Justice v Racing Appeals Tribunal & Anor No. Scgrg-98-609 Judgment No. S8
[1999] SASC 8
•14 January 1999
JUSTICE v THE RACING APPEALS TRIBUNAL AND THE SOUTH AUSTRALIAN HARNESS RACING AUTHORITY
[1999] SASC 8
Civil
DEBELLE J. This is an application for judicial review seeking an order in the nature of certiorari and other orders to quash a decision of the Racing Appeals Tribunal (“the Tribunal”) disqualifying the plaintiff from holding a trainer’s licence for a period of six months.
A Trainer is Disqualified
The plaintiff, Mr Lance Justice, is a horse trainer in South Australia. He trains horses for trotting and pacing. One of the horses is registered to train is called “Vivacious Vicki”. She was due to race at Globe Derby Park on Monday 27th October 1997. Before the race a urine sample was taken from the horse. The horse competed in the race and ran second. On testing, the sample revealed the presence of the drug dexamethasone. The drug was in a low concentration of one to three nanograms per millilitre. A nanogram is 1,000 millionth of a gram.
Pursuant to the rules of the South Australian Harness Racing Authority (“the Authority”) an inquiry was conducted by stewards. After the inquiry, the plaintiff was charged with a breach of Rule 436a which requires, among other things, that a trainer shall present a horse for racing free of any drug. The plaintiff pleaded guilty. He proffered an explanation of accidental or inadvertent administration of the drug. The explanation was not accepted by the stewards who decided that the plaintiff had not provided proper security to prevent the use of the drug. The stewards did not find how the drug came to be administered. However, they did criticise the plaintiff’s security arrangement at his stables. It was implicit in the decision of the stewards that an unidentified person had gained access to the stables and had administered the drug to the horse. The stewards ordered the plaintiff be disqualified from holding a licence to train and drive horses for a period of six months.
The Trainer’s Appeal Fails
The plaintiff appealed to the Tribunal against the penalty ordered by the stewards alleging that it was manifestly excessive. The right of appeal is provided by s41G of the Racing Act, 1976. The appeal was heard by the Deputy President of the Tribunal and an assessor. The Tribunal dismissed the appeal.
An Application for Judicial Review
The plaintiff had no further avenue of appeal as any decision of the Tribunal on an appeal is final: see s41N of the Racing Act. The plaintiff has, therefore, brought this application for judicial review in respect of the Tribunal’s decision dismissing his appeal.
The plaintiff’s affidavit in support of this application did not comply with Rule 98.04 in that it did not state the grounds on which he relied to set aside the decision of the Tribunal. Pursuant to the order of Lander J made on 3 June 1998, the plaintiff filed a statement of particulars of his claim. The particulars assert that the Tribunal’s decision was “manifestly unreasonable and amenable to judicial review” on several grounds which may be summarised as breaches of the rules of natural justice, jurisdictional error, and the unreasonableness of the decision. I will later refer to the grounds in more detail.
Before examining the grounds in which the plaintiff relies, it will be helpful to note aspects of the evidence before the stewards, the decision of the stewards, the proceedings before the Tribunal and the decision of the Tribunal.
The Proceedings Before the Stewards
At all times, the plaintiff’s explanation for the presence of the drug was that there had been a negligent or inadvertent contamination of the horse. The plaintiff said that, at the relevant time, he was treating two horses using a nebuliser. A nebuliser is a small bowl into which a treatment is placed which is then attached to the bridle so that it is placed over the mouth and nostrils of the horse to enable the horse to inhale the treatment. It is not unusual for part of the treatment to be drunk by the horse. Vivacious Vicki was suffering from a low grade virus and cough. She was being treated with Hartman’s solution to assist her breathing and decrease coughing. A nebuliser was used to administer the solution. At the same time, another horse in the plaintiff’s stables was being treated with Atrevin and Dexaphos 5 which contains dexamethasone. That drug was also being administered by a nebuliser. It was the plaintiff’s case that the nebuliser was used to treat Vivacious Vicki after the other horse had been treated and that a portion either of the liquid or hydrated salts of Dexaphos 5 remained present in the nebuliser bowl because it had not been cleaned or adequately cleaned. The plaintiff also said that he and his mother worked on alternative Sundays and that his mother had treated Vivacious Vicki on the Sunday before the race at about 24 hours before the race. She had not checked to see if the nebuliser was clean because she was unaware that the other horse was using it.
There was other evidence before the stewards given by Dr Harbison, a veterinary surgeon, who acted as an adviser to the authority. The evidence related to experiments which had been conducted on two horses for the purpose of determining the time over which long traces of dexamethasone would remain detectable in urine. The experiments had been conducted after the plaintiff had proffered his explanation of negligent cross-contamination. The evidence was that a dose containing the same mixture of Atrevin and Dexaphos as had been administered by the plaintiff to his horse had been administered by a nebuliser to two horses. Urine samples were obtained from those two horses at intervals on one hour, six, 12, 24, 36 and 48 hours. These horses would have ingested more dexamethasone than would remain in traces in the nebuliser administered to Vivacious Vicki. The results, in the case of both horses, were that dexamethasone was detected at relatively high levels one and one-quarter hours after administration; and that dexamethasone was present in relatively low levels seven and 12 hours after administration; and that dexamethasone was not present in samples taken 24 hours, 36 and 48 hours after it had been administered. This evidence was clearly most unfavourable for the plaintiff. It repudiated his explanation. There was also evidence that dexamethasone would improve the lung capacity of a horse suffering from a virus and cough.
As part of their inquiry, the stewards had inspected the plaintiff’s premises and stables. They saw, and the evidence confirmed, that drugs for treating horses were kept in a wooden cabinet which was located in a multi-use facility shed. The cabinet in which the drugs were stored was not locked and was secured only by a bent nail. There was evidence that access to the cabinet was readily available during the day. The premises in which the drug cabinet was located was, however, locked at night.
It is apparent from the reasons of the stewards that they rejected the plaintiff’s explanation of cross-contamination. The reasons of the stewards were delivered ex tempore and were not settled. That explains the occasional lapse from proper syntax which appears in the following extract from their reasons. The stewards said:
“It has been put forward that the only possible explanation for the finding of the drug prohibited substance in the urine sample taken from Vivacious Vicki was cross-contamination of a nebuliser used in the treatment of two horses on your property. One of those horses being Vivacious Vicki, the other horse being treated also by nebuliser was being treated with Dexaphos 5 and Vivacious Vicki being treated with Hartman’s solution. The hypothesis being that a portion either of the liquid or hydrated salts of Dexaphos 5 remained present in the nebuliser bowl following treatment of the other horse when the Hartman’s solution was then added to the nebuliser bowl without it first being cleaned hence the Hartman’s solution had been contaminated by the residue of Dexaphos 5. Vivacious Vicki receiving this nebuliser treatment 24 hours prior to pre-race sampling. Detailed experimental testing was carried out on two horses. This treatment was by nebuliser using the full treatment dose of three mls of Dexaphos 5 and two mls of Atravin, not any smaller dosage of residue from a previous treatment. At 24 hours dexamethasone was not detected in the urine samples from both test horses. Given these results the panel are of the opinion that on balance the explanation offered of accidental contamination giving rise to the finding of dexamethasone in the urine sample taken from Vivacious Vicki is not accepted. In consideration of the measures taken by yourself particularly in the security of drugs etc, given that on the inspection of your premises, it was highlighted that drugs were kept in a wooden unlocked cabinet, in an open multi use facility shed accessible by any party, the responsibility for the treatment of horses was in some cases not carried out solely by yourself but by staff. The panel are of the opinion that Mr Justice you have failed to take and provide the standard of security that your position requires.”
The decision of the stewards was plainly grounded on the fact that the plaintiff had failed to provide a sufficient standard of security to prevent the administration of the drug. The stewards did not decide how or by whom the drug had been administered. It is implicit in the decision that the drug had been administered less than 24 hours before the race.
The Proceedings in the Tribunal
The plaintiff appealed to the Tribunal against the penalty alleging that it was manifestly excessive. The notice of appeal has not been proved in these proceedings. However, it is apparent from the submissions made to the Tribunal by Ms Nelson QC, who appeared for the plaintiff, that the plaintiff continued to press his claim that the presence of the drug resulted from negligent cross-contamination. It was common ground before the Tribunal that the plaintiff had not deliberately administered the drug. All the evidence, Ms Nelson QC submitted, pointed to the fact that the plaintiff acted in a way inconsistent with the deliberate administration by him of the drug. In the course of her submissions Ms Nelson QC referred to the plaintiff’s arrangements for the security of his premises. I will refer to those submissions in more detail when dealing with the alleged failure to comply with the rules of natural justice. Ms Nelson concluded her submissions to the Tribunal with references to penalties ordered in other cases, submitting that a fine was the appropriate penalty.
The question of the plaintiff’s security arrangements was also mentioned by Mr Mills in his address to the Tribunal. He drew attention to the plaintiff’s own evidence that the premises were accessible during the day and to the fact that the plaintiff knew that he would not be present at the premises for at least 48 hours prior to the race. He submitted that the plaintiff had seriously failed to discharge his onerous obligation to ensure that the horse was not drugged. He submitted that there was no reason to interfere with the penalty.
At the conclusion of Mr Mills’ submissions the Deputy President of the Tribunal asked if Ms Nelson sought to leave further evidence as to the plaintiff’s security arrangements. I will refer to the comments by Ms Nelson when dealing with her submissions on the issue of the breach of the rules of natural justice. In the result, Ms Nelson decided not to press her application to call evidence. Ms Nelson then made some submissions in reply.
The Tribunal’s Decision
The Tribunal considered its decision. On 28th April 1998, it published its reasons. After reviewing the evidence the Tribunal said:
“This Tribunal is yet again in a situation where it does not know how this drug reached the horse’s system. Rejection of one suggested explanation does not provide affirmative evidence to the contrary that there was a deliberate administration by the Appellant or someone with his authority. Be that as it may it is patently clear that the Appellant was grossly negligent in his conduct and lack of direction, supervision, and control in his stables and at the track. He failed to properly inform his mother as [to] the nebuliser being used for other medications on other horses, failed to ensure proper procedures were in place; he did not instruct his mother to check the cleanliness of the nebuliser, medications were kept in a cabinet secured by a bent nail in a multi use facility shed accessible to others; his property was fairly accessible to members of the public. Trainers whether they are part timers with one or two horses in work or professionals with 40 or so horses in their stable must be well aware of their responsibilities in having full and meticulous control over their stable with a view to ensuring drug free racing.
Each case must be assessed on its own particular merits. This Appellant has one prior conviction relating to the drug dexamethasone for which he received a conviction without penalty because of the peculiar circumstances in that matter. At the initial inquiry very lengthy submissions were made for the Appellant as to his circumstances and background. The Appellant is one of South Australia’s leading trainers; he has recently separated from his wife; he employs a number of staff; since the offence the number of horses in his stables has dropped from 40 to 25. The Appellant’s right to work is of fundamental importance. Acting upon the most favourable interpretation of the facts for the trainer namely that he had no part in or knowledge of administration of the drug his appalling carelessness and gross negligence remains. Counsel referred to numerous authorities many of which related to offences occurring during the period 1988 to 1994. The Tribunal notes that the Stewards have previously indicated that they published a notice in Botra magazine advising the industry of a general increase in penalties. That was published some time ago and has already been referred to in some recent decisions of this Tribunal (see RAT Darren Roads 24/96). Disqualification is a very serious penalty. This Appellant is not the first employer facing disqualification. This case is not at the bottom of the scale. There has been a blatant disregard by the Appellant of his responsibilities and obligations.”
The Tribunal dismissed the appeal.
A Breach of Natural Justice?
The first ground on which the plaintiff challenged the decision were two alleged breaches of the rules of natural justice. In Kioa v West (1985) 159 CLR 550 at 585 Mason J expressed the view that it is preferable to refer to the rules of natural justice as the rules of procedural fairness. I adopt that terminology. Given that the Tribunal’s decision affected the plaintiff’s capacity to earn his livelihood, the Tribunal was plainly under an obligation to observe the rules of procedural fairness: Kioa v West (supra) at 582. The issue in this case was whether the Tribunal had failed to do so.
The plaintiff alleged that the Tribunal had breached the rules of procedural fairness in two respects. The plaintiff’s first complaint was that the Tribunal had ruled that it was unnecessary for the plaintiff to give evidence as to the security in his stable and had then ruled on an alleged lack of security as a basis for penalty. The second complaint was that the Tribunal had failed to raise with counsel any issue relating to security at the track, thus denying the plaintiff an opportunity to comment on an issue on which the Tribunal ultimately relied as part of its decision. For the reasons which follow, the plaintiff’s allegations were not established and I find that the Tribunal did not fail to observe the rules of procedural fairness.
In the course of her submissions to the Tribunal, Ms Nelson QC asserted that the stewards had accepted the plaintiff’s evidence that, at night, his premises were locked and secured and that he had cameras, alarm systems and dogs to provide security, and that the premises were secured when staff were not present. The Deputy President asked Ms Nelson to point to the evidence concerning alarm systems and cameras. Ms Nelson replied that she would look for the reference in the transcript and, if there was no evidence as to those facts, she would seek leave to call the plaintiff. A little further on in her submissions, Ms Nelson read the plaintiff’s evidence concerning the extent of security arrangements. The Deputy President drew Ms Nelson’s attention to the fact that the plaintiff’s evidence did not go so far as to refer to security cameras and alarm systems. Ms Nelson replied that she would seek leave to call further evidence from the plaintiff as to security arrangements. She then added “The point I was making was that all the substances were under lock and key at night”. When asked whether that was one of the bases of her submissions on penalty, Ms Nelson replied, ‘Yes’”. Pausing here, the only point about the security arrangements which Ms Nelson wished to emphasise was that the cabinet was secure at night. The reference to alarm systems and cameras was a gloss upon that submission. As will be seen, it was common ground that the cabinet was in a room which was locked at night.
A short time later, the question of calling the plaintiff to give further evidence was again raised and debated by Ms Nelson and Mr Mills. In the result, the Deputy President said that, given the respective submissions, she proposed to postpone a ruling on the application until the end of Ms Nelson’s submissions so that she then could determine how relevant the evidence on alarm systems and security cameras was.
In the course of his submissions, Mr Mills had emphasised the lack of proper security of the cabinet in which the drugs were stored, stressing that the cabinet was secured only by a bent nail during the day. He submitted that the evidence showed a gross departure by the plaintiff from his obligation to ensure that drugs are not incorrectly administered to a horse. Mr Mills’ submissions referred only to the lack of security in daylight hours. At the conclusion of his submissions, the Deputy President returned to the question whether Ms Nelson sought to call further evidence as to the plaintiff’s security arrangements. The following exchange occurred.
“PRESIDING MEMBER: The other was the matter that I raised with Miss Nelson only relating to the security on premises. Having heard all of your submissions now, Miss Nelson, and having heard Mr Mills’ submissions in response, we don’t find that the allegations about additional security are directly going to have any great bearing on the submissions as you’ve made them.
MISS NELSON: I would agree with that.
PRESIDING MEMBER: If it was going to be of great import then no doubt the stewards would want to call evidence in response, and I frankly don’t see that that is required.
MISS NELSON: I think that’s right, ma’am, and I think when I was previously making my submissions what I had overlooked, of course, was that the stewards have gone and interviewed Mr Justice at his stables, and inspected it, and it doesn’t form part of the transcript, but it’s an exhibit which the tribunal now has. They had actually seen what was there and I don’t think they suggested that that was an issue.
PRESIDING MEMBER: And I don’t think it has any bearing on the - - -
MISS NELSON: I don’t suggest that it was an issue. It’s a matter that was argued, I suppose, in the inquiry, but I don’t know that at the end of the day Mr Mills takes that point, and I’m not sure that it takes the tribunal anywhere. I understand the point he’s making, which is that the cupboard should have locked during the day as well as at night.
MR MILLS: As I understand it, the evidence is correct as it stands; that there are no security camera.
MISS NELSON: There are alarm monitors.
PRESIDING MEMBER: I don’t have any further questions.
Do you have any questions of Mr Mills? No, thank you.”
Nothing further was submitted on the issue of security arrangements. At no time during the hearing in the Tribunal was reference made to security arrangements at the race track.
The plaintiff points to the Tribunal’s reasons and to its conclusion that he had been “grossly negligent in his conduct and lack of direction, supervision and control in his stables and at the track” and asserts that the Tribunal has acted in breach of the rules of natural justice in the two respects already mentioned.
I deal with the first allegation. It is apparent from the manner in which the proceedings before the Tribunal were conducted that the only issue as to the security of the plaintiff’s premises upon which Ms Nelson sought to call evidence was the asserted existence of alarm systems and security cameras to provide protection at night. However, it was common ground that, at night, the premises were locked thus denying access to the cabinet. The ground on which Mr Mills, for the Authority, relied was that during the day access to the cabinet and the horses was readily available. Thus, the question of additional security measures such as alarm systems and security cameras at night was not an issue. It was for this reason that the Tribunal said that it did not need to hear any further evidence from the plaintiff. Further, there is nothing in the Tribunal’s decision which indicates that the question of security cameras and alarm systems was material to its decision. That is apparent from the particulars of the negligence of the plaintiff identified by the Tribunal:
“He failed to properly inform his mother as to the nebuliser being used for other medications on other horses, failed to ensure proper procedures were in place; he did not instruct his mother to check the cleanliness of the nebuliser, medications were kept in a cabinet secured by a bent nail in a multi use facility shed accessible to others; his property was fairly accessible to members of the public.”
The first alleged breach of the rules in procedural fairness, therefore, entirely misstates the position and is unfounded.
There are further reasons why this allegation must fail. Ms Nelson unequivocally assented to the Tribunal’s suggestion that it was unnecessary to lead evidence on the issue. As the transcript of her subsequent comments shows, this was a considered decision. She had heard Mr Mills’ submissions. She had recalled the fact that the stewards had inspected the plaintiff’s premises. She had concluded by acknowledging that the issue was whether the cupboard should have been locked at night, a point she had mentioned earlier. Furthermore, although at an early stage in her submissions Ms Nelson had applied to call further evidence, it is apparent from the transcript that submissions on the topic and any ruling would be postponed until the submissions of both parties had been concluded. Ms Nelson is an experienced senior counsel and her submissions to the Tribunal show that she had appeared on several occasions before it. Had she wished, she could have applied to call the evidence. She made a deliberate election not to do so. It is now too late to seek to reopen the evidence. There is no breach of the rules of procedural fairness when counsel deliberately elects not to call evidence.
Further, the plaintiff’s affidavit in support of this application deposes to the nature of the evidence he would have given, if called. That evidence is essentially concerned with security at night. It would not have altered in any material way what was already common ground, namely, that the cabinet was secure at night.
Ms Nelson submitted that the Deputy President had said to her that security was not a relevant issue. I do not agree. The Deputy President plainly stated that she was referring to “the allegations about additional security” which was a clear reference to Ms Nelson’s reference to alarm systems and security cameras. There can be no suggestion that Ms Nelson was overborne in any way. This complaint of the breach of the rules of the procedural fairness has all the hallmarks of an attempt to revisit an issue which has been abandoned before the Tribunal.
For all these reasons there is no substances in the first of the alleged breaches of the rules of procedural fairness.
The other alleged failure to comply with the rules of procedural fairness is that the Tribunal failed to raise with counsel for the plaintiff any issue relating to security at the track. There was evidence pointing to a lack of proper security by the plaintiff at the track on the day of the race meeting. When the request was made to take a sample of urine, the plaintiff did not know where the horse was. The Tribunal was entitled to have regard to all of the evidence before the stewards. It must be remembered that the Tribunal was performing an appellate function. The evidence taken by the stewards was before the Tribunal. Both the plaintiff and the Authority were aware of that evidence and could refer to it. There is no obligation on an appellate Tribunal to put to a party all of the matters on which it might ultimately rely where those matters are already disclosed in the evidence. Further, the duty of a decision-maker to disclose material which it will consider in the course of making its decision applies to material which the decision-maker receives from sources other than the person being heard or of which the person being heard was not aware: see generally the discussion in Aronson and Dyer, Judicial Review of Administrative Action at 531-538 and the cases there cited. In this case, the Tribunal was acting on evidence which had been introduced before the Tribunal and the plaintiff would have been aware of it. This allegation also fails.
Jurisdictional Error
The plaintiff alleged the Tribunal had been guilty of jurisdictional error in that it had identified a wrong issue, asked itself a wrong question, relied upon irrelevant material, made an erroneous finding and reached a mistaken conclusion. This compendious allegation is obviously grounded on the decision in Craig v South Australia (1995) 184 CLR 163 at 177 to 179 and in particular a passage at p179. The plaintiff provided particulars of five alleged jurisdictional errors.
The first allegation is that the Tribunal did something which it lacked authority to do in that it relied on the lack of security in the plaintiff’s stable. It was also alleged that it was an irrelevant matter to which the Tribunal should not have had regard. It is apparent from the reasons of the stewards, from the transcript before the Tribunal, and from the reasons of the Tribunal, that the security was an important, if not a central, issue. Both the stewards and the Tribunal were concerned that a lack of proper security had enabled the drug to be administered. The question of security of the premises and standards of control and supervision concerning the drug were very relevant issues. The Tribunal plainly had jurisdiction to consider those issues and in no sense were they irrelevant.
The second allegation is that the Tribunal was in error in finding that the plaintiff failed to instruct his mother to check the cleanliness of the nebuliser since there was no evidence to that effect. This is not a ground of jurisdictional error. Further, the allegation lacks substance as there was evidence given by the plaintiff and his mother from which the Tribunal could readily infer that the plaintiff had failed to instruct his mother as to the cleanliness of the nebuliser. The plaintiff had given evidence that he had not informed his mother that the nebuliser was being used on a horse being treated with dexamethasone.
The third allegation is that the Tribunal erred by finding that the plaintiff was guilty of lack of supervision and control of the track and the stewards had not relied on this ground. Again, this is not jurisdictional error. An error of fact made by a Tribunal acting within jurisdiction is not jurisdictional error. Furthermore, reference has already been made to the evidence on which the finding was based. The Tribunal was entitled to rely on matters additional to those to which the stewards had referred and which were justified by the evidence.
As Mason J, with whom Gibbs CJ and Dawson J agreed, pointed out in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40-41:
“The limited role of a court reviewing the exercise of administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in administrator. Its role is to set limits on the exercise of that discretion, and decision made within those boundaries cannot be impugned: Wednesbury Corporation [1948] 1 KB at 228.
It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR at 375; R v Anderson;ex parte Ipec Air Pty Ltd (1965) 113 CLR 177 at 205; Ellison v Southwark London Borough Council [1976] 1 NLR 499 at 507.
The Racing Act does not prescribe what the Tribunal should take into account. The Tribunal hears, among other things, appeals against penalties imposed by stewards for breaches of the rules of the Authority. A relevant factor when considering whether a penalty is manifestly excessive is whether the appellant had prior convictions. In no sense was the Tribunal guilty of any jurisdictional error on this ground.
The fourth allegation is that the Tribunal erred in failing to provide sufficient reasons as to the extent to which it took into account the previous conviction of the plaintiff for a like breach of the rules. The allegation is without substance and this is not jurisdictional error. In any event, the Tribunal was entitled to have regard to the plaintiff’s prior conviction. The Tribunal has not made any jurisdictional error in failing to articulate the extent to which it has considered the effect of the first conviction when dismissing the appeal.
The final ground of which the plaintiff alleges jurisdictional error is that the Tribunal sentenced the plaintiff on the basis of an alleged general notice by the stewards to the industry of increase in penalty by the stewards. It is not entirely clear on what ground the jurisdictional error is alleged to exist. At best, it appears to be that the Tribunal took an irrelevant factor into account. But it cannot be said that the Tribunal should not have had regard to the need for a general increase in penalty. In this respect, I apply mutatis mutandis the reasoning expressed in respect of the third alleged ground of jurisdictional error which applied the observations of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (supra). A relevant factor when considering whether the penalty ordered by the stewards was manifestly excessive was whether the offence was prevalent and whether a need existed to increase penalties as a form of general deterrence. These are the kind of matters frequently considered when determining whether a penalty is excessive.
Ms Nelson also submitted that, by deciding to accept the stewards views, the Tribunal had fettered its discretion. In no respect did it do so. It is not at all unusual for courts and disciplinary tribunals to decide to increase penalties as a deterrent. Nevertheless, they continue to consider each case on its merits. There is no basis for suggesting that the Tribunal was not intending to adopt a like practice. The submission cannot be accepted.
Unreasonableness
Finally, Ms Nelson submitted that the Tribunal’s decision was so unreasonable that it should be set aside. The particulars show that the submission was grounded in part on the alleged denial of procedural fairness and alleged jurisdictional errors. Both of those submissions have failed. In addition, the submission was grounded on the allegation that the Tribunal had regard to irrelevant matters but Ms Nelson did not identify any irrelevant matter other than those already mentioned. The allegation of unreasonableness was also grounded on the failure of the Tribunal to hear the plaintiff as a first offender and his failure to take into account his good character and extensive good record. Those are not grounds which justify the submission. Further, it is quite apparent from the extract from the Tribunal’s decision quoted above that it had regard to the plaintiff’s personal circumstances and background.
Next, Ms Nelson submitted the decision was unreasonable because the Tribunal failed to follow earlier decisions on penalties and ignored a decision of the Supreme Court of Western Australia in Maynard v Racing Penalties Appeal Tribunal of Western Australia (1994) 11 WAR 1 that the right to work is fundamental. That is plainly wrong. The Tribunal expressly noted the importance of the right to work. Further, neither of these grounds provides cause to find the Tribunal’s decision was unreasonable unless the failure to do so caused it to reach the decision which was so unreasonable that no reasonable Tribunal would have made the decision: Wednesbury Corporation (supra). But that cannot be said in this case. The penalty was undoubtedly harsh. But the Tribunal gave his reasons for upholding the stewards’ decision. It cannot be overlooked that the Tribunal was an appellate tribunal. It was aware of the prevalence of the use of drugs. It was obviously prepared to fix penalties which would deter others and seek to ensure that proper care is taken to prevent drugs being administered by intruders. It had regard to all circumstances pertaining to the offence and the offender. It was aware of the harshness of an order of disqualification. It cannot be said that these reasons were wrong. Although harsh - and harsher than others might have ordered - the decision upholding the penalty is not so unreasonable than this Court can interfere.
Ms Nelson QC also called in aid the decision in Robbins v Harness Racing Board [1984] VR 641 and 647 where O’Bryan J observed that, “Error can be demonstrated if a Tribunal imposes a manifestly excessive penalty although the reason for the error is not apparent”. The observation was made in respect of an allegation that a penalty should be set aside as unreasonable. However, it is quite apparent that the remarks are obiter and the learned judge was not required to consider the issue of unreasonableness or whether the penalty was manifestly excessive. The decision is plainly distinguishable and I do not think it assists in this case.
The submissions made on behalf of the plaintiff on the issue of unreasonableness seemed to lose sight of the limited role that this court has in an application of this kind. At times, the submission appeared to be directed to the court as if it were simply hearing an appeal against the penalty. That is plainly not the role of the court.
For these reasons, the decision was not so unreasonable as to justify any interference by this court.
Conclusion
In summary, the plaintiff has failed to establish each of the grounds relied on. There is no basis for this court to interfere with the Tribunal’s decision. The plaintiff’s application will therefore be dismissed.
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