Day v Sanders

The applicants, trainers and owners of harness racing horses, sought judicial review of a decision by stewards of Harness Racing NSW to disqualify them from racing. The stewards' inquiry found that horses trained by the applicants had returned positive swabs for prohibited substances, leading to the disqualification. The applicants contended that a member of the stewards' panel harboured apprehended bias due to prior involvement in related matters, and that the offence under rule 190 of the Australian Harness Racing Rules was not one of absolute liability, meaning a defence of honest and reasonable mistake of fact should have been available. The respondents argued that the statutory right of appeal to the Racing Appeals Tribunal was an exclusive remedy, precluding judicial review. The case was heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the applicants were precluded from seeking judicial review due to the availability of a statutory appeal to the Racing Appeals Tribunal, and whether the offence under rule 190 of the Australian Harness Racing Rules was one of absolute liability, thereby excluding a defence of honest and reasonable mistake of fact. Additionally, the Court considered whether a member of the stewards' panel had demonstrated apprehended bias, warranting recusal.

The Court of Appeal held that the statutory right of appeal to the Racing Appeals Tribunal was not exclusive, and therefore judicial review was available. However, the Court found no apprehended bias on the part of the stewards' panel member, concluding that their prior involvement did not create a logical connection to the inquiry that would lead a reasonable observer to apprehend bias. Regarding the offence under rule 190, the Court determined that the rule-making power of Harness Racing NSW, as conferred by the *Harness Racing Act 2009* (NSW), permitted the creation of absolute liability offences. Consequently, the defence of honest and reasonable mistake of fact was not available.

The Court of Appeal dismissed the summons for judicial review and refused leave to appeal from one of the judgments below, while granting leave to appeal from another judgment but ultimately dismissing that appeal. The applicants were ordered to pay the respondents' costs in all proceedings.