Costello v Racing Appeals Tribunal

[2019] NSWSC 1808

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Costello v Racing Appeals Tribunal [2019] NSWSC 1808
Hearing dates:	13 December 2019
Decision date:	16 December 2019
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Dismiss the amended summons filed on 18 September 2019.  (2) Order the plaintiff to pay the second defendant’s costs of the proceedings.
Catchwords:	ADMINISTRATIVE LAW – plaintiff subject to investigation by stewards of Racing NSW because the horses of one of his clients were found to contain cobalt – alleged unreasonableness in finding lack of co-operation by plaintiff who gave no evidence of what inquiries he had made following his undertaking to the stewards to make inquiries as to the identity of his supplier  ADMINISTRATIVE LAW – whether denial of procedural fairness for Racing Appeals Tribunal to take into account that the plaintiff did not give or adduce evidence of what inquiries he had made to ascertain details of his supplier
Legislation Cited:	Betting and Racing Act 1998 (NSW), s 13 Racing Appeals Tribunal Act 1983 (NSW), ss 15, 16, 16A, 17, 18 Supreme Court Act 1970 (NSW), s 69 Thoroughbred Racing Act 1996 (NSW), ss 4, 13, 14 Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited:	Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Council of the New South Wales Bar Association v Power (2008) 71 NSWLR 451; [2008] NSWCA 135 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40 Prothonotary of the Supreme Court of New South Wales v Nikolaidis [2010] NSWCA 73 Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8.
Texts Cited:	Rules of Racing of Racing NSW
Category:	Principal judgment
Parties:	Neil Costello (Plaintiff) Racing Appeals Tribunal (First Defendant) Racing New South Wales (Second Defendant)
Representation:	Counsel: C Street (Plaintiff) S Dawson SC/ D Forrester (Second Defendant)   Solicitors: Byles Anjos Lawyers (Plaintiff) Crown Solicitor’s Office (First Defendant, Submitting Appearance) Racing New South Wales (Second Defendant)
File Number(s):	2019/263261

Judgment

Introduction

1. By amended summons filed on 18 September 2019, Neil Costello (the plaintiff) seeks judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) of the decision of the Racing Appeals Tribunal, the first defendant, (the Tribunal) to dismiss his appeal against the warning off directed by Racing NSW, the second defendant.

2. The Tribunal has filed a submitting appearance. Accordingly, Racing NSW, for which Mr Dawson SC appeared with Ms Forrester, is the only active defendant.

The statutory framework

3. Before addressing the circumstances in which the plaintiff’s claim for relief arises, it is necessary to outline the jurisdictional basis for the decision of the Tribunal, which is the operative decision, and that of Racing NSW, which was the decision challenged in the Tribunal.

Thoroughbred Racing Act 1996 (NSW)

4. Section 4 of the Thoroughbred Racing Act 1996 (NSW) established Racing NSW as a body corporate. Section 13(1) relevantly provides:

“13    Functions of Racing NSW

(1)    Racing NSW has the following functions:

(a)    all the functions of the principal club for New South Wales and committee of the principal club for New South Wales under the Australian Rules of Racing,

(b)    to control, supervise and regulate horse racing in the State,

…

(e)    such functions as may be conferred or imposed on Racing NSW by or under the Australian Rules of Racing or any other Act,

…”

5. Section 14 relevantly provides:

“14    Powers of Racing NSW

(1)    Racing NSW has power to do all things that may be necessary or convenient to be done for or in connection with the exercise of its functions.

(2)    Without limiting subsection (1), Racing NSW has power to do the following:

…

(c)   supervise the activities of race clubs, persons licensed by Racing NSW and all other persons engaged in or associated with racing,

(d)     inquire into and deal with any matter relating to racing and to refer any such matter to stewards or others for investigation and report and, without limiting the generality of this power, to inquire at any time into the running of any horse on any course or courses, whether or not a report concerning the matter has been made or decision arrived at by any stewards,

…

(k)     prohibit a person from attending at or taking part in a race meeting,

…

(w)     take such steps and do such acts and things as are incidental or conducive to the exercise of its powers and the performance of its functions.”

Betting and Racing Act 1998 (NSW)

6. Section 13 of the Betting and Racing Act 1998 (NSW) relevantly provides:

“13    Certain persons prohibited from entering racecourses

(1)    Any person who has been warned off a racecourse, or who is disqualified from participating in any racing activities, by a controlling body must not enter any racecourse under the administration or control of that controlling body while the warning off or disqualification is in force.

Maximum penalty: 50 penalty units or imprisonment for 12 months (or both).”

Racing Appeals Tribunal Act 1983 (NSW)

7. Section 15(1)(d) of the Racing Appeals Tribunal Act 1983 (NSW) (the RAT Act) provides that a person who is aggrieved by a decision of Racing NSW may appeal against the decision to the Tribunal. Section 16 provides that an appeal is to be by way of a new hearing and fresh evidence, or additional or substitute evidence, may be given on appeal. Section 16(2) provides that proceedings on an appeal “are to be held as in open court before the Tribunal”.

8. Section 16A relevantly provides:

“16A      Persons required to attend hearings or produce documents

(1)     The Tribunal may, by written notice served on any person, require the person to attend at a time, date and place specified in the notice for the purpose of:

(a)     giving evidence relating to an appeal being heard or to be heard by the Tribunal, or

(b)     producing any document, relating to such an appeal, specified in the notice that is in the person’s possession or under the person’s control.

(2)     A person who is served with a notice under this section must not, without reasonable excuse, fail or refuse to comply with the requirements of the notice.

Maximum penalty: 5 penalty units.

...”

9. No notice under s 16A was given to the plaintiff for the purposes of his appeal to the Tribunal. Accordingly, he was not obliged to give evidence, although he had a right to do so, it being a fresh hearing.

10. Section 17 provides for the powers of Racing NSW on an appeal such as the one brought by the plaintiff in the present case. It provides:

“17      Determination of appeals relating to thoroughbred racing

(1) The Tribunal may do any of the following in respect of an appeal under section 15:

(a)     dismiss the appeal,

(b)     confirm the decision appealed against or vary the decision by substituting any decision that could have been made by the Appeal Panel, the racing association or Racing NSW (as the case requires),

(c)     refer any matter relating to the decision appealed against to the Appeal Panel, the racing association or Racing NSW for rehearing (in accordance with directions given by the Tribunal),

(d)     make such other order in relation to the disposal of the appeal as the Tribunal thinks fit.

(2)     The decision of the Tribunal is final and is taken (except for the purposes of an appeal against the decision under this Act or the Thoroughbred Racing Act 1996) to be the decision of the Appeal Panel, the racing association or Racing NSW (as the case requires).”

11. Section 18 of the RAT Act provided for a regulation-making power.

Rules of Racing of Racing NSW

12. The Rules of Racing of Racing NSW comprise the Australian Rules of Racing (AR); the Local Rules of Racing (LR); and the Rules of Betting.

13. AR 1 includes the following definition:

“‘Warned off.’ ‘Warning off.’ A person warned off a racecourse is one who is not permitted to enter a racecourse under the control of the Club or body warning him off.”

14. AR 2 provides that 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. Racing NSW is a Principal Racing Authority.

15. AR 7 provides, relevantly,

“AR 7.    A Principal Racing Authority shall:

. . .

(ii)    have the control and general supervision of racing within its territory;

(iii)    in furtherance and not in limitation of all powers conferred on it or implied by these Rules, have power, in its discretion:-

…

(e)    At any time to exercise any power conferred on Stewards by the Rules.

….”

16. AR 182 relevantly provides:

“(1)    Except with the consent of the Principal Racing Authority that imposed the disqualification, and upon such conditions that they may in their discretion impose, a person disqualified by the Stewards or a Principal Racing Authority shall not during the period of that disqualification:-

(a)      Enter upon any racecourse or training track owned, operated or controlled by a Club or any land used in connection therewith;

(b)       Enter upon any training complex or training establishment of any Club or licensed person;

(c)      Be employed or engaged in any capacity in any racing stable;

(d)      Ride any racehorse in any race, official trial, jump-out or test;

(e)      Enter or nominate any racehorse for any race or official trial; or

(f)     Subscribe to any sweepstakes;

(g)      Race or have trained any horse whether as owner, lessee or otherwise;

(h)      Share in the winnings of any horse;

(j)      Participate in any way in the preparation for racing or training of any racehorse.”

17. AR 183 provides:

“A person warned-off by a Principal Racing Authority shall be subject to the same disabilities as a person disqualified.”

18. LR 6 provides:

“The Board has the power to warn off any or all racecourses within its control any person whose presence thereon in the opinion of the Board is not desirable.”

19. LR 110C provides:

“(1)    Except with the written approval of Racing NSW:

(a)    a person must not, in connection with or for any purposes relating to thoroughbred racing, associate with a disqualified or warned off person;

(b)    a disqualified or warned of person must not associate with persons engaged in or associated with the thoroughbred racing industry for any purposes relating to that industry.

(2)    A person who breaches LR110C(1) is guilty of an offence and may be penalised.

(3) Unless otherwise determined by Racing NSW, the period of disqualification of any person who contravenes LR110C(1)(b), shall automatically recommence as from the most recent date of such contravention, and the person may also be subject to further penalty.”

The facts

The investigation by Racing NSW

20. On 11 September 2018, Racing NSW commenced an investigation into Benjamin Smith. The investigation revealed that Mr Smith was in possession of substances which were regarded as suspicious. An analysis of Mr Smith’s telephone led Racing NSW to suspect that the plaintiff had supplied products to Mr Smith.

The first interview on 21 September 2018

21. Accordingly, Racing NSW asked the plaintiff to take part in an interview, which occurred on 21 September 2018. The interview was conducted by Mr Van Gestel, Chairman of the Stewards, and Mr Dingwall, Deputy Chairman of the Stewards. Before the conclusion of the interview, the plaintiff intimated that he would leave the interview before it was concluded. At that point, the Chair said:

“I’ll warn you and I’ll caution you not to leave. If you do leave, the Stewards will have to consider whether we make a recommendation to Racing NSW in respect to your involvement in the industry.”

The decision on 21 September 2018 to warn off the plaintiff

22. Later on 21 September 2018, Racing NSW wrote to the plaintiff in the following terms:

“I confirm that you failed to provide all the information requested by the Stewards and left before the interview was concluded. I further confirm that you were on notice that such failure and departure from the interview would subject you to sanction by Racing NSW without further notice.

By this letter, I confirm that I, being the authorised officer with the delegated authority to exercise the powers of Racing NSW, have determined that you are to be warned off from all racecourses within the control of Racing NSW, effective Immediately and until such time as you attend for Interview and provide Information to the satisfaction of Racing NSW.

The attached extract from the Australian Rules of Racing outlines the effect of being warned-off. You will also be listed In Racing NSW’s official monthly publication as a person who has been warned-off and a media release will be issued today. Further, all wagering operators will be notified that you are unable to bet on thoroughbred racing with them.

I confirm that the decision to warn you off is a decision of Racing NSW and your rights of appeal are set out In the Racing Appeals Tribunal Act. in this respect, an appeal is made by lodging a written notice of appeal within 7 days of the date of notification of the decision of Racing NSW.”

[Emphasis in original.]

23. On 27 September 2018 the plaintiff filed a notice of appeal with the Tribunal.

The second interview on 5 October 2018

24. On 5 October 2018 the plaintiff attended a second interview with Racing NSW. On this occasion he was accompanied by a lawyer, Ms Talarico, who was in attendance throughout. Because the parties have made detailed references to the transcript of the second interview, I propose to set out extracts below. The second interview was also conducted by Mr Van Gestel, and Mr Dingwall.

25. In the course of the second interview, the plaintiff was asked where he obtained the Platinum Bute which he said that he had been supplying to Mr Smith. The plaintiff identified his supplier as being a man who “made out that he was a vet” whose name was “Matt”, who “[came] around selling them”. The plaintiff described Matt as “a smallish person, maybe Asian, not full Asian, but Asian in appearance”, whom he had known for about 15 months, who came around without any warning or prior arrangement, whose contact details were unknown to him and whom he always paid in cash. According to the plaintiff, Matt had never given him a receipt. Although the plaintiff said that he did not know when Matt would come, he also said:

“Someone would have told him. Someone would have told him to come and see me.”

26. The plaintiff volunteered to “make some inquiries” about Matt. He was asked about people who might know Matt. The following exchanges ensued:

“P C DINGWALL: No. All I wish to ask Mr Costello is that in relation to Matt you said that to contact him that you would speak to someone or some people in order to contact him. Who are those people?

N COSTELLO: Can't remember.

P C DINGWALL: I'm sorry.

N COSTELLO: Can’t remember. I know one of them is Ben [Benjamin Smith], but I think I might have sent somebody-

P C DINGWALL: I put it to you that you don’t want to disclose the people that you're going to reach out to to contact Matt and I want an unequivocal answer who you're going to contact in order to reach out to Matt. I can't be any clearer on that.

N COSTELLO: I might have sent some - I might have sent the price list to someone, but I don't know who I sent it to.

P C DINGWALL: You said that you would be able to reach out to someone to contact Matt, I want to know who you're going to contact in order to facilitate that,

N COSTELLO: I'll have to - well, I'll have to make some Inquiries.

CHAIRMAN: I want to know those names.

N COSTELLO: Well, I don't know yet. A couple of greyhound trainers probably.

P C DINGWALL: Who are they? I want their names.

N COSTELLO: I can't supply them.

P C DINGWALL: Are you refusing to-

N COSTELLO: I'm not refusing. I just can't remember.

P C DINGWALL: You can't remember. So what's going to jog your memory?

N COSTELLO: Well, I'll have to think about it.

P C DINGWALL: I suggest you start thinking about it right now. Who are they? I’ll ask you one final time. Who are the people you're going to reach out to contact Matt?

N TALARICO: (Inaudible) with my client now?

P C DINGWALL: I think that would be helpful.

N TALARICO: Thank you.

SHORT ADJOURNMENT

CHAIRMAN: We're just back from the adjournment. The recorder is back going; Mr Dingwall was asking you some questions, Mr Costello, in relation to the names of the persons you're going to reach out to. Are you in a position to provide those answers for Mr Dingwall?

N COSTELLO: Well, I’m going to call around and see if anyone –

CHAIRMAN: Call who, sorry?

N COSTELLO: I'm going to call around some people.

CHAIRMAN: Call around?

N COSTELLO: Yeah, because—

CHAIRMAN: I think specifically Mr Dingwall was wanting to know the names of those persons you're going to call?

N COSTELLO; Well, I'll call - I'm going to call a lot of people to see if they know him and where he is and I'm going to do my best to get back. Listen, the cards are on the table. I'm going to find him. I'll get back to you.

CHAIRMAN: But there must be persons that associate with this Matt, as Mr Dingwall has said, that you're going to reach out to and we want to know who they are.

N COSTELLO: As I said, I'll make Inquiries to find out who they are.

CHAIRMAN: So you're not going to tell us the names of those persons?

N COSTELLO: No, because I don't know. I'll have to make some Inquiries.

CHAIRMAN: I don't know if that answer Is satisfactory, Mr Costello.

N COSTELLO: Well, I can only do my best and I am going to get back to you.

CHAIRMAN: Why can't you tell us who you're going to talk to?

N COSTELLO: Look, I have to make Inquiries If people know this man. I'm not putting aspersions on other people if they've done nothing wrong.

CHAIRMAN: But you must have some inclination that these persons know of Matt and you must have spoken to your associates.

N COSTELLO: Yeah, but I'm not going go into it if they are not guilty. I'm just trying to find out who he is. I can bring the brochure back, probably the price list. I can chase that it [sic]. It might have his contact details on that. That's the best I can do at the moment.

CHAIRMAN: So you're not in a position to tell us the identity of those persons. Is that what you're saying to us?

N COSTELLO: Yes.

…”

[Emphasis added.]

27. Subsequently in the course of the interview, the plaintiff gave names of some of his associates. The plaintiff was also asked about the price list which he said that Matt had given to him. The following exchange ensued:

“CHAIRMAN: Are you sure this person is Matt? Are you sure you don’t know the identity of the person that supplied it to you?

COSTELLO: No, no.

CHAIRMAN: Mr Costello, I’m just wondering whether that evidence is actually factual or not, whether you know the identity of this person or you won’t give this person up.

N COSTELLO: I’m going to do everything in my power to get this Matt’s name and number and you can question him.

…”

[Emphasis added.]

The decision on 8 October 2018 to warn off the plaintiff

28. On 8 October 2018, Racing NSW sent a letter to the plaintiff’s solicitors as follows:

“Re: Mr Neil Costello - Warning Off

I refer your client Mr Neil Costello and his attendance at an Interview conducted by Racing NSW Stewards on Friday 6 October 2018.

While Mr Costello did provide further Information to the Stewards, including information that he failed or refused to provide at the earlier Interview, the following information is still outstanding:

1.   Full name and contact details of the person who provided him with a number of substances that were not dispensed In accordance with relevant State and Commonwealth legislation primarily Commonwealth AGVET code and NSW Poison and Therapeutic Goods Regulation (2008).

2.   Names of person/s he was going to contact to provide the full name and contact details of the supplier Identified in paragraph 1.

Further Racing NSW is not satisfied in respect to the evidence provided by Mr Costello regarding the circumstances surrounding the acquisition of the products from the unnamed person and the supply of these products to Mr Smith. In particular, Mr Costello is required to precisely detail how he procured the products, including but not limited to details of his communications with both the supplier and Mr Ben Smith and payment (with associated supporting documentation such as invoices and payment receipts).

Racing NSW Chief Executive Mr Peter V'landys AM has confirmed that the warning off issued against Mr Costello will remain in force until such time that the above information is provided to the satisfaction of Racing NSW.”

The plaintiff’s appeal to the Tribunal

29. The plaintiff relied on the notice of appeal dated 27 September 2018 in his appeal to the Tribunal against the decision of Racing NSW. He pressed grounds 1 and 3 and abandoned ground 2. Ground 1 was an alleged denial of procedural fairness and ground 3 was that the sanction of warning off was “manifestly unreasonable”.

30. The Tribunal, which was constituted by Mr Armati, heard the matter on 31 July 2019. Mr Street of counsel appeared on behalf of the plaintiff before the Tribunal and also before me. Mr Van Gestel appeared on behalf of Racing NSW in the Tribunal. The plaintiff did not give evidence at the Tribunal hearing, but relied on the evidence he had given before Racing NSW, extracts of which have been set out above. Early in the hearing before the Tribunal, the following exchange occurred:

“TRIBUNAL: In a warning off matter such as this, don’t I have to have regard to the evidence today?

C L W STREET: In my submission you’re able to proceed on the evidence that was before the decision-maker below.

TRIBUNAL: In other words, it’s not open to Mr Van Gestel [the representative for Racing NSW before the Tribunal] to ask the appellant today whether or not he’s going to provide these materials.”

31. Mr Street answered the Tribunal’s question in the negative, that being the obvious consequence of the plaintiff’s decision not to give evidence before the Tribunal.

32. At the conclusion of the hearing, the Tribunal gave ex tempore reasons for dismissing the plaintiff’s appeal pursuant to s 17(1)(a) of the RAT Act. In its reasons, the Tribunal set out the letter of 8 October 2018 (which is also set out above). It also set out LR 6. The Tribunal correctly noted that the RAT Act provided for a “de novo hearing”.

33. At [14] of its reasons, the Tribunal said:

“[14]   … The Tribunal notes in particular that the state of the evidence is that adduced at the conclusion of the Stewards’ Inquiry of 5 October. The [plaintiff] has not given any evidence and nor has any evidence otherwise been adduced to produce any material in answer to the two issues identified by [Racing NSW] in the letter of 8 October 2018.”

34. Of the plaintiff’s knowledge of Matt’s identity, the Tribunal found, at [36] of its reasons:

“It is to be noted that the [plaintiff] has not been able to adduce, nor do the Stewards have, evidence which would go to indicate, other than based upon conjecture on the various unfavourable determinations able to be drawn by them in respect of the [plaintiff], that in fact he does know anything more about the supplier Matt. Whilst it has an element of inherent implausibility about it, particularly for a person that was caught out in his lies, that it could be in fact that he simply does [not] know who Matt is.”

35. I read [36] as amounting to a conclusion that Racing NSW had not excluded, to the Briginshaw standard (named after Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, which the Tribunal held to be the appropriate standard) the hypothesis that the plaintiff did not know who Matt was.

36. The Tribunal addressed the plaintiff’s representation to Racing NSW that he would make inquiries about Matt as follows:

“[37]   It is in respect of the second ground of concern to them that there are issues of greater importance. The Tribunal has read onto this record the numerous occasions on which the [plaintiff] said he would make inquiries. There is not [a] skerrick of evidence that the [plaintiff] has done so. He comes before this Tribunal seeking to have it not determined that he should be disavowed from the industry on the basis the Stewards are forming assumptions, the assumptions that in fact the Appellant did know who the supplier contacts were and other people would as well, but there is no evidence that he has made any inquiries which might have dealt with those concerns back on 5 October 2018. It was open to him to do so. There is no evidence that he has not been able to do so, nor that he could not do so for any other reason that is apparent to the Tribunal.”

37. The Tribunal considered the plaintiff’s co-operation and said, at [43]-[44] of its reasons:

“[43]   This does not involve a blanket refusal to co-operate, but one which involved the [plaintiff] going and doing something. It has not been the subject of a submission, but it might be noted that between the interview of 6 October and the letter of 8 October there is no evidence of the [plaintiff] having done anything in fulfilling the inquiries which he undertook to take, the Tribunal has already found that between 8 October and today there is no evidence of the [plaintiff] having done so.

[44]   The inescapable conclusion is that the capacity of the Stewards to continue with their investigation into the supplier, known in these proceedings as Matt, has not been able to be progressed. So far as the aspects of co-operation with it by this [plaintiff] are concerned, no assumptions are required. It is quite apparent from reading the transcript of the Stewards' inquiry of 5 October as a whole that the [plaintiff] quite clearly understood what he was being asked to do and what he was required to do. Should the decision of the Stewards have been premature on 8 October, it is apparent from the findings to date that there has been no advancement which would cure that as of today.”

38. The Tribunal addressed the relevance of cobalt at [45]-[46]:

“[45]   As was said in Bennett, quoting from Vallender and other cases, the integrity of the industry is paramount. Integrity here involves a Stewards' investigation into the supply of products to a trainer and that trainer has subsequently presented two racehorses to race with the prohibited substance cobalt in them. It is quite a proper function of the Stewards to seek out every avenue to ascertain precisely what happened in respect of that matter, it could be that nothing that this Appellant did, nothing that Matt did in any way, at the end of the day is linked to the cobalt presentation, but at present that is not known. It is not known on the evidence available to the Tribunal.

[46]   The factual findings are made to the Briginshaw standard, The determination of the Tribunal is, on the factual matters it has made reference to, that as the Investigation is still potentially thwarted and will be until the Stewards are able to be satisfied by the completion of their Inquiries, until this Appellant co-operates with them and enables the completion of that Inquiry, that the protection and welfare of the Industry, in particular, in respect of its reputation, but also to some extent to which cobalt Is still possibly a welfare issue and undoubtedly so in excessive quantities, that there could be, but it is not an important determination, a welfare issue as well. Integrity and welfare matters are key matters. Integrity here is much more available as a relevant Issue.”

39. The Tribunal concluded, as follows:

“[48]   In those circumstances, until the Appellant has fully co-operated with the Stewards, the Tribunal is of the opinion that he should be warned off. That warning off is, to be clear, based on the failure to comply with the second of the grounds, namely the making of inquiries which, when made, may well assist the Stewards by further investigation or otherwise in respect of chasing down the person known as Matt.”

40. I note for completeness that it was not suggested by Mr Street that the plaintiff was prevented by the warning off order from making the inquiries which he said in the interview of 5 October 2018 that he would make.

The grounds in the amended summons

41. The plaintiff relied on the following grounds:

“1   The first defendant's decision was legally unreasonable because:

a.   The finding that the plaintiff had not cooperated with the stewards was not open on the evidence: Reasons at [46], [48].

b.   The first defendant failed to take into account or engage with the evidence and submissions that the plaintiff’s statement as to the making of enquires was speculative only and that he did not in fact know anyone who knew the supplier.

c.   The first defendant took into account an irrelevant consideration namely the presence of cobalt in racehorses where the evidence was that no cobalt was contained in the material supplied by the plaintiff: Reasons at [45]-[46].

2   It was a denial of procedural fairness to draw an adverse inference against the plaintiff by reason of the plaintiff not giving evidence before the first defendant in circumstances where the plaintiff was not required to do so and was not otherwise given notice that an adverse inference would be drawn and one was not requested by the second defendant.”

Consideration

The operative decision

42. The decision of the Tribunal is the operative decision and therefore is the only decision which can be, in the circumstances of the present case, the subject of judicial review: Wishart v Fraser (1941) 64 CLR 470 at 476-477 (Rich ACJ), 478 (Starke J), 483 (Dixon J) and 487 (McTiernan J); [1941] HCA 8.

Ground 1: alleged legal unreasonableness

Ground 1a: allegation that finding of non-co-operation was not open on the evidence

43. On 31 July 2019 the Tribunal was faced with the situation that the plaintiff, who had indicated to Racing NSW on 5 October 2018, some nine months previously, that he would make inquiries, had adduced no evidence that he had made any of the inquiries which he told Racing NSW that he would make. As appears from the transcript of the interview with the plaintiff on 5 October 2018, he represented several times that there were inquiries that he could make to ascertain the identity of Matt. In these circumstances, the Tribunal’s finding that the plaintiff had not co-operated with Racing NSW was open to it. I note that it is plain from [43] of the wording of the Tribunal’s reasons that its finding as to the extent of non-co-operation was limited to the plaintiff’s failure to make the inquiries which he undertook, on 5 October 2018, to make. This is sufficient to address ground 1a, which has not been made out.

Ground 1b: allegation that the Tribunal failed to take into account that the plaintiff might not have known anyone who knew Matt

44. As to ground 1b, it is plain from [36] of its reasons that the Tribunal refrained from drawing an inference adverse to the plaintiff that he knew Matt’s contact details and was simply not disclosing them to Racing NSW. Thus, the Tribunal proceeded on the footing, which was favourable to the plaintiff, that the plaintiff did not know any more about Matt than he had disclosed to Racing NSW, but that, in accordance with the representations he had made, that there were inquiries he could make which might, or might not, prove fruitful. In these circumstances, the Tribunal not only engaged with the possibility that the plaintiff did not know more about Matt, but accepted that he did not know more about Matt. For these reasons, ground 1b has not been made out.

Ground 1c: alleged error in taking account an irrelevant consideration

45. Mr Street argued that, in so far as Racing NSW and the Tribunal considered the dangers posed to the integrity of horse racing by the substance cobalt, this was an irrelevant consideration since the products which the plaintiff supplied to Mr Smith were not shown to contain any cobalt.

46. Ground 1c would appear to rest on a misapprehension about this Court’s jurisdiction under s 69 of the Supreme Court Act. This Court’s jurisdiction is confined to two kinds of errors, both of which are errors of law: errors on the face of the record and jurisdictional errors. For a failure to take into account a relevant consideration to amount to an error of law, the consideration must be one which the decision-maker is bound, as a matter of law, not to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40 (Mason J); [1986] HCA 40. It was not disputed that Racing NSW was entitled to investigate Mr Smith, whose racehorses had traces of cobalt in their blood. Nor was it disputed that Racing NSW was entitled to investigate the plaintiff, since there was evidence that he had supplied certain products to Mr Smith. The Tribunal was not disentitled to be concerned about the presence of cobalt in Mr Smith’s horses when deciding on a suitable penalty for the plaintiff’s failure to co-operate. That there was no evidence that the products which the plaintiff supplied to Mr Smith contained cobalt did not make concern about cobalt irrelevant to the wider investigation. This was a factual issue for the Tribunal and Racing NSW and is not a basis on which this Court could intervene.

Whether the Tribunal’s finding that the investigation conducted by the Stewards was “potentially thwarted” by the plaintiff’s lack of co-operation was open

47. The grounds in the amended summons do not contain an express ground that the Tribunal’s finding that the investigation conducted by the Stewards was “potentially thwarted” by the plaintiff’s lack of co-operation was not open. However, Mr Street made submissions, both orally and in writing in support of this submission. As I understood the submission it was that the plaintiff had given Racing NSW the names of many of his associates, which meant that the stewards could have made their own inquiries and were not dependent on the plaintiff making inquiries of his own on their behalf. Mr Street argued that the investigation could not be said to have been “thwarted”.

48. It is beside the point that the stewards of Racing NSW had various inquiries which they could have made. The Tribunal’s finding, that the plaintiff’s failure to make the inquiries which he said that he would make “potentially thwarted” investigation, was open. Racing NSW was entitled to take the plaintiff at his word that there were inquiries which he could make which might be sufficient to identify Matt. Whether or not such inquiries would have been able to identify Matt was a matter that could not be known until the plaintiff made them and told Racing NSW or the Tribunal what they were.

Ground 2: alleged denial of procedural fairness

49. Mr Street raised in oral submissions the circumstance that Racing NSW had warned off the plaintiff for the two reasons given in the letter of 8 October 2019 but that the Tribunal had warned him off for a different reason: failure to make the inquiries which he undertook to Racing NSW that he would make at the hearing of 5 October 2018. As I understood Mr Street’s submission, he confirmed that he did not rely on this as a ground of procedural unfairness. That concession was correctly made. Parliament made express provision in s 16 of the RAT Act for the appeal to be by way of new hearing. Accordingly, the Tribunal was not bound by the reasons given by Racing NSW for its decision to warn the plaintiff off, but was obliged to determine the matter for itself at the time at which the Tribunal made its decision.

50. I note for completeness that those who are licensed by Racing NSW are entitled to a statement of charge setting out the basis of any disciplinary action. Mr Dawson confirmed that there is no provision for those, such as the plaintiff, who are not licensed by Racing NSW and who are, relevantly, in the category of members of the public, to be given a statement of charge. Although there was some suggestion that the plaintiff had once been licensed by Harness Racing NSW, it was not suggested that this was relevant to the present case. Mr Street, accordingly, did not take any point based on the absence of a statement of charge.

51. Ground 2 was based on the inferences drawn against the plaintiff by his choosing not to give evidence before the Tribunal. I consider that the exchange extracted above between the Tribunal and Mr Street about the relevant evidence being the evidence as at 31 July 2019 and the question whether the plaintiff was going to give evidence before the Tribunal was sufficient to put the plaintiff, and Mr Street, on notice of the inference that would be available to be drawn against the plaintiff if he chose to maintain his decision not to give or adduce evidence as to any inquiries he had made and the results of any such inquiries.

52. In order to assess the inferences drawn by the Tribunal, it is necessary to analyse the chronology of events which are summarised above. On 5 October 2018, the plaintiff undertook to make certain inquiries, which he gave Racing NSW to understand would be likely to be fruitful in finding out more about Matt. On the appeal, which was a rehearing, on 31 July 2019, there was no evidence that the plaintiff had made any of the inquiries which he had undertaken to make.

53. There were at least four possibilities as to what had occurred between 5 October 2018 when the plaintiff undertook to make inquiries and 31 July 2019 when the Tribunal heard the plaintiff’s appeal:

1. the plaintiff made some or all of the inquiries which he undertook to make and obtained further information about Matt but decided not to reveal the results of such inquiries to Racing NSW at any time between his making the inquiries and 31 July 2019 or to the Tribunal at the hearing of the appeal on 31 July 2019;

2. the plaintiff made some or all of the inquiries which he undertook to make but did not obtain any further information about Matt and decided not to reveal that fact to Racing NSW at any time between his making the inquiries and 31 July 2019 or to the Tribunal at the hearing of the appeal on 31 July 2019;

3. the plaintiff decided not to make any of the inquiries which he undertook to make and appreciated that it would not be in his interest to divulge his lack of co-operation either to Racing NSW at any time between 5 October 2018 and 31 July 2019 or to the Tribunal at the hearing of the appeal on 31 July 2019; or

4. the plaintiff did not need to make any inquiries because he knew, and has known at all material times, Matt’s identity and was attempting to delay Racing NSW’s investigation when he undertook to make inquiries at the hearing on 5 October 2018.

54. The fourth possibility can be excluded at the outset because the Tribunal found, at [36] that it was possible that the plaintiff did not know any more about Matt than he had divulged to Racing NSW. Because the plaintiff chose not to give evidence, the Tribunal could not determine which of the first three possibilities was in fact the case. However, each of them amounted to a failure by the plaintiff to co-operate with Racing NSW and a failure by him to fulfil the representations he had made at the hearing on 5 October 2018 as to the inquiries he could and said he would make.

55. Mr Street did not contend that the plaintiff was entitled to the privilege against self-incrimination such as would have applied had he been charged with a criminal offence. In other words, he did not submit that the plaintiff was entitled to have the Tribunal prohibited from drawing inferences against him by reason of his not giving evidence at the hearing on 31 July 2019: Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25 at [51] (Gaudron, Gummow, Kirby and Hayne JJ). Mr Street accepted that the Tribunal was permitted to draw Jones v Dunkel inferences (so-called after Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8) as long as they were drawn “reasonably”.

56. The question of the right to silence in disciplinary proceedings against a barrister was considered by the Court of Appeal in Council of the New South Wales Bar Association v Power (2008) 71 NSWLR 451; [2008] NSWCA 135. In that case, one of the issues was what had happened to an F drive, which was a drive on which the respondent was alleged to have stored images of child pornography. The F drive was not found when a search warrant was executed soon after the respondent had been alerted to the allegations against him. Hodgson JA said, at [22]:

“If this had been a criminal trial, then in my opinion what the High Court said in Azzopardi would have meant that a jury could have been told that inferences from proved facts could more safely be drawn because the opponent elected not to give any explanation in terms of additional facts peculiarly within his knowledge or any evidence of such facts. In my opinion, if such Jones v Dunkel reasoning is available to a jury in a criminal trial, it must a fortiori be available to a court in civil proceedings such as the present. That would be so, even if these civil proceedings are regarded as proceedings for a civil penalty. I note that a similar view was expressed by Hill J in Australian Competition and Consumer Commission v Universal Music Australia Pty Ltd (2001) 115 FCR 442 at 456 [33].”

57. This passage was followed in Prothonotary of the Supreme Court of New South Wales v Nikolaidis [2010] NSWCA 73 where the Court of Appeal (Allsop P, McColl JA and Young JA) said at [25]:

“In circumstances where the respondent chooses not to come forward to assist by giving evidence in the disciplinary proceeding, the failure to provide an exculpatory statement or explanation means that inferences from proved facts can be drawn more safely because the defendant has failed to give any explanation of matters peculiarly within his knowledge: Azzopardi v The Queen [2001] HCA 25; 205 CLR 50; Weissensteiner v The Queen [1993] HCA 65; 178 CLR 217; Power at 463-467 [20]-[29]; and Einfeld at [23]...”

58. In the present case, the issue is, in my view, even clearer. The plaintiff undertook to Racing NSW on 5 October 2018 to make certain inquiries to advance the identification of the person whom he said he knew as “Matt”. Notwithstanding the passage of nine months since he was first warned off, he did not adduce in his appeal to the Tribunal any evidence of what, if any, inquiries he had made and, if he had made any such inquiries, what the results were of such inquiries. The plaintiff was in a unique position to know whether he had made inquiries and what the results of the inquiries were. Mr Street conceded that Racing NSW bore no onus on the appeal of proving that the plaintiff had not made any inquiries.

59. Although in the letter of 8 October 2018 Racing NSW did not, in terms, require the plaintiff to make the inquiries which he had undertaken to make, it is plain from its terms that Racing NSW sought the information which the plaintiff had informed it on 5 October 2018 that he would need to make inquiries to ascertain.

60. In these circumstances, I am not persuaded that there was any denial of procedural fairness. The Tribunal was entitled to take into account that the plaintiff had decided not to give evidence when deciding whether the warning off ought stand. Indeed, any finding to the contrary would have been arguably perverse.

61. I note that, there was, other than as set out above, no challenge to the Tribunal’s decision to dismiss the appeal from Racing NSW’s decision to warn off the plaintiff. In particular, there was no challenge to Racing NSW’s power to warn the plaintiff off, it being accepted that, as the plaintiff was not licensed by Racing NSW, there was no other available remedy and that the remedy of warning off was provided for by LR 6, which extended to “any person”, whether licensed or not.

Conclusion

62. The plaintiff has failed to make out any of his grounds of appeal. The parties agreed at the conclusion of the hearing that there was no reason why costs ought not follow the event in accordance with the general rule: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.

Orders

63. For the reasons given above, I make the following orders:

1. Dismiss the amended summons filed on 18 September 2019.

2. Order the plaintiff to pay the second defendant’s costs of the proceedings.

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Amendments

14 May 2021 - "an irrelevant" replaced by "a relevant" - [46]

Decision last updated: 14 May 2021