Greyhound Racing Victoria (GRV) likely breathed a big sigh of relief on 28 February 2015. That was when Awesome Project came second in Heat 8 at Meadows Racecourse. If it had won, the successful black greyhound would have qualified for the final of the $250,000 ATC Australian Cup later run, and won, by Luca Neveelk.
The awkwardness arose because GRV had tried to prevent Awesome Project from participating in the race. The greyhound’s former trainer was caught in the glare of the live baiting scandal. However, GRV’s efforts were foiled. An urgent injunction was granted the previous day in the criminal jurisdiction of the Supreme Court of Victoria. The injunction, obtained by Bradley Canty, the owner of Awesome Project, meant GRV was unable to implement its decision.
The judgment is now available, see here, with a hat tip to Jack Newton @jnewtos for bringing this to my attention.
In the face of injunctive threat, it was Mr Canty, reported in a previous post, who arguably caused GRV to permit greyhounds to race even if under the care and control of a trainer suspended for live baiting practices. GRV had relaxed its hardline position in the wake of Four Corners exposé if owners signed statutory declarations saying they had no idea what was going on.
Justice Stephen Kaye, who granted the injunction, is no stranger to difficult cases. With more than a decade’s experience as a Supreme Court Judge, Justice Kaye had been appointed to the Court of Appeal only weeks earlier. It was Justice Kaye who in 2013 fined Derryn Hinch $100,000 and convicted him of contempt of court for breaching a non-publication order related to the Jill Meagher murder case. It was also Justice Kaye who sentenced Harley Hicks last year to life with a minimum of 32 years for murdering a 10-month-old baby during a burglary at Bendigo.
And yet, in this case, Justice Kaye made known the challenges of being a judge forced to decide hard cases. In his concluding remarks he observed:
…I say, although with some difficulty, I have determined that the balance of convenience does lie in favour of the grant of an injunction. I am persuaded to that effect on the basis that on all the evidence there is no suggestion that Mr Canty had anything to do with live bait training and in that sense he is entirely innocent in relation to the matter. The race is important to the ability of the greyhound to qualify for the Australia Cup and to its value to its owner: at 
Live Baiting – abhorrent
“I think it is common knowledge that as a result of the revelation of that practice, the image of that industry has taken a battering and, if I may say so, correctly so.” – Justice Kaye
There has been some limited debate in the media about whether live baiting is as appalling as it seems. A former greyhound trainer suggested in an interview that the discerning use of rabbits “[j]ust maybe once or something like that” might be acceptable, but use of possums or piglets was not.
Tory Shepherd, in an opinion piece, commented on the complicated affair of our personal ethics when it comes to eating animals and then deploring live baiting behavior.
There was no such debate in the Supreme Court of Victoria. Justice Kaye stated that the practice of using live bait while training registered greyhounds in this state and in other states is “understandably forbidden”. He added: “It is a practice which would be regarded as abhorrent by any right thinking member of our community.”
Counsel for GRV “with some force”, said the Judge, submitted that what has occurred in relation to live baiting has severely tarnished the issue of greyhound racing in Victoria, indeed in Australia.
GRV stated plainly why it was taking a hard line stance: at  to 
- GRV wants to reinstate its image and reputation, and has a responsibility to try to do so;
- GRV needs to reassure the public that it is embarking on such a course (which includes new rules);
- if the Court prevents GRV from taking these steps, GRV would be prejudiced in its capacity to reinstate the image of greyhound racing in this state; and
- allowing the greyhound to race would be unfair to other participants and means one of the nominated reserves could not participate in the race.
What led to the Court fight?
This summary is drawn from the judgement.
There was evidence that the third plaintiff, Darren McDonald, was engaged in the practice of live baiting, in particular in November 2014. Until 13 February, Mr McDonald, was a licensed greyhound trainer and he was the registered trainer of the dog ‘Awesome Project’. As a result of the Four Corners’ revelations, Mr McDonald was suspended from acting as a trainer of greyhounds.
However, there was no evidence that the dog in question, Awesome Project, had itself participated in the practice, nor was there any evidence that either of the other plaintiffs, the first plaintiff, Bradley Canty, or the second plaintiff, Joanne Gane, have been at all implicated in the practice.
Ms Gane is the de facto partner of Mr McDonald. She, in her own right, is a registered greyhound trainer and owner, licensed by the defendant.
When Mr McDonald was suspended, GRV suspended greyhounds, including Awesome Project, which had been trained by McDonald, from racing.
On the next day, 14 February, Mr McDonald transferred the training of Awesome Project to Ms Gane.
Until the day of the injunction, the dog had been accepted to run in the qualifying heat for the Australia Cup to be held on Saturday, 7 March.
On 20 February, GRV sent Ms Gane and Mr Canty an email stating that the GRV board had resolved on the previous day to lift the suspension of any greyhounds provided that the owners of those greyhounds provided sworn evidence that the owner had made reasonable inquiries and believed that the greyhound had not been trained using live baiting.
In response, on 20 February, Mr Canty made a statutory declaration stating that he had made reasonable inquiries and he did not believe that the greyhound or indeed another greyhound, owned by him had been trained using live baiting.
As a result of that, the suspension of the greyhound was lifted.
On the next day, on 21 February, accordingly, the greyhound participated in a race called the Temlee.
The greyhound had also been nominated and accepted for the 28 February race at the Meadows, which was the subject of the injunction application.
On 26 February, the greyhound was collected by or on behalf of Ms Elizabeth Lloyd, who is a registered trainer, and it was conveyed to her property at Anakie. An application to transfer the training of the greyhound to Ms Lloyd was lodged online with the defendant.
The website of the defendant on 27 February listed Ms Lloyd as the trainer of the greyhound and that the greyhound would participate in the Australian Cup heat with Ms Lloyd as its trainer.
At 4.58 pm on 26 February, GRV sent an email to the Mr Canty’s solicitors stating, in effect, that:
- it proposed to introduce new rules 11.7 and 11.8 to the Greyhound Racing Victoria Local Racing Rules;
- those rules would be introduced at 9 am on 27 February; and
- after the rules were introduced, the greyhound would be scratched from the next day’s race, such scratching to take place at 10 am.
GRV issued a contemporaneous press release confirming these actions.
The rules were passed, introduced and became effective, and at 10 am, the greyhound was scratched from the race.
What did the new rules say?
Rule 11.7, as amended, in effect provides that no registered person may train any greyhound at any property that is deemed by the defendant’s board as being the greyhound training property of a person who has had their registration ceased as a result of having been suspended for a breach or potential breach of the rules.
This rule was intended to get around the prospect that a greyhound could be transferred from one training partner to another and stay on premises.
Rule 11.8 as introduced, in effect, provides that no person who is suspended as a result of unacceptable conduct by that person, shall be permitted to transfer any ownership of any greyhound or any training responsibilities for any greyhound they train, to any other person who resided with them at or about the time of the offence the subject of the suspension.
This rule is similar to above, but rather than focusing on the property where the greyhound is trained, it prevents a person (namely, the suspended trainer) from effecting a transfer of ownership or training responsibilities to a person who lives with them.
Importantly, the last sentence in new rule 11.8 then says:
“Any transfer that may have occurred in breach of this rule, whether before or after the introduction of this rule, may be voided by the board.” [emphasis added]
In other words, part of this fight is about the scope in which this rule could operate retrospectively, and what “voided” might mean in practice.
Rules of the game – what you have to prove to get an injunction
Cases for urgent injunctions involve special rules. In other words, you cannot just rush into court, say something bad is about to happen and ask for it to stop (although that is not a bad way to begin).
First, you have to show you have a genuine case (called a ‘serious case to be tried’ or for those wanting to remember their Latin, a ‘prima facie case’).
This required Mr Canty to demonstrate a sufficient likelihood of success at trial to justify the right of the greyhound to continue to race.
Secondly, Mr Canty needed to show that the ‘balance of convenience’ was in his favour. This is precisely the sort of balancing exercise it sounds like. The judge must weigh up the practical effect of granting an injunction, against the ‘do nothing’ factor.
Justice Kaye was frank about what worried him more:
“The question then arises as to where the balance of convenience lies and this is a matter that does trouble me.”
Was there a serious question?
Here are the four points made on Mr Canty’s behalf:
- He had a contract with GRV, the greyhound had been nominated and accepted, and there was no rule permitting a scratching validly nominated and accepted in the circumstances that had occurred.
- Rule 11.8 was ineffective to invalidate the constitution of Elizabeth Lloyd as the trainer of the greyhound as of 27 Feb. It was claimed that the transfer took effect before GRV acted under Rule 11.8 to void the transfer of the training from McDonald to Gain. Ms Lloyd was a valid trainer and there was no basis to exclude a greyhound in her care.
- Mr Canty was not given any right to a hearing in relation to the decision.
- Mr Canty would be entitled to rely on an estoppel. That is, he had relied on GRV’s conduct allowing the greyhound to race if he signed a statutory declaration, which he had duly done. It was unfair and detrimental for GRV to be allowed to change its mind.
Justice Kaye was unenthusiastic about point 4, so let us deal with it quickly. He stated:
“I must say I do have doubts about the estoppel argument and I would not grant interlocutory relief if that were the only argument advanced on behalf of the plaintiffs today.”
It is possible Justice Kaye was convinced most about point 3. This was an allegation that Mr Canty had been denied procedural fairness. GRV had argued that he had received notice from GRV and there was adequate time to respond.
However, Justice Kaye considered it “at least arguable” that the email did not invite a response or even suggest a right to respond to it. He described the decision as a fait accompli.
He therefore considered it: “well arguable on behalf of Mr Canty, that the greyhound, having been validly nominated and accepted to race in tomorrow’s race, and given the repercussions of any scratching of the dog, that he ought to at least be entitled to put his case in relation to the board making a decision under 11.8 that had such an adverse effect on his entitlement to have the dog race tomorrow.”
On points 1 and 2, this was really a fight about when the greyhound came into the care of Ms Lloyd, and how the retrospective operation of Rule 11.8 could work.
GRV had argued that the transfer from Mr McDonald to Ms Gane was invalidated by the operation of the rule, so that Ms Lloyd could not be, and had never been, the trainer of the greyhound. This was because Ms Gane could not validly transfer the training of the greyhound to Ms Lloyd, if she was not herself the valid recipient of such a transfer herself.
Justice Kaye’s judgment does not indicate much sympathy for all this clever lawyer talk. He stated:
“It seems clear from the facts that I have recited, that at the time the board exercised those powers, Ms Lloyd had taken over the training of the greyhound. On its website, the defendant recorded that Ms Gane was the trainer of the greyhound to 26 February and that Ms Lloyd was the trainer as from 27 February.”
Accordingly, he found it at least arguable that, as of 27 February, Ms Lloyd was registered as the trainer of the greyhound.
On the question of the retrospective operation of the rules (and whether they could ‘void’ an earlier transfer) the judge stated:
… [T]he rules themselves are, of course, delegated statutory legislation. While they purport to provide retrospective rights to the board and powers to the board, as a matter of construction, such rules are ordinarily interpreted quite strictly.
Further, Justice Kaye considered it fairly arguable (a popular term in his judgment) that it was the actions of Mr Canty, the owner of Awesome Project, who transferred the greyhound to Ms Lloyd, not Ms Gane:
[A]t some stage, on 26 February, Awesome Project was collected by or on behalf of Ms Lloyd, transferred to her property at Anakie, and an application to transfer the training of the dog to Ms Lloyd was lodged online with the defendant.
Justice Kaye speculated that if this were so, the effect of rule 11.8 would not invalidate the subsequent transfer effected by Mr Canty to Ms Lloyd.
Balance of Convenience
Whilst Justice Kaye clearly found the decision a hard one, he weighed in favour of the immediate impact to Mr Canty’s rights. If the greyhound were wrongly excluded from the race, Mr Canty would not be able to qualify for the prize money in that race, nor have the chance to qualify for the Australian Cup. The implications of a win for Awesome Project’s stud value were also noted.
This immediate impact seemed to be the compelling factor. If the greyhound did not race, the result might be irreparable prejudice to Mr Canty not capable of being adequately calculated and compensated in damages
By contrast, there appeared to be a general understanding in the court room that integrity issues in relation to greyhound racing were unlikely to go away soon.
Elephant in the room
“There was no evidence that the dog in question, Awesome Project, had itself participated in the [live baiting] practice”. – Justice Kaye
All this energy to stop a particular greyhound from racing, you might say. Why all the bother? After all, the judge did say there was no evidence Awesome Project had participated in live baiting.
This is exactly the type of case capable of making law students weep. All one wants to do is understand why people care so much about whether a particular greyhound should be stopped from racing the next day, that they are prepared to turn up to the Supreme Court of Victoria on a Friday, at an hour when most people are celebrating the end of the working week.
The clue is in Justice Kaye’s observation that there was “no evidence” that Awesome Project had participated in live baiting.
This was, in fact, the elephant in the room, and no one was prepared to discuss it.
Was Awesome Project trained using live baiting methods?
In my previous post, ‘it’s a question of proof’, I explained that whilst the Four Corners program appeared to identify a number of people engaged in live baiting, there was less focus on which dogs. Further, it cannot be assumed that all dogs will be subject to live baiting, simply because training methods are likely to differ between greyhounds. Accordingly, a blanket ban on greyhounds trained by trainers suspended for possible live baiting offences could very well lead to the kind of legal action which has occurred here.
This case also shows though, that even if it cannot be proved that a particular dog has been subject to live baiting treatment, GRV is determined to come up with more circuitous methods to try to stop them from racing.
Mr Canty might have won this court battle. However, the question is: Who will win the war?
The fate of this legal action is not over. The purpose of an urgent injunction is to retain the status quo whilst litigation is on foot. Therefore, the arguments of both sides remain to be fully tested, if the case does not settle in the meantime.
These can be summarized below:
- GRV’s decision to introduce new rules shows it was not confident of its position under the old rules.
- GRV is prepared to make new rules and to act on them swiftly, as it tries to deal with the repercussions of the live baiting scandal.
- There is no reason why you cannot have a rule with retrospective operation, but it will be construed strictly.
- This means you have to have all your ducks in a row before you act on it.
- Here, GRV was stymied by factual questions about whether the new rule could and should apply to past events.
- Next time, GRV should be careful not to “spring” decisions on affected people, but give them a chance to have a proper hearing (noting that the legality of whether such a hearing is required here is a little murky, but not something we need deal with now).
- This case is not over yet.