed in December 2023.
The Tribunal has observed that there is a tendency for appellants to view the Tribunal as an opportunity to conduct a hearing de novo where the merits of the case will be considered and determined by the Tribunal afresh. This is a misunderstanding of the Tribunal’s jurisdiction. In the large majority of appeals, the Tribunal is reviewing discretionary decisions of the Stewards upon the evidence that was before the Stewards. The approach that the Tribunal is required to take in such cases was the subject of analysis by Murray J in Danagher v Racing Penalties Appeals Tribunal (1995) 13 WAR 531 at 554. The Tribunal is to approach the matter in the same way as appellate courts review discretionary judgments of lower courts.
It is worth emphasising that when reviewing penalties imposed by the Stewards, the Tribunal will not substitute its own opinion for that of the Stewards simply because it may have exercised the discretion differently. The Tribunal must be satisfied that there has been an error on the part of the Stewards in the sense referred to above. The Stewards’ deep understanding of the industry and how actions of its participants impact the industry and perceptions of the industry, are matters which are accorded considerable weight by the Tribunal.
I thank the Tribunal members for their support over the last year and their commitment and dedication to their role.
I also thank the State Administrative Tribunal for the continued use of their facilities to conduct hearings. Their ability, flexibility and willingness to cater to the Tribunal’s needs is greatly appreciated.
Finally, I thank the Registrar of the Tribunal, Steve Spallarossa, and the staff of the Department of Local Government, Sport and Cultural Industries, for their wonderful support and provision of executive services. Their dedication, professionalism and commitment ensuring the Tribunal continues to meet its corporate, financial and legal obligations, are vital to the ongoing effective operations of the Tribunal.
Robert Nash Chairperson10 September 2024
The Racing Penalties Appeal Tribunal (the Tribunal) is established under the Racing Penalties (Appeals) Act 1990 (the Act). The Tribunal was established to confer jurisdiction in respect to appeals against penalties imposed in disciplinary proceedings arising from, or in relation to, the conduct of thoroughbred racing, harness racing and greyhound racing, and for related purposes.
As at 30 June 2024, the Minister responsible for the Racing and Gaming Portfolio is Hon. Paul Papalia CSC MLA, Minister for Police; Corrective Services; Racing and Gaming; Defence Industry; Veterans Issues.
The aim of the Act is to create and maintain industry confidence in the enforcement of the various racing rules by providing an impartial judicial forum for the hearing of appeals.
Executive support for the Tribunal is provided by the Department of Local Government, Sport and Cultural Industries (the DLGSC). The DLGSC recoups the cost of providing these services from the Tribunal through a service level agreement, which is funded by Racing and Wagering Western Australia (RWWA).
A person who is aggrieved by a determination of RWWA, a steward or a committee of a racing club may appeal to the Tribunal within 14 days of the determination date. The Tribunal can hear the following matters:
Additionally, the Tribunal may grant leave to appeal in relation to a limited range of other matters.
The jurisdiction of the Tribunal does not extend to a determination of a steward, a racing club, or a committee in matters regarding:
These matters are dealt with by RWWA.
The Tribunal is required to hear and determine an appeal based on the evidence of the original hearing but may allow new evidence to be given or experts to be called to assist in its deliberations.
When determining an appeal, the Tribunal may make the following orders:
Decisions of the Tribunal are final and binding.
Sections 5 and 6 of the Act provide that the Tribunal shall consist of a chairperson and a panel of members, each appointed by the Minister. The Schedule to the Act specifies terms of appointment shall not exceed three years, with eligibility for reappointment. The Tribunal, constituted by the chairperson (or the acting chairperson or member presiding) and two members sitting together hear appeals. An appeal may be heard by the chairperson, acting chairperson or member presiding sitting alone where the Regulations so provide.
As of 30 June 2024, the Tribunal consisted of six members.
Mr Nash was appointed chairperson in August 2022. He is a barrister admitted as a practitioner of the Supreme Court of Western Australia and the High Court of Australia, and is a General Public Notary. Mr Nash has, during the course of his career, served in a non-executive capacity on several councils, committees, and charitable and non-charitable boards, including Chairman of Australian Silica Quartz Group Limited, Councillor for the Town of Mosman Park, Chairman of the WA Soccer Disciplinary Tribunal, Council Member of the Law Society of WA, Convenor of the Education Committee of the Law Society of WA, Counsel Assisting the Royal Commission into the City of Wanneroo, Member of the Professional Conduct Committee and Ethics Committee of the Law Society of WA, Head of the WA Legal Panel of the Royal Australian Navy, and Council Member of the WA Bar Association Council.
Mr Overmars was appointed to the Tribunal in March 2018. She holds a Bachelor of Laws and Bachelor of Arts from the University of Notre Dame Australia and was admitted as a Barrister and Solicitor of the Supreme Court of WA in 2005. Ms Overmars has had a varied career working for Legal Aid Western Australia, Women’s Legal Service WA and in private practice in the areas of Family Law, Criminal Law, Restraining Orders and Wills and Estates. Ms Overmars ran her own firm, Hills Hope Legal Pty Ltd in Mundaring for six years, until closing it to have her family. She currently works at Corinne Griffin and Co where she practices in the Wills and Estates and Family Law teams. Ms Overmars is a horse owner, who has a keen interest in horsemanship.
Mr Gleeson was appointed to the Tribunal in August 2022. He is a founding Director of Percy Kakulas Gleeson Injury Lawyers. He specialises in all aspects of plaintiff litigation, advocacy and advice across medical negligence, historical sexual abuse, work and industrial accidents and disease, motor vehicle accidents, product liability, and superannuation and group insurance claims. He is listed by the prestigious Doyles Guide as a leading lawyer for work injury compensation nationally as well as in Western Australia, and for medical negligence, motor vehicle accident and public liability compensation in Western Australia.
Ms Sinton was appointed to the Tribunal in August 2022. She completed a Bachelor of Science and Master of Forensic Science before graduating with a Bachelor of Laws with Honours in 2007. Ms Sinton was a Judge’s Associate at the Court of Appeal for two years before commencing as a solicitor in the Criminal Law Division at Legal Aid in 2010, initially in the Duty Lawyer team. In 2012 she joined the Criminal Appeals team, where she remains to this day. Ms Sinton was the Secretary of the Criminal Lawyers’ Association from 2015 to 2019 and is an accredited mediator.
Mr Willesee was appointed to the Tribunal in December 2023. He works at Francis Burt Chambers where he practices in commercial litigation and arbitration. He has acted for clients in disputes in State and Federal courts, administrative tribunals, international and domestic arbitrations as well as a range of alternative dispute resolution procedures. He has a broad commercial practice with experience in high value, complex disputes arising out of the energy, resources, transport and infrastructure sectors. Prior to joining the Bar, Mr Willesee was a Senior Associate in the dispute resolution team of Ashurst in Perth and London. He had previously been Associate to the Hon Justice Pritchard at the Supreme Court of Western Australia.
Mr Zhang was appointed to the Tribunal in December 2023. She is a barrister at Francis Burt Chambers in 2023, where she accepts briefs on a wide range of matters, with recent experience in commercial litigation, especially construction matters. She has acted on matters concerned with insurance claims, class actions, white collar and corporate crime, family property disputes, and wills and estates. Prior to being called to the Bar in Western Australia, Ms Zhang was a senior associate at Johnson Winter & Slattery in Perth. She has experience in criminal and family law at the New Zealand Bar. She is a barrister admitted as Practitioner of Supreme Court of Western Australia, of the High Court of Australia and of the High Court of New Zealand.
The Tribunal is responsible for administering the Racing Penalties (Appeals) Act 1990.
Other legislation impacting Tribunal activities
The Tribunal complied with the following relevant written laws in the performance of its functions: