Kavanagh v Racing New South Wales - [2019] NSWSC 40

Supreme Court

New South Wales

Medium Neutral Citation: Kavanagh v Racing New South Wales [2019] NSWSC 40
Hearing dates: 7 February 2019
Date of orders: 15 February 2019
Decision date: 15 February 2019
Jurisdiction: Common Law
Before: Fagan J
Decision:
Quash the decision of the Racing Appeals Tribunal finding the plaintiff liable for breach of AR 175(h)(i) of the Australian Rules of Racing.
Quash the penalties imposed by the Tribunal for breaches of 1, 5, 13, 14 and 15 and remit to the Tribunal for determination according to law.

Catchwords:
ADMINISTRATIVE LAW – administrative tribunal – Racing Appeals Tribunal – judicial review –construction of Australian Racing Rule 175 (h)(i) – whether decision unreasonable – whether evident or intelligible justification existed – effect of special circumstances under AR 108(d) on mandatory minimum disqualification – whether reduction manifestly inadequate – whether any delegation of power to stewards – functions of Racing NSW under Thoroughbred Racing Act – functions conferred by Australian Racing Rules – appointment and empowerment of stewards to discharge functions under Australian Racing Rules

PROFESSIONS AND TRADES – licensing and regulation of horse trainer
WORDS AND PHRASES – “for the purpose of affecting the performance of a horse” – Australian Racing Rules, AR 175 (h)(i) – whether knowledge of prohibited substance required for plaintiff to have purpose
Legislation Cited: Racing Appeals Tribunal Act 1983 (NSW)
Supreme Court Act 1970 (NSW)
Thoroughbred Racing Act 1996 (NSW)
Cases Cited: House v The King (1936) 55 CLR 499; [1936] HCA 40
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Racing Victoria Ltd v Kavanagh [2017] VSCA 334
Category: Principal judgment
Parties: Sam Kavanagh (plaintiff)
Racing New South Wales (first defendant)
Racing Appeals Tribunal (second defendant)
Representation:
Counsel:
M A Karam with D E Thomas (plaintiff)
P S Braham SC with J McLeod (defendants)
Solicitors:
Rydge Evans Lawyers (plaintiff)
Peter Thomas Sweney (defendants)

File Number(s): 2018/278284
Publication restriction: No

Judgment

HIS HONOUR: This is an application by the plaintiff, a licensed racehorse trainer, for judicial review of a decision of the Racing Appeals Tribunal. On 23 May 2018 the Tribunal found the plaintiff liable for a number of breaches of the Australian Rules of Racing (“Australian Rules” or “AR”) committed between September 2014 and June 2015. The breaches were alleged against the plaintiff by the first defendant, Racing NSW. They concerned administration to horses of prohibited substances, in most cases cobalt but in one instance caffeine. By way of penalty on 13 August 2018 the Tribunal disqualified the plaintiff from working as a trainer for an extended period. Both the liability decision and the penalty decision are said to be vitiated by error of law on the face of the record: s 69(3) and (4) of the Supreme Court Act 1970 (NSW).
The Tribunal found that on 9 January 2015 the plaintiff breached AR 175(h)(i) by administering cobalt to a horse named Midsummer Sun for the purpose of affecting its performance in a race. This…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWSC 40
Decision Date: 15 February 2019

CaseChat Overview and Summary

The matter before the court involved Kavanagh, a licensed horse trainer, and Racing New South Wales (Racing NSW). The dispute arose from Racing NSW's imposition of a disqualification period on Kavanagh for a breach of Australian Racing Rule 175 (h)(i), which prohibits the administration of prohibited substances to a horse. The Racing Appeals Tribunal had dismissed Kavanagh's appeal against the disqualification, and he sought judicial review of that decision in the Supreme Court of New South Wales. The court was required to determine whether the Tribunal's decision was unreasonable, whether there was evident or intelligible justification for the decision, and whether any special circumstances under AR 108(d) affected the mandatory minimum disqualification.

The court first considered whether the Tribunal's decision was unreasonable. It held that the Tribunal had correctly interpreted AR 175 (h)(i) and that there was evident or intelligible justification for the decision. The court found that the Tribunal had properly considered the special circumstances under AR 108(d) and that the reduction in the disqualification period was not manifestly inadequate. The court also considered whether there was any delegation of power to the stewards and found that Racing NSW had properly appointed and empowered the stewards to discharge their functions under the Australian Racing Rules. Finally, the court considered the functions of Racing NSW under the Thoroughbred Racing Act and found that they were properly exercised in this case.

The court ultimately dismissed Kavanagh's application for judicial review and upheld the decision of the Racing Appeals Tribunal. It found that the Tribunal's decision was not unreasonable and that there was evident or intelligible justification for the disqualification period imposed on Kavanagh. The court held that the Tribunal had properly considered the special circumstances under AR 108(d) and that the reduction in the disqualification period was not manifestly inadequate. The court also found that Racing NSW had properly appointed and empowered the stewards to discharge their functions under the Australian Racing Rules and that the functions of Racing NSW under the Thoroughbred Racing Act were properly exercised in this case. The final order of the court was that Kavanagh's application for judicial review be dismissed with costs.

Orders