IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
 
S ECI 2022 02245

BETWEEN:

PETER GAVIN	Plaintiff	
		
v  		
		
GEELONG GREYHOUND RACING CLUB	Defendant	

---

JUDGE:	Irving AsJ 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	21 November 2022	
DATE OF RULING:	21 December 2022	
CASE MAY BE CITED AS:	Gavin v Geelong Greyhound Racing Club	
MEDIUM NEUTRAL CITATION:	[2022] VSC 811	

---

PRACTICE AND PROCEDURE – Preliminary discovery – Supreme Court (General Civil Procedure) Rules 2015 (Vic), Rule 32.05 – Whether reasonable grounds to believe that plaintiff may have right to obtain relief against defendant – Whether sufficient information to enable plaintiff to decide whether to commence proceedings – Preliminary discovery ordered. 

---

APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Ms G Walker	CMA Law Pty Ltd	
			
For the Defendant	Mr H Williamson (solicitor)	Gordon Legal Pty Ltd	

HIS HONOUR:
Introduction
1	Peter Gavin (the plaintiff) is a greyhound trainer who, until 28 February 2022, used the Geelong Greyhound Racing Club’s (the defendant) facilities to trial his greyhounds.  On 28 February 2022, the General Manager of the defendant wrote to the plaintiff informing him that he had been suspended from the defendant’s facility during trial sessions for a period of six months.
2	The plaintiff has applied for preliminary discovery of the defendant’s internal governance documents pursuant to r 32.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules).  The plaintiff seeks the documents to obtain legal advice on any avenues that might be available to him to review or appeal his suspension.  The plaintiff’s solicitor believes the plaintiff may have a right to obtain relief from the actions taken by the defendant either through an internal review of the defendant’s decision, judicial review of that decision or possibly an appeal under s 50K of the Racing Act 1958 (Vic) (the Racing Act). 
3	The defendant opposes the plaintiff’s application. 
4	For the reasons that follow I have decided to grant the plaintiff’s application.
Material relied upon by the parties 
5	In addition to its written submissions dated 5 October 2022, the plaintiff relies in support of his application upon the affidavits of:
(a)	Andrew Charles Croxford sworn 10 June 2022; and
(b)	Andrew Charles Croxford sworn 5 October 2022.
6	In addition to its written submissions dated 31 October 2022, the defendant relies upon the affidavits of:
(a)	Hamish Williamson affirmed 5 September 2022; and
(b)	Hamish Williamson affirmed 12 September 2022.
Background
7	The plaintiff holds a public trainers licence and is subject to regulation by Greyhound Racing Victoria (GRV) under the Racing Act. 
8	The defendant owns and runs the Geelong Greyhound Racing Club.  It is a public company limited by guarantee, licensed to omit “Limited” from its name.  It is not otherwise established under statute and does not have not-for-profit status.  The defendant’s registered office is at its racing track in Corio, Victoria.
9	The plaintiff conducted greyhound trials at the defendant’s facility throughout 2021. The plaintiff is not a member of the defendant. 
10	On 5 October 2021 the plaintiff received a letter from the General Manager of the defendant stating that the defendant’s Board had discussed an incident that had occurred on 4 October 2021 during a trial session and the plaintiff’s subsequent communications with the defendant’s General Manager and Chair of the Board. Details of the incident were not provided.  The General Manager’s letter informed the plaintiff that ‘if there is a repeat of this behaviour, you will be forbidden from using our facility until such time you have been before the Board to explain your actions’.  
11	 On 19 February 2022 the defendant invited the plaintiff to attend a meeting of the defendant’s Board to present his side of the incident.  The plaintiff did not respond to this invitation. 
12	On 23 February 2022 the plaintiff received a further letter from the defendant notifying him that, due to the incident that had occurred on 4 October 2021, he was not allowed to trial his greyhounds at the defendant’s facility until the plaintiff provided a letter ‘explaining your behaviour and a written apology to Mark Tippett for the way in which you spoke to him’.  
13	On 28 February 2022 the plaintiff received a further letter from the General Manager of the defendant.  This letter provided the plaintiff with ‘formal notice of suspension from [the defendant’s] facility during trial sessions for a period of six months, effective immediately and concluding on 18 September 2022’.
14	The plaintiff’s solicitor, Mr Croxford, responded by letter dated 23 March 2022 complaining that the defendant had suspended the plaintiff without notice, without reference to any source of a power to suspend the plaintiff and without providing the plaintiff with an opportunity to put forward his version of the events.  Mr Croxford asked the defendant to immediately revoke the plaintiff’s suspension, failing which legal proceedings would be commenced.  On the same day Mr Croxford notified GRV of the dispute, indicating that if the plaintiff commenced legal proceedings he would include GRV as a defendant.  GRV acknowledged receipt of Mr Croxford’s letter but did not provide any other response.
15	On 28 March 2022 Mr Croxford wrote to the Victorian Racing Tribunal seeking a stay of the plaintiff’s suspension and that the matter ‘otherwise proceed as an [a]ppeal before the Tribunal’.  The Tribunal responded on 31 March 2022 indicating the dispute appeared to fall outside the Tribunal’s statutory jurisdiction. 
16	On 13 April 2022 Mr Croxford searched the defendant’s website but was unable to locate any publicly available governance documents.
17	On 6 May 2022 Mr Croxford wrote to the defendant requesting a copy of the defendant’s constitution and ‘any other governance documents relevant to [the plaintiff’s] suspension’.  As at 10 June 2022, being the date of the plaintiff’s application, Mr Croxford had not received a response.
18	On 12 May 2022 Mr Croxford wrote to GRV seeking its assistance to obtain the defendant’s governance documents.  On 30 May 2022 GRV advised Mr Croxford it would not provide the documents without the defendant’s consent but undertook to review the defendant’s decision if Mr Croxford provided a further chronology of events.
19	On 10 June 2022 the plaintiff filed his application for preliminary discovery in this Court.  The application seeks:
[A]ll documents in respect of the governance of the Defendant or bearing upon the operating procedures maintained by the Defendant for its disciplinary processes, including but not limited to any constitution, rules, regulations, by-laws, grievance policy, member code of conduct, member protection policy or the like.
20	On 19 August 2022 the defendant’s solicitors wrote to Mr Croxford inviting the plaintiff to withdraw his application for preliminary discovery and informing him that the documents sought by the plaintiff were publicly available through the Australian Securities and Investment Commission’s (ASIC) website.  Mr Croxford subsequently obtained a copy of the defendant’s constitution from that source.
21	Mr Croxford deposed that as a result of the plaintiff’s suspension and ban from the defendant’s facility, the plaintiff’s business has been interrupted by having to conduct his trials at other tracks, resulting in significant financial loss.  The reduction in the plaintiff’s business has meant that he is no longer conducting trials and has terminated employment of two staff members.
22	Mr Croxford believes the plaintiff may have a right to obtain relief from the actions taken by the defendant either through an internal review of the defendant’s decision, judicial review of that decision or possibly an appeal under s 50K of the Racing Act.  He believes that organisations like the defendant have written disciplinary policies or codes, that outline the process an organisation is required to follow prior to suspending a member, or someone who may be attending controlled premises.
23	The plaintiff seeks the documents to obtain legal advice on any avenues that might be available to him to review or appeal his suspension.
Relevant principles
24	Rule 32.05 of the Rules is in the following terms:
Where:
(a)	there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description the applicant has ascertained;
(b)	after making all reasonable inquiries, the applicant has not sufficient information to enable the applicant to decide whether to commence a proceeding in the Court to obtain that relief; and
(c)	there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had in that person’s possession any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist the applicant to make the decision –
the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c). 
25	The plaintiff must satisfy the Court of three things before the Court will make an order for preliminary discovery:
(a)	first, there is reasonable cause to believe the applicant has or may have the right to obtain relief;
(b)	second, after making all reasonable inquiries, the applicant does not have sufficient information to enable it to decide whether to commence a proceeding to obtain relief; and
(c)	third, there is reasonable cause to believe the respondent has or is likely to have documents the inspection of which by the applicant would assist the applicant to make the decision.
26	In Pandolfo v Finadri, Derham AsJ summarised the relevant principles as follows:
The primary object of r 32.05 is to advance the administration of justice, by enabling a prospective plaintiff to make an informed decision based on proper materials about whether to issue proceedings.
…
The rule must be given the fullest possible scope its language will reasonably allow.
An applicant does not have to prove that there will be a real benefit in making the order, but simply that there may be some benefit. The benefit may be the preparation of an appropriate pleading and the avoidance of substantial amendments following discovery. Alternatively, the avoidance of unnecessary litigation.
The principles relevant to the first criterion are as follows:
(a)	the applicant is not required to show that it has a prima facie case that it has a right to relief;
(b)	it is also not necessary to show precisely what cause of action the applicant may have; such a requirement would defeat the object of the rule;
(c)	rather, it merely needs to be shown that the facts are such that it may reasonably be believed that the applicant may have a right to obtain relief;
(d)	the test for determining whether the applicant has ‘reasonable cause to believe’ is an objective test;
(e)	the word “may” indicates that the applicant’s belief does not have to amount to a firm view that there is a right to relief.
The second criterion is governed by the following principles:
(a)	the requirement is primarily concerned with whether, as an objective fact, an applicant has sufficient information to determine whether to commence proceedings. The fact that an applicant for preliminary discovery already has enough evidence to establish a prima facie case against a proposed defendant does not mean that the applicant has sufficient information to enable it to decide whether to commence a proceeding. An applicant in that position may nevertheless ‘need information to know whether the cost and risk of litigation is worthwhile’. For example, an applicant with sufficient information to plead a prima facie case may prudently wish to obtain preliminary discovery about ‘what defences are available to the respondent and the possible strength of those defences, or to determine the extent of the respondent’s breach and the likely quantum of any damages award’.
(b)	it is for the court to determine whether an applicant has sufficient information available to it; the applicant’s own assertion that it does not is neither determinative nor strictly necessary;
(c)	accordingly, an application cannot succeed if the applicant has sufficient information (objectively assessed) but is unable to determine whether to commence proceedings due to subjective factors, for example, an overly cautious nature;
(d)	courts have, however, approved litigants taking a cautious, conservative or prudent approach by applying for preliminary discovery under the rule. This approach is consistent with the policy underlying the rule. It is also consistent with the policy underlying the Civil Procedure Act 2010 (Vic) (CPA) generally, and the ‘proper basis certification’ requirements in s 42 of the CPA in particular.
(e)	if there is evidence that an applicant has in fact decided to commence proceedings, the application must fail. In determining whether an applicant has in fact already decided to commence a proceeding, irrespective of the outcome of the application, the Court should not give too much weight to posturing in correspondence prior to the making of the application, particularly correspondence alleging the existence of a strong case but nevertheless seeking preliminary discovery by letter prior to making a formal application to the Court;
(f)	what constitutes ‘reasonable inquiries’ is a question of fact, to be considered in all the circumstances of the particular case.
For the purpose of the third criteria, ‘possession’ means ‘possession, custody or power’. Little more need be said about the third criteria, which sets out express requirements, the satisfaction of which will turn on the particular facts.
Where each element of the rule is satisfied, the Court will ordinarily exercise its discretion in favour of the applicant.
[citations omitted]
Does the plaintiff have reasonable cause to believe he may have a right to obtain relief in the court from the defendant?
27	The plaintiff submitted that:
(a)	as a registered greyhound participant under the Racing Act, the plaintiff is eligible to conduct trials at the defendant’s facility;
(b)	to host greyhound trials, tracks must be registered for that purpose by GRV;
(c)	the conduct of trials is regulated by the Greyhounds Australasian Rules and GRV’s Rules;
(d)	the defendant’s correspondence informing the plaintiff of his suspension and the ban does not refer to any of the Greyhounds Australasian Rules and GRV’s Rules, action of any Steward or a section of the Racing Act which may empower the defendant to take the action it did;
(e)	the defendant has not informed the plaintiff of the source of its authority to suspend him from conducting trials at its facility;
(f)	the defendant’s letters do not reflect the same standard of procedural fairness offered to members of the defendant under its constitution;
(g)	GRV has informed the plaintiff that they have no part to play in the dispute between the plaintiff and defendant over his suspension and ban;
(h)	the plaintiff is not required to show that he is likely to succeed or even a prima facie case; and 
(i)	the object of r 32.05 of the Rules is to avoid the commencement of speculative suits and instead, to advance the administration of justice by enabling a prospective plaintiff to make an informed decision about whether to proceed or not upon proper material before issuing his proceeding.   
28	The defendant argued the plaintiff does not have the necessary reasonable belief.  It submitted that:
(a)	in order to have such a belief the plaintiff would need to identify an actual or potential source of a right to access the defendant’s facilities or a right to procedural fairness in the event his access is denied;
(b)	the plaintiff had not been able to identify a statutory basis for such rights in the Racing Act, nor a basis arising from membership of the defendant, nor a basis arising from the defendant’s constitution, nor any contractual or equitable basis;
(c)	the plaintiff asserts that the defendant did not identify any authority for its decision but does not provide a reason why the defendant would require such authority and no reason why the defendant was required to provide procedural fairness;
(d)	the plaintiff had not identified any reason why the defendant’s internal governance documents the plaintiff seeks would, or could, establish binding legal relations between the plaintiff and defendant; and
(e)	the belief the plaintiff relies upon is unreasonable in that it lacks any proper basis.
29	The defendant agreed that the plaintiff is not required to show that it has a prima facie case that it has a right to relief.  It however argued that the plaintiff must at least show reasonable cause to believe that he may have a right of access to the defendant’s facility or a right to procedural fairness, which he has failed to do.
30	Further the defendant submitted that the plaintiff’s submissions tended to blur the distinction between GRV, a body established under statute, with the rights and obligations of the defendant, a public company limited by guarantee that is the occupier of the land on which its greyhound track is located.  The defendant said the mere existence of a legislative framework governing greyhound racing does not, in itself, impose any obligation on the part of the occupiers of premises where the activity takes place to guarantee access to the general public or provide procedural fairness to patrons. 
31	The defendant submitted that as an occupier of the land, it is entitled to exclude persons from its private property.
32	I cannot accept the defendant’s submission that the plaintiff must identify a source of a right to access the defendant’s facility or a right to procedural fairness.  It appears to me that to require that of the plaintiff would be akin to requiring the plaintiff to show a potential cause of action.  As has been said before, this would defeat the object of the rule.
33	The plaintiff merely needs to show that the facts are such that it may be reasonable to believe that the plaintiff may have a right to obtain relief.  The defendant has excluded the plaintiff from its facility which the plaintiff alleges has caused his business harm.  The plaintiff believes he may have a right to obtain relief from the actions taken by the defendant through an internal review of the defendant’s decision or judicial review of that decision or some other mechanism.  He seeks access to the defendant’s governance documents to assist him to assess whether, in fact, such a right to obtain relief exists.  As the plaintiff submitted, one possibility is that if the documents are provided, the plaintiff may see there is not a viable right to obtain relief and further litigation is avoided. 
34	The plaintiff submitted that while some internal governance documents may be directed primarily to members of the defendant, such documents often include rules and regulations relating to non-members.  That appears to me to be a reasonable submission and one that was not seriously challenged by the defendant. 
35	I am satisfied the plaintiff has reasonable cause to believe it may have a right to obtain relief in the Court from the defendant.
Does the plaintiff have sufficient information to enable him to decide whether to commence a proceeding?
36	There appeared to be no dispute between the parties at the hearing about whether the plaintiff had made reasonable inquiries to obtain the documents.  Accordingly, the issue was whether the plaintiff has sufficient information to enable him to decide whether to commence a proceeding.
37	The plaintiff submitted that, notwithstanding his instructions to his lawyers and the provision of the documents in his possession to his lawyers, it remains unclear what authority the defendant relied upon to take the actions set out in its letters of 23 and 28 February 2022 and thus what avenues of redress may be available to him.
38	The plaintiff submitted that he cannot decide whether to commence a proceeding until he knows:
(a)	the authority the defendant relied upon to restrict his access;
(b)	assuming the defendant’s Board was empowered to take the action it did, whether the Board followed the appropriate process;
(c)	if the defendant’s Board did follow the appropriate process, whether the plaintiff has any right to appeal;
(d)	if there is a right to appeal, are there any pre-requisite steps such as an internal review; and
(e)	if there is an external avenue of appeal, is this Court the appropriate venue.
39	The defendant submits it has already told the plaintiff:
(a)	that the defendant relied upon the authority of the unanimous decision of its Board of directors;
(b)	that the nature of the defendant’s decision to exclude the plaintiff from the land was that of an occupier excluding a member of the public;
(c)	of the reasons for the decision to exclude the plaintiff, ie. the plaintiff’s alleged sustained aggressive and inappropriate behaviour towards the defendant’s staff and the plaintiff’s alleged consumption of alcohol on the defendant’s land in a manner that caused a risk to safety; and
(d)	the defendant, notwithstanding it had no legal obligation to do so, provided the plaintiff with multiple opportunities to discuss his behaviour with the defendant’s Board and the plaintiff declined to do so.
40	The defendant submitted that the plaintiff has access to relevant legislation, correspondence between the parties including the defendant’s reasons and purported authority to make the decision, the defendant’s constitution and other documents publicly available on the ASIC register.
41	I accept that on the basis of the documents currently available to the plaintiff, it has not been able to discern a clear basis to commence a proceeding.  The defendant asserts, in the context of the plaintiff’s application, that it had authority to exclude the plaintiff as the occupier of the land on which its facilities are located.  The fact that the defendant asserts it relied on its status as occupier to make the decision is not, in my view, determinative of what causes of action may be available to the plaintiff.  The plaintiff seeks to explore whether it may have a right to obtain relief on the basis of the process followed by the defendant and any appeal rights that may be available to him by virtue of the defendant’s governance documents.  I have already found that the plaintiff’s belief that it may have such a right is reasonable.  It appears to me that objectively, without the governance documents the plaintiff seeks, he is not in a position to obtain legal advice necessary to determine whether to commence a proceeding.
42	I am satisfied that, as an objective fact, the plaintiff does not have sufficient information to determine whether to commence proceedings.
Does the plaintiff have reasonable cause to believe the defendant has or is likely to have, or has had or is likely to have had, in its possession, any document relating to the question whether he has the right to obtain relief?
43	The plaintiff seeks the defendant’s constitution (to the extent the one available on the ASIC website is not the latest version), the defendant’s by-laws, code of conduct, member protection policy, disciplinary policy or guidelines, safety rules and the minutes of any Board meeting in which the plaintiff was discussed.
44	The plaintiff submits that these documents are foundational governance documents upon which the defendant operates its business and so he has reasonable cause to believe the defendant would have these documents in its possession.
45	 The defendant submits the plaintiff’s application rests on an implausible proposition that the defendant has in its possession an internal document evidencing a binding obligation on its part to provide the plaintiff with his asserted right to access the defendant’s land and to procedural fairness.  The defendant says this is fanciful.
46	It appears to me that the defendant’s submissions on this element of the rule are really identical to the submissions it made in relation to whether the plaintiff has a reasonable belief that he may have a right to obtain relief in the Court.  I accept that the defendant does not believe that the plaintiff has a right of relief.  That, however, is not the test in relation to this element of the rule.
47	Given that I have found that the plaintiff has satisfied the first two elements of the rule, it follows that I am satisfied that there is a question whether the applicant has the right to obtain the relief and that inspection of the documents sought by the applicant would assist the applicant to make the decision about whether to commence a proceeding.  This aspect of the rule requires the Court to determine whether the documents sought are likely to be in the defendant’s possession.  Given the nature of the documents sought, being foundational and operational documents and minutes of the defendant’s Board meetings, I am satisfied that they are likely to be in the defendant’s possession.  I note that the defendant has not submitted otherwise.
Conclusion
48	The plaintiff’s application will be granted subject to the following.  The plaintiff seeks all minutes of defendant’s Board meetings at which the plaintiff was discussed.  This category appears to me to potentially contain more documents than are necessary for the plaintiff to decide whether to commence a proceeding.  This category of documents should be limited to any minutes of the defendant’s Board meetings after 4 October 2021 in which the plaintiff was discussed.
49	The parties are to confer on a form of orders giving effect to this ruling and on the question of the costs of the plaintiff’s application.  If the parties are unable to reach agreement on these matters by 16 January 2023, the matter will be relisted.

SCHEDULE OF PARTIES

		
	S ECI 2022 02245	

BETWEEN:		

PETER GAVIN	Plaintiff 	
		
- v -		
		
GEELONG GREYHOUND RACING CLUB	Defendant