Maund v Racing Victoria Ltd & The Victorian Civil and Administrative Tribunal

[2016] VSCA 132

Victorian Court of Appeal

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Catchwords

1. Administrative Law
2. › Disciplinary tribunals
3. › Sporting codes
4. › Racing
5. › Proceedings for breach of rules
6. › Appeal to VCAT by way of re-hearing
7. › Whether Tribunal bound by rules of evidence
8. › Whether hearsay statements admissible
9. › Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 97, 98
1. Administrative Law
2. › Disciplinary tribunals
3. › Natural justice
4. › Particularisation of charges
5. › Whether respondent to disciplinary proceedings given sufficient notice of case to be met
6. › Whether alternative hypotheses as to identity of person who performed act constituted inconsistency
1. Evidence
2. › Jones v Dunkel inference
3. › Disciplinary proceedings
4. › Whether principle applies where tribunal not bound by rules of evidence
5. › Whether inference available where witness made available for cross-examination but not called to give substantive evidence
1. Evidence
2. › Circumstantial case
3. › Drawing of inferences
4. › Alternative hypotheses
5. › Whether open to tribunal to find applicant responsible where case put on alternative bases
6. › Whether criminal law principles as to circumstantial evidence apply to disciplinary proceedings

Quick Take

In disciplinary proceedings before VCAT, the Jones v Dunkel principle does not directly apply because the Tribunal is not bound by the rules of evidence. Where a party makes a witness available for cross-examination but does not call the witness to give substantive evidence, no adverse inference arises from the failure to call the witness, particularly where the opposing party declines the opportunity to cross-examine. Alternative hypotheses as to the identity of the person who physically performed a prohibited act do not constitute inconsistency where the critical allegation is that the act was done on the respondent's authority.