Jerrick v Greyhound & Harness Racing Regulatory Authority

[2008] NSWSC 203

CITATION:	Jerrick v Greyhound & Harness Racing Regulatory Authority & Anor [2008] NSWSC 203
HEARING DATE(S):	21 and 22 February 2008
JUDGMENT DATE :	12 March 2008
JUDGMENT OF:	Smart AJ
DECISION:	Application for Judicial Review dismissed
CATCHWORDS:	No denial of procedural fairness or jurisdictional error on the part of Greyhound and Harness Racing Appeals Tribunal - Duties of specialist Tribunal acting on its own specialist knowledge and its capacity to draw inferences
LEGISLATION CITED:	Greyhound and Harness Racing Administration (Appeals) Regulation 2004
CASES CITED:	Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Cameron v Holt (1980) 142 CLR 342 Campbelltown City Council v Vegan (2006) 67 NSWLR 372 Dugdale v Kraft Foods Ltd [1977] 1 All ER 454 F R Waring (UK) Ltd v Administracao Geral etc [1983] Lloyds L R 45 He Kaw Teh (1985) 157 CLR 523 McPhee v S Bennett Ltd 1934 WN (NSW) 8 at 9 Padfield v Minister for Agriculture, Fisheries and Food [1968] AC 997 Proudman v Dayman (1941) 67 CLR 536 Public Service Board of NSW v Osmond (1985-1986) 159 CLR 656 R v Industrial Appeals Court; Exp Maher 197 Re Refugee Review Tribunal Exp. Aala (2000) 204 CLR 82 Sherras v De Rutzen [1895] 1 QB 918 Slapjums v City of Knox (No 1) 1978 VR 325 The Queen v Australian Stevedoring Industry Board, Exp Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 Turnbull v NSW Medical Tribunal Board [1976] 2 NSWLR 281
PARTIES:	Jerrick v Greyhound & Harness Racing Regulatory Authority & Anor
FILE NUMBER(S):	SC 30049/07
COUNSEL:	M Cranitch SC & S Blount (P) D Robertson (D1)
SOLICITORS:	Commins Hendricks (P) T Orlizki (D1) T Orlizki (D2)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

SMART AJ

Wednesday, 12 March 2008

30049/07

JERRICK v GREYHOUND & HARNESS RACING REGULATORY AUTHORITY and GREYHOUND and HARNESS RACING APPEALS
TRIBUNAL

JUDGMENT

1 This is an application for judicial review of the Tribunal’s decision dated 7 February 2008 disqualifying Mr Jerrick from training horses for eight months. The Authority opposed the application. The Tribunal submitted to the orders of the Court. In Turnbull v NSW Medical Tribunal Board [1976] 2 NSWLR 281 at 297 Glass JA held that in Appeals to the supervisory jurisdiction of the Court only errors going to jurisdiction or denials of natural justice can be ventilated. In Campbelltown City Council v Vegan (2006) 67 NSWLR 372 at [19] Handley JA referred to the judgment of Glass JA in Turnbull and the identification of the number of different forms so called appeals may take.

2 On 10 January 2008 Kenneth Jerrick, a licensed trotting trainer for 18 years, was disqualified, by the Authority through the Major Inquiry Steward, from training trotting horses, for presenting a horse for a race otherwise than free of prohibited substances. This was an offence under Australian Harness Racing Rule 190. On appeal against the severity of the penalty, heard on 7 February 2007, the Tribunal reduced the period of disqualification from nine to eight months, taking the view that Mr Jerrick did in the ultimate plead guilty before the Major Inquiry Steward, (Mr P R Callaghan SC), and that a little more emphasis could have been given to that fact. Except for this variation the Tribunal affirmed Mr Callaghan’s decision and its underlying reasons. Mr Jerrick felt that there were substantial mitigating factors which had not been given sufficient weight and that he should have been fined rather than disqualified. I am not permitted to undertake a merits review of the Tribunal’s decision, that is, I may not consider whether the penalty was appropriate or excessive.

3 The material before Mr Callaghan indicated that about ten days before the race at Wagga Wagga on 20 October 2006 the horse Ar Tee Kay NZ was exhibiting some symptoms of tying up. Mr Jerrick contacted his veterinary adviser who suggested to Mr Jerrick that he might administer Kynoselen. She told him that Kynoselen had a withholding period of 72 hours. This was repeated by his stock feed provider. Mr Jerrick administered by intramuscular injection 20 mls of Kynoselen on the Saturday before the Friday race. This appeared to be having a beneficial result. Mr Jerrick stated at the Major Inquiry Steward hearing that in order to ensure that the horse would be in a fit condition for racing on the following Friday he gave the horse “another 20 mls in the muscle on Monday morning before close of nominations.”

4 Kynoselen contains a product known as Heptaminol. Heptaminol is a prohibited substance. A post-race urine sample taken from the horse revealed the presence of Heptaminol.

5 Mr Callaghan accepted that the horse performed in the race consistently with its prior form and that there was no significant support for the horse in the pre-race betting.

6 Rule 190 of the Australian Racing Rules relevantly provides:

(1) A horse shall be presented for a race free of prohibited substances

(2) If a horse is presented for a race or otherwise than in accordance with sub-rule (1) the trainer of the horse is guilty of an offence

(4) An offence under sub rule 2 … is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse.

7 Mr Callaghan took the view that the prohibited substance rule is one of absolute liability and that the circumstances by virtue of which the prohibited substance was found to have been present in the horse when it was presented to race do not bear on liability for the offence but may bear on penalty. There were no submissions to the contrary on the appeal to the Tribunal.

8 Mr Jerrick appeared in person before the Major Inquiry Steward but was represented by counsel on the appeal.

9 During the hearing before Mr Callaghan he pointed out that it was the trainer’s responsibility to present the horse for racing free of prohibited substances and that there were risks in the therapeutic treatment of horses prior to racing. Mr Jerrick responded “by using it in the muscle Ar Tee Kay must have withheld heptaminol in his system.” In other worse, it had not dissipated as quickly as he had been advised. That heptaminol was withheld in the horse’s system was beyond dispute. There was no dispute that Mr Jerrick believed the horse was prohibited substance free when he presented Ar Tee Kay for racing, having regard to the veterinary advice which he had received.

10 The Tribunal’s decision was attacked on a number of grounds.

Denial of procedural fairness

A number of points were raised under this umbrella.

11 It was submitted that the Tribunal (Mr Thorley) erroneously failed to grant an adjournment of the hearing. As the submissions developed the complaint was that certain remarks of the Tribunal led counsel not to apply for an adjournment.

12 The transcript of proceedings before the Tribunal is not complete. There are two gaps. At the top of page 3 it is noted that portion of the proceedings had been over recorded. At the top of page 4 a “Tape changeover” is recorded.

13 Mr M B Inglis of counsel who appeared for Mr Jerrick before the Tribunal after referring to the transcript provided by it said:

“To the best of my recollection, at a point in the proceedings I said words to the effect of:

‘If the tribunal is concerned that the administering of the drug intramuscularly as opposed to intravenously could have led to it having a cumulative effect then this is a matter for expert evidence and neither side has such expert evidence’.”

and

‘If there is genuine concern about this issue and it is likely to affect the tribunal’s view of the matter then I would require an adjournment to obtain such evidence’.”

14 Words to this effect do not appear in the transcript. Mr Inglis could not recall the precise words used by the Tribunal but said that Mr Thorley indicated that he did not think that much turned on the issue. Mr Inglis said that he was satisfied that there would be no prejudice to Mr Jerrick and an adjournment application was not necessary.

15 On examining the transcript provided by the Tribunal it appears that towards the end of the hearing (p6) one of the assessors sitting with Mr Thorley confirmed with Mr Jerrick that he intramuscularly injected the horse. Mr Jerrick explained why the injection was administered intramuscularly rather than intravenously and that the packet said intramuscularly.

16 Mr Inglis said that he had a clear recollection of the discussion about intramuscular injection. It was not a reconstruction. He could not say at what point of the hearing it took place.

17 The terms of pages 6 and 7 of the Tribunal transcript were put to Mr Inglis in cross-examination. Mr Inglis said that while an assessor raised the matter of intramuscular injection, at pp 6 and 7 of the transcript just before the hearing concluded, Mr Thorley raised the matter earlier and it was dealt with briefly by Mr Thorley.

18 No one gave evidence on behalf of the Authority disputing what Mr Inglis said, for example, Ms Viglianti, who represented the Authority. I have taken into account the Authority’s submission that Mr Inglis’ evidence is probably incorrect especially when regard is had to the terms in which the question of intramuscular injection was raised at pp 6-7 of the Tribunal transcript.

19 Mr Inglis insisted that he knew the import of what was said. I accept that the exchange on the question of intramuscular injection was brief. Mr Inglis was doing his best to tell the truth and was a reliable and responsible witness. I accept Mr Inglis’ evidence. If he had thought that on the question of penalty any weight was to be given to intramuscular injection of the drug and the alleged slower rate of dissipation when this method was used in circumstances where two doses of 20 mls each were administered within two days and the latter dose three clear days before the race day, Mr Inglis would probably have applied for an adjournment so that expert evidence could be obtained and, if favourable, called.

20 In its reasons for its decision the Tribunal (constituted by the long serving now retired District Court Judge Thorley) after noting that both Mr Jerrick’s veterinary adviser and stock feed supplier had advised Mr Jerrick that Kynoselen had a withholding period of 72 hours stated:

“… it might now be reasonably inferred that the fact that the urine presented with the prohibited drug more than three days later from its last injection reflects the fact that there could have been a build up of the drug within the horse’s system, a fortiori when it had been delivered intramuscularly which notoriously permits of a slower dissipation rate than is the case when the drug is administered intravenously.”

21 The Tribunal is not bound by the rules of, or practice as to, evidence and may inform itself of any matter in such manner as it thinks fit: cl 24 of Greyhound and Harness Racing Administration (Appeals) Regulation 2004. The Tribunal is a Specialist Tribunal, Mr Thorley being assisted by two harness racing assessors: s 30(1)(b). They are persons whom the Minister believes have special knowledge of, and experience in the harness racing industry. As mentioned, one of the assessors clarified that Mr Jerrick intramuscularly injected the horse rather than administer an intravenous injection and appeared to think that this was a point of some importance. Mr Jerrick explained why he injected the horse intramuscularly.

22 It is not notorious to me that an injection delivered intramuscularly dissipates at a slower rate than one delivered intravenously. It may be notorious within the Harness Racing Industry that that is so and that would be something that this specialist Tribunal would know.

23 The Tribunal was endeavouring to provide a possible explanation why the stated withholding period of 72 hours was inadequate when two doses of Kynoselen, each of 20 mls were administered fairly close together and injected intramuscularly rather than intravenously. It was asserted that it was notorious that doses delivered intramuscularly dissipated at a slower rate than when the drug is administered intravenously.

24 I do not accept the submission that the Tribunal was saying that Mr Jerrick was careless. Rather it was saying that there was possibly a build up of the drug in the horse’s system and because of the notoriously slower dissipation rate of the drug when injected intramuscularly Mr Jerrick did not allow sufficient time before presenting the horse for a race in that there was a risk that the horse would not be drug free. They were relevant matters on the question of penalty.

25 While there was no dispute as to the presence of Heptaminol and it was ascertained both before Mr Callaghan and the Tribunal that the doses had been administered intramuscularly rather than intravenously Mr Jerrick and his counsel were not told that the Tribunal proposed to rely on it being notorious that drug doses administered intramuscularly rather than intravenously dissipated more slowly. That is not a matter of common knowledge and does not fall within the scope of the principle of notorious facts acknowledged without evidence.

26 Cross on Evidence, Fifth Australian Edition (JD Heydon) 1996 at [3135] refers to the problem which can arise as to the extent to which a professional tribunal can use its specialist knowledge. Reference is made to a distinction being drawn between general expertise which enables the specialist tribunal to understand quickly the evidence before it and to draw appropriate inferences from the evidence and special knowledge which permits it to assert the existence of a particular fact. The author points out:

“In the latter case it is not proper for the tribunal to act upon such special knowledge without disclosing it to the parties and affording them the opportunity to rebut it or qualify by argument or by adducing evidence of the existence of that particular fact or by assigning a different significance to it.”

27 For these propositions the author relied on R v Industrial Appeals Court; Exp Maher 1978 VR 126 at 143 (FC), Slapjums v City of Knox (No 1) 1978 VR 325 at 341-342 (McInerney J); Dugdale v Kraft Foods Ltd [1977] 1 All ER 454 (Phillips J) and F R Waring (UK) Ltd v Administracao Geral etc [1983] Lloyds L R 45 at 49 (Robert Goff J). None of these cases are on all fours with the present case but taken together they support the proposition advanced by the author.

28 In this case on the evidence before it the Tribunal could reasonably infer that there could have been a build up of the drug within the horse’s system. However, its assertion that an injection delivered intramuscularly notoriously permits of a slower dissipation rate than is the case when the drug is administered intravenously appears to be based upon special knowledge. I have not overlooked that the assertion follows upon the inference that could reasonably be drawn and is preceded by the words “a fortiori”.

29 The Authority pointed out that Mr Jerrick had filed no evidence rebutting or qualifying the assertion the Tribunal made as to the notoriety or common knowledge in the Harness Racing Industry of what it asserted.

30 There was no evidence on the hearing of this application either that favourable expert evidence negativing the proposition suggested or negativing or qualifying that it was notorious that intramuscular injection of doses of prohibited drugs dissipated more slowly than those administered intravenously and/or that there was a greater risk when two doses were injected within two days of each other was available. I would not have expected detailed evidence but I would have expected either an affidavit or report as to the evidence likely to be available. Nor was it made apparent that anything could be put by way of submissions that would relevantly qualify the situation. Mr Jerrick’s belief and the basis on which he had acted were in evidence and appear to have been taken into account. It has not been shown on a reasonably arguable basis or any basis that Mr Jerrick has lost anything by the course which was taken. It is not enough for him or his counsel to say that if he had not been told that not much turned on the issue he would have applied for an adjournment and then he may have found some evidence possibly expert evidence, to assist him and then lead no evidence before this Court outlining the evidence on which reliance would be placed.

31 In Re Refugee Review Tribunal, Exp. Aala (2000) 204 CLR 82 it was held that it would ordinarily be inappropriate for a court to speculate upon the question whether the failure of a decision maker to accord procedural fairness to an affected person made any difference to the final result. There is also the effect on credibility of a person being deprived of a fair opportunity of presenting his or her case. I am not seeking to determine any issue but to ascertain whether there is some relevant evidence available. Speculation is not involved.

Lack of Complete Transcript

32 It was further contended that the Tribunal’s failure to provide a complete transcript of the proceedings constituted a denial of procedural fairness. Some reliance was placed on the fact that during the hearing the proceedings appeared to be being recorded and that this induced the belief that a complete record was being made. It is a prudent precaution for a record to be made as it obviates the need to rely on fallible recollections and that would facilitate any inquiry held by the Authority under s 24 of the Greyhound and Harness Racing Administration Act 2004. The Authority contended that the Tribunal was not required to keep a record of its proceedings. Mr Jerrick has no right of appeal from the decisions of the Tribunal. He may apply to this Court for judicial review.

33 The Authority submitted that the duty of a court or arbitrator or a tribunal to keep a record of the proceedings depends on there being an appeal from such court or arbitrator or tribunal. In Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 Bryson JA, with whom Handley JA and Bell J agreed, held at [32] that the absence of a record of the proceedings was a serious shortcoming because it greatly impedes the right of appeal. At [34] he said, “The practice requiring a record of proceedings before arbitrators to be made and kept is of high importance for the effectuality of proceedings on review …”.

34 The Authority pointed out that here was no appeal from the Tribunal’s decision. Judicial review alone was available. Counsel for Mr Jerrick contended that this was a quasi judicial Tribunal and proceeding and that while it was dealing with an offence of a civil kind it was punishable either by way of fine and/or disqualification (r 256) which affected the horse trainer’s livelihood. The right of judicial review was an important one and without a complete transcript it was hard for Mr Jerrick to exercise that right.

Alleged Lack of Adequate Reasons

Mr Jerrick dealt with this matter under the heading of Jurisdictional Error,

35 The point as to an incomplete transcript is closely linked to the complaint that the Tribunal did not give adequate reasons. The requirement to give adequate reasons is a normal but not a universal incident of judicial process. In Public Service Board of NSW v Osmond (1985-1986) 159 CLR 656 at 667 Gibbs CJ with whom Wilson, Brennan and Dawson JJ expressly agreed, said (citations omitted):

“That does not mean that the requirement is an incident of a process which is not judicial but administrative; there is no justification for regarding rules which govern the exercise of judicial functions as necessarily applicable to administrative functions, which are different in kind. Moreover, the principle that judges and magistrates ought to give reasons in any case in which an appeal lies from the decision provides a quite inadequate basis for the suggested further principle that a body exercising discretionary administrative powers must give reasons to enable persons affected by the exercise of the power to bring proceedings for judicial review. That suggested principle would undermine the rule, well established at common law that reasons do not form part of the record, for the purposes of certiorari, unless the tribunal chooses to incorporate them.”

36 At 676 Deane J held that the ordinary common law position remained, “namely, that where, as a matter of ordinary construction, the relevant statutory provisions do not impose an obligation to give reasons, the rules of natural justice will not remedy the omission. Deane J referred with approval to the statement that there is no general rule of English law that reasons musty be given for administrative decisions. Of course, if a Tribunal does give reasons the Court can examine them to see if they reveal error. See Padfield v Minister for Agriculture, Fisheries and Food [1968] AC 997 and Osmond at 662 where Gibbs CJ said:

“There is no general rule of the common law, or principle of natural justice that requires reasons to be given for administrative decisions even decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interests or defeat the legitimate or reasonable expectations of other persons.”

37 The Authority pointed out that the transcript was provided after the Tribunal’s decision had been arrived at. The decision bears date “7 February 2007” and appears to have been communicated about 19 February 2007. That was the date on which Mr Jerrick’s solicitor received a copy of the decision. The Authority contended, and probably correctly, that the question of the transcript did not arise until after the decision was made. The decision appears to have been made while everything was fresh in the memory of the Tribunal and the assessors. At the top of p 3 of the transcript this note appears “[Portion of proceeding over recorded by appeal decision]”

38 If that note is accurate (and there is no reason to doubt its accuracy) and it is a reference to the appeal decision in the present case and with the appeal decision occupying the best part of two A4 size sheets of paper, that would suggest quite a substantial amount of the tape of the hearing was over recorded. The transcript has only portion of the submissions of Mr Inglis to the Tribunal. It is difficult to assess what was omitted. The length of the gap on the changeover of the tapes and the assessment of what was omitted are also matters of some difficulty. So much depends on the equipment and the staff skills in using that equipment. However, it seems that any transcription took place after the Tribunal reached its decision.

39 In Osmond at 670 Gibbs CJ pointed out that it was difficult to see how the fairness of an administrative decision can be affected by what is done after the decision has been made.

40 The Authority’s point was that the Tribunal’s decision was reached on the day of the hearing and after a short hearing. There was not a lot of material to consider. The issue was confined. Preparation of the transcript probably took place subsequently, that is, after the decision was reached and after the request of 23 February 2007 of Mr Jerrick’s solicitors for a copy of the transcript of the hearing The Authority contended that as this case involved the supervisory jurisdiction of the Court and not an appeal the absence of a complete transcript was not critical. I have earlier dealt with the complaint that Mr Jerrick was lulled into not seeking an adjournment by the Tribunal’s comment earlier recorded.

41 Mr M Inglis denied that he faintly argued that a fine was an appropriate penalty as stated in Mr Thorley’s decision. He contended that it was central to the submission which he made that suspension or disqualification was not required in the circumstances and that a fine was the appropriate penalty. Mr Inglis asserted that he said words to the effect of:

“Although in the past penalties imposed for breach of this rule usually involved a suspension or a disqualification fines were sometimes imposed.”

and

“I cannot think of a more appropriate case for the imposition of a fine as opposed to a suspension or a disqualification.”

42 In his reasons Mr Thorley said:

“Mr Callaghan determined that the Appellant had to suffer the result of a disqualification. With this approach there can be no dispute. Indeed Mr Inglis … did not seek to dissuade us from this view – although he did faintly argue that it was a case for the imposition of a fine. Mr Callaghan, in taking the view that he did, had followed the dictates of previous decisions of this Tribunal and we think he is in no error in so doing.”

43 Mr Inglis is recorded in the partial transcript provided as saying:

“If you do not think at the end of the day a fine is an appropriate penalty we would submit, and ask you, to disqualify him for a much lesser period …”

44 While Mr Inglis believed that it was central to his submissions that Mr Jerrick should be fined and not suspended or disqualified, this did not appear to be communicated to Mr Thorley. The terms of the decision suggest that Mr Thorley thought that there had to be a disqualification rather than a fine. The transcript does not reveal what was said on this point but the main point of the severity appeal was to have a fine imposed in lieu of the disqualification. Mr Jerrick believes that everything he did was done on veterinary advice.

45 In Vegan Handley JA, with whom McColl JA agreed said at [23]

“In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 270 Mahoney JA referred to ( Pettit v Dunkley [1971] 1 NSWLR 376 at 381] and said “…Thus the statement of reasons may be necessary to enable a party to exercise his right of appeal or such other rights as he may have to contest the decision : this is one of the conventional functions of the requirement.” (emphasis supplied)

46 At [24] Handley JA held that this reasoning applied where there is an appeal from an administrative decision maker to a panel or from an expert to a panel of experts. Handley JA’s remarks were made in a different statutory context where there was an appeal. I doubt if either Mahoney JA or Handley JA were referring to rights of judicial review.

47 In my opinion the Tribunal in the present case was not under a duty to cause to be made and provide a complete transcript. The provision of the transcript arose after the decision of the Tribunal was made. While I will deal further with the complaint that there was a lack of adequate reasons I hold that the Tribunal as an administrative body was under no duty to provide reasons. However, having done so, an examination of the reasons reveals that they were not inadequate. I am not entitled to apply rights akin to appeal rights. I am confined to judicial review.

Jurisdictional Error

A number of complaints were made under this head.

The Tribunal failed to exercise its jurisdiction under s 21 of the Greyhound and Harness Racing Administration Act 2004.

48 That section provides that the appeal is to be by way of a new hearing and fresh evidence or evidence in addition to or in substitution for the evidence on which the decision appealed against was made, may be given on appeal.

49 It was submitted that the Tribunal had not done what the section commanded, that is, held a new hearing and reached its own independent decision on the merits. Instead it had satisfied itself that the decision of Mr Callaghan was one which he reasonably might have made.

50 This does not reflect what happened. The Tribunal had before it the transcript and reasons for decision as to the conviction and penalty of Mr Callaghan. No objection was taken to this and it was not objectionable especially as the transcript contained important admissions by Mr Jerrick. The Tribunal allowed Mr Jerrick personally to make further statements which were treated as evidence (see pp 5, 6 and 7 of the Tribunal transcript). The transcript indicates that during the hearing the Tribunal itself was actively considering all aspects of the case. In his decision Mr Thorley indicates where the materials before the Tribunal were more extensive than those before Mr Callaghan.

51 While the Tribunal paid close attention to the material before Mr Callaghan, his reasons and his decision, it did vary his decision on the period of disqualification.

52 The Tribunal reached its own independent decision on the merits. It was not in error in attaching weight to the principles it had adopted and applied on the question of penalty when a horse is presented for racing by a trainer otherwise than free of prohibited substances. Consistency is important.

53 In my opinion, the Tribunal exercised the jurisdiction conferred on it. This complaint should be overruled.

The Tribunal failed to consider a fine.

The Tribunal failed to make findings of fact and give adequate reasons for imposing a disqualification rather than a fine.

54 These complaints may be taken together. I have already partially dealt with them.

55 I do not agree that the Tribunal failed to make findings of fact. They lay in a short compass and were mainly taken from the materials before Mr Callaghan and are summarised on p 1 of the Tribunal’s decision. The Tribunal was conscious that it could impose a fine but considered that this was an inadequate penalty. The Tribunal agreed with Mr Callaghan that drug free racing was so important that it was beyond dispute that Mr Jerrick had to suffer a disqualification. The Tribunal did not expressly give reasons for imposing a disqualification rather than a fine. However, they can be inferred from the following:

(a) The Tribunal affirmed Mr Callaghan’s decision and that involved the importance of drug free racing with the horse trainer having the responsibility to ensure that the horse is drug free when presented for racing and that after therapeutic treatment sufficient time is allowed to lapse before the horse is so presented. A fine was inadequate in the circumstances.

(b) the previous decisions of the Tribunal consistently imposed periods of disqualification when horses were presented for racing other than free of prohibited substances

(c) despite the veterinary advice received the horse had been presented for racing other than free of prohibited substances – sufficient time had not been allowed for the drug to dissipate. This was possibly due to the administration of two doses fairly close together and intramuscularly.

56 Both the Tribunal and Mr Callaghan emphasised that each case depends on its own unique individual circumstances. They appear to have been adequately considered. This was not a case in which elaborate reasons were required. Sufficient reasons appear.

57 These complaints have not been made good and should be overruled.

Finding that heptaminol was cumulative when there was no evidence to support the finding.

58 Mr Jerrick submitted that making a finding for which there is no evidence is a jurisdictional error and relied on Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 and The Queen v Australian Stevedoring Industry Board, Exp Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100. In the joint judgment of Dixon CJ, Williams, Webb and Fullagar JJ it is stated at 120:

“The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the Tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact.”

59 It is well established that the question whether there is any evidence of a particular fact is a question of law: Jordan CJ in McPhee v S Bennett Ltd 1934 52 WN (NSW) 8 at 9 and Azzopardi v Tasman UEB.

60 As mentioned the Tribunal was doing no more than suggesting a possible explanation for the slow rate of dissipation of the drug. It did not make a positive finding. The words “might” and “could” in the last sentence on p 1 of the decision should not be deprived of effect.

61 In my opinion this complaint should be overruled.

The Tribunal erred in law by construing r 190 of the Australian Harness Racing Rules as an offence not requiring a mental element.

62 Counsel for Mr Jerrick undertook a detailed review of the decisions in Proudman v Dayman (1941) 67 CLR 536 at 540, Cameron v Holt (1980) 142 CLR 342 and He Kaw Teh (1985) 157 CLR 523. Those cases all dealt with criminal offences. In Cameron v Holt at 346 Barwick CJ held that here was a strong presumption “that in creating a criminal offence the legislature intends a guilty intent appropriate to the nature of the offence be an ingredient of the offence”.

63 In Sherras v De Rutzen [1895] 1 QB 918, an oft quoted authority, Wright J held that the presumption of mens rea or a knowledge of the wrongfulness of the act is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals.

64 Mr Jerrick contended that Mr Callaghan had erroneously proceeded on the basis that the offence was one of absolute liability and that the Tribunal did not consider whether this was correct. Mr Jerrick did not challenge this finding before the Tribunal. It was only asked to deal with the question of penalty. Mr Jerrick adhered to his plea of guilty before the Tribunal.

65 In dealing with the question of penalty it is often necessary to consider the elements of the offence and the basis of the plea or adverse finding of the Tribunal or court. Although not analogous and merely as an example, a court when sentencing for manslaughter endeavours to ascertain the basis of the plea or verdict as the case may be.

66 However, it would not be correct to allow this point to be taken at this stage for the first time. The Tribunal was never asked to deal with it and did not do so. It was acting on a plea of guilty and concentrating on the question of penalty in circumstances where the relevant facts were not in issue.

67 In case I am wrong in the approach taken in the previous paragraph I will summarise the argument that was advanced:

(a) In reliance upon the judgment of Gibbs CJ in He Kaw Teh at 533 even if, on the true construction of the statute mens rea (or knowledge) was not an ingredient of the offence it did not follow that the offence was necessarily one of absolute liability. The middle course is to hold that an accused will not be guilty if he acted under an honest and reasonable mistake as to the existence of facts which, if true, would have made his act innocent

(b) In the present case Mr Jerrrick acted under the honest and reasonable mistake that the advice he had received as to a withholding period of 72 hours was correct and he allowed a longer period before he presented the horse for racing

(c) Rule 190 creates a regulatory offence but it still carries the presumption that a mental element is implied in the offence

(d) The words in r 190(4) “regardless of the circumstances” do not necessarily mean regardless of the intent; “circumstances” refers to the background against which the offence was committed.

(e) The Tribunal made a jurisdictional error in failing to construe r 190 in conformity with the principles laid down in He Kaw Teh

(f) The Tribunal should presume that r 190 imports a mental element. Even if, on the true construction of r 190, it does not, the Tribunal should construe the section as one of strict liability.

68 This argument should not be accepted. There is considerable difficulty in importing criminal law concepts into the law relating to civil offences. While intention is an element of some torts and some defences it is not of universal relevance in dealing with civil matters.

69 Further, the words of r 190(4) that “an offence … is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse” suggest that the offence is one of absolute liability. A trainer is required to present a horse for a race free of prohibited substances. The object is to procure horse racing in which the horses are free from prohibited substances. The health of the harness racing industry and the financing of that industry through public support depends on this goal being achieved,

70 There is no sufficient reason to hold that there has been either a denial of procedural fairness or jurisdictional error Nor is there any sufficient reason for thinking that the Tribunal’s decision was reached unfairly.

71 Mr Jerrick did not press the ground of appeal that it was ultra vires for the Authority to make r 190 a rule of absolute liability.

72 I make the following orders:

(1) Dismiss the application (or summons) of Mr Jerrick herein

(2) Order Mr Jerrick to pay the costs of the Authority and those of the Tribunal as a submitting defendant of these proceedings

(3) Discharge the order of this Court of 17 May 2007 staying the disqualification of Mr Jerrick pursuant to the determination of the Tribunal of 7 February 2007 until further order as from 14 days from the date of delivery of these reasons.

73 The purpose of Order 3 is to give Mr Jerrick an opportunity to consider his position and take any action he may wish.