McCarthy v Harness Racing New South Wales

[2024] NSWSC 865

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

McCarthy v Harness Racing New South Wales [2024] NSWSC 865

Hearing dates:

14 September 2023 (Written submissions received on 28 September and 6 October 2023)

Date of orders:

17 July 2024

Decision date:

17 July 2024

Jurisdiction:

Common Law

Before:

Walton J

Decision:

The first defendant shall file and serve Short Minutes of Order reflecting this decision within 7 days of the publication thereof.

Catchwords:

ADMINISTRATIVE LAW – Summons seeking judicial review of decision made under the Australian Harness Racing Rules – Plaintiff presents a horse to race with a prohibited substance in its system – Plaintiff found guilty by stewards of Harness Racing New South Wales of breaching rule 190(1) – Plaintiff contends he was blameless – Whether decision is affected by jurisdictional error – Whether decision is affected by error on the face of the record – Whether Tribunal has erred in directing itself as to question of culpability and to standard of proof – Whether the Tribunal’s fact finding process was illogical, irrational or legally unreasonable – Whether Tribunal has impermissibly fettered the exercise of its discretion on penalty and erred in finding that no other penalty other than disqualification was available – Application of categories discussed in McDonough

Legislation Cited:

Australian Harness Racing Rules

Harness Racing Act 2009 (NSW)

Interpretation Act 1987 (NSW)

Racing Appeals Tribunal Act 1983 (NSW)

Racing Appeals Tribunal Regulation 2015 (NSW)

Supreme Court Act 1970 (NSW)

Cases Cited:

AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122

ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34

Attwood v The Queen (1960) 102 CLR 353; [1960] HCA 15

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33

Australian Rail Tram and Bus Industry Union v Aurizon Operations Ltd [2023] NSWSC 484

Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] HCA 26

Azzi v State of New South Wales [2023] NSWSC 1028

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25

Bayley v Nixon [2015] VSC 744

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47

Costello v Racing Appeals Tribunal [2019] NSWSC 1808

CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338

DAO16 v Minister for Immigration & Border Protection (2018) 258 FCR 175; [2018] FCAFC 2

Day v Harness Racing New South Wales (2014) 88 NSWLR 594

Day v Harness Racing New South Wales (2015) 90 NSWLR 764

Day v Sanders; Day v Harness Racing New South Wales (2015) 90 NSWLR 764; [2015] NSWCA 324

DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91

Director General of Department of Community Services; Re Sophie [2008] NSWCA 250

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1

Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; [2008] HCA 13

Elnduct Systems Pty Ltd v 3D Safety Services Pty Ltd (2015) 90 NSWLR 451; [2015] NSWCA 284

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Golden v V’landys (2016) 339 ALR 610; [2016] NSWCA 300

Green v Daniels (1977) 13 ALR 1; [1977] HCA 18

Greyhound Welfare and Integrity Commission v Bell [2023] NSWSC 1150

IAG Ltd v Sleiman (2017) 82 MVR 1; [2017] NSWSC 1346

Ings v Racing New South Wales [2022] NSWSC 1127

James McDonald v Racing New South Wales [2017] NSWSC 1511

Kalifaif Pty Ltd v Digi-Tech (Australia Ltd) (2002) 55 NSWLR 737

Kavanagh v Racing NSW [2019] NSWSC 40

Kirk v Industrial Court of NSW (2010) 239 CLR 531; [2010] HCA 1

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Matthews v Racing New South Wales [2022] NSWSC 182

McCarthy v NSW Racing Appeals Tribunal [2014] NSWSC 798

McDonough ([2008] VRAT 6, unrep)

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Minister for Immigration and Citizenship vSZMDS (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration, Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27; [2004] FCAFC 263

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66

The New South Wales Bar Association v Evatt (1968) 117 CLR 177; [1968] HCA 20

Norman Loy v Racing New South Wales (NSW RAT, 21 March 2022)

NSW Authority v Graeme Rogerson (Racing Appeals Reports, August 2007, Issue 48)

NSW Thoroughbred Racing Board v Waterhouse & Anor (2003) 56 NSWLR 691; [2003] NSWCA 55

Palmer v Dolman [2005] NSWCA 361

Plaintiff S183/2021 v Minister for Home Affairs (2022) 399 ALR 644; [2022] HCA 15

Quinn v Commonwealth Director of Public Prosecution (2021) 106 NSWLR 154; [2021] NSWCA 294

Racing New South Wales v Fletcher [2020] NSWCA 9

Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 1 WLR 948

Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555

Russo v Harness Racing NSW (NSW RAT, 23 August 2023)

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71

Schmael v Leach [2020] VSC 562

State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257

The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281

Turner v Harness Racing NSW (NSW RAT, 25 November 2020)

Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14

Wood v Secretary of the Department of Transport on behalf of the Government of New South Wales [2021] NSWSC 1248

Texts Cited:

Mark Aronson, Matthew Groves, Greg Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, 2022, Lawbook Co Thomson Reuters)

Category:

Principal judgment

Parties:

John McCarthy (Plaintiff)
Harness Racing New South Wales (First Defendant)
Racing Appeals Tribunal of New South Wales (Second Defendant)

Representation:

Counsel:
VM Heath (Plaintiff)
O Jones (First Defendant)
Submitting appearance (Second Defendant)

Solicitors:
HNT Legal (Plaintiff)
Cadre Moss (First Defendant)
Crown Solicitor for NSW (Second Defendant)

File Number(s):

2023/00278795

Publication restriction:

Nil

JUDGMENT

1. The plaintiff, John McCarthy has been a licensed standardbred driver, trainer, and studmaster in Australia since 1975. Before the incident from which these proceedings are born, he had never been disqualified or had a positive swab for any prohibited substance. The plaintiff estimated that he has had some 15,000 starters during his career.

2. The plaintiff, in the position of trainer, presented a horse, ‘Under Worked (NZ)’ (“the horse”), to race at Menangle on 16 October 2018 (“the race”).

3. The plaintiff became the trainer of the horse in about May 2018. ^[1] The horse had been admitted to an equine clinic on 27 April 2018 suffering severe diarrhoea. The treatment lasted five days. There was controversy as to the state of wellness of the horse thereafter and, in particular, in the few days leading up to the race. The plaintiff gave the horse 3 doses of Hemoplex on 3 consecutive days between 11 and 13 October 2018 (there was 2 clear days until the race). ^[2]

   1. The horse had been previously rained by another trainer, Mr Judd. It appears the plaintiff commenced training the horse in early May 2018.

   2. This time was apparently within the required withholding time between a treatment and presentation to a race.

4. A race day biological sample (a urine swab) was taken by stewards, tested, and subsequently found to contain cobalt above the threshold level of 100 micrograms per litre in urine. The readings found in laboratories were 250 and 230 micrograms.

5. Cobalt is a naturally occurring trace metal that is essential for the horse to metabolise vitamin B12 and is expected to be present in the horse and in natural foodstuffs, commercial feeds and some therapeutic preparations. However, racing authorities have in recent years recognised an issue with excessive cobalt supplementation and, accordingly, a threshold for cobalt detection in equine plasma or urine was imposed under r 188A(2)(k) of the Australian Harness Racing Rules (“AHRR”), namely, cobalt presence in excess of either 100 micrograms per litre in urine or 25 micrograms per litre in plasma is a prohibited substance.

6. The Rules of Racing made or adopted by the first defendant, Harness Racing New South Wales, pursuant to s 22 of the Harness Racing Act 2009 (NSW) (“HR Act”) are relevantly contained in the AHRR published by the national body Harness Racing Australia Inc together with Local Rules for New South Wales (these rules shall be referred to as the “Local Rules”).

7. AHRR r 256(1) prescribes the consequences of being found “guilty” of “an offence” under the rules as enlivening a discretion to impose one or more of the “penalties” provided by AHRR r 256(2), unless a specific penalty is prescribed by any rule (AHRR r 256(3)) or unless the discretion under AHRR r 256(6) is exercised that “[a]lthough an offence is found proven a conviction need not necessarily be entered or a penalty imposed”.

8. The stewards of the first defendant, Harness Racing New South Wales, convened an inquiry after the race and, on 3 May 2019, charged the plaintiff with breach of AHRR r 190(1) for presenting a horse for a race not free of a prohibited substance. ^[3]

   3. The plaintiff was suspended in February 2019 but was successful in having the suspension removed after an appeal to the first defendant.

9. The stewards particularised that breach as:

“…that you Mr John McCarthy, being the licensed trainer of the horse Under Worked (NZ), did present that horse to race at Tabcorp Park, Menangle on Tuesday, 16 October 2018, with a prohibited substance in its system, namely cobalt above the threshold of 100 micrograms per litre in urine, as reported by two laboratories approved by Harness Racing NSW.” ^[4]

4. The inquiry commenced on 3 May 2019.

10. The plaintiff immediately pleaded guilty and maintained that plea throughout that inquiry and subsequent proceedings. The plaintiff did not challenge that the laboratories found readings (cobalt readings in excess of the threshold) in the horse’s system. Two laboratories stated there was evidence of cobalt at or above the threshold level (recorded as 250 and 300 micrograms per litre) in urine taken from a urine swab of the horse (“the laboratory results”). A plasma sample was taken at a later race on 5 November 2018, which was below the threshold (4 micrograms per litre) with a threshold of 25 but much higher than expected by that time.

11. The plaintiff gave evidence before the stewards and called expert veterinary evidence of Dr Major (he wrote two reports dated 30 January and 3 September 2019).

12. Countervailing evidence was given by Dr Wainscott on 3 May and 12 September 2019.

13. On 4 December 2019, the stewards entered a conviction and ordered that the plaintiff be a disqualified person for 12 months.

14. On the same day, the plaintiff appealed to the Racing Appeals Tribunal of New South Wales (“the Tribunal”), the second defendant, on the ground of severity. On 30 August 2023, Tribunal upheld the appeal and substituted an order that the plaintiff be a disqualified person for 9 months (“the decision”). The plaintiff had submitted that the matter should be dealt with by exercise of one of the options available to the Tribunal under the AHRR other than disqualification, including caution or reprimand.

The Tribunal

15. The Tribunal is constituted under s 5 of the Racing Appeals Tribunal Act 1983 (NSW) (“RATA”). Pursuant to s 16A of the RATA, an appeal to the Tribunal 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 the appeal. The plaintiff is not required to demonstrate error by the stewards: Costello v Racing Appeals Tribunal [2019] NSWSC 1808 at [9], [32], [49]; McCarthy v NSW Racing Appeals Tribunal [2014] NSWSC 798 (“McCarthy No 1”) at [12]; cf Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124 at [2]; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [20]; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [11]–[15]; Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297G–298A.

16. The finding of the Tribunal is adjudicative not inquisitorial: McCarthy No 1at [20] and [63].

17. The Tribunal is not a Court. Pursuant to reg 16 of the Racing Appeals Tribunal Regulation 2015 (NSW) (“RATR”), the Tribunal, when hearing an appeal, is not bound by the rules of, or practice as to evidence, but may inform itself of any matter in such a manner as it thinks fit. The Tribunal is not bound to evidence before the stewards and under s 17A of the RATA may dismiss the appeal, vary the decision or substitute any decision that could have been made by the stewards or such other orders as the Tribunal thinks fit.

These Proceedings

18. This matter came before this Court in the duty list on 1 September 2023. The plaintiff moved on a Notice of Motion (“the Motion”) filed that day which sought an interlocutory injunction under s 66(4) of the Supreme Court Act 1970 (NSW) restraining the first defendant from acting on or otherwise carrying into effect the decision.

19. The Court granted an interlocutory injunction restraining the first defendant from acting on or otherwise carrying into effect the decision until further order and made the proceeding returnable before the Court at 2pm on Monday, 4 September 2023.

20. Ultimately, an injunction was granted upon the basis that the matter would proceed to a hearing of an application for judicial review. The interlocutory injunction continues following that hearing to the date of this judgment.

21. In the final hearing, Ms VM Heath appeared for the plaintiff (although written submissions were filed by Mr D Dalton SC and Ms VM Heath). The first defendant was represented by Mr O Jones. The Tribunal entered a submitting appearance.

22. By an Amended Summons filed on 7 September 2023, the plaintiff sought judicial review of the decision. The plaintiff sought the following orders to quash or set aside the decision of the Tribunal (putting aside the application for an interlocutory injunction):

“(1) An order under s 69 of the Supreme Court Act 1970 in the nature of certiorari, quashing or setting aside the decision of Racing Appeals Tribunal of 30 August 2023.

(2) An injunction under s 66(1) of the Supreme Court Act 1970 restraining Racing New South Wales from acting on or otherwise carrying into effect the decision of the Racing Appeals Tribunal’s decision of 30 August 2023 until determination of these proceedings.

….

(4) A declaration that the decision of the Racing Appeals Tribunal’s decision of 30 August 2023 is invalid.

(5) Alternatively, an order that the matter be remitted to the Racing Appeals Tribunal differently constituted for redetermination according to law.

(6) An order that the first defendant pay the plaintiff’s costs of the proceedings.

(7) Other or further orders.”

23. The grounds upon which the plaintiff sought relief from the decision under the Amended Summons were as follows:

1. The Tribunal has erred misdirecting itself as to the question of culpability it was required to address and as to the standard of proof of disputed facts and, by inference from the result, must have applied a wrong test with respect to the application of a witness’s credibility to the factual determination. This error is a jurisdictional error and is also error on the face of the record. (“Ground 1”).

2. Further, and in the alternative, the Tribunal’s conclusion is illogical, so illogical as to be irrational, given the Tribunal’s findings as to the evidence of the two experts and upon the findings of fact made by the Tribunal in relation to the plaintiff’s good character and honesty and the facts the Tribunal found to be established on the plaintiff’s case at [218], [219], [220], [221], [223], [225], [226], [228], [229], [230], [315] and rejecting alternative possible sources for the positive swab at [222], [315] and its finding that specific deterrence was not required [274]–[276]. This error is a jurisdictional error and is also error on the face of the record. (“Ground 2”).

3. The Tribunal has impermissibly fettered the exercise of its discretion on penalty and erred in finding that precedent and the Harness New South Wales Penalty Guidelines (2016) (“the penalty guidelines”) operated to require it to determine that no penalty other than disqualification was available despite its finding that specific deterrence was not required [274]–[276] and as such has not effectively exercised its jurisdiction and not provided the plaintiff with procedural fairness. This error is a jurisdictional error and is also error on the face of the record. (“Ground 3”).

24. In written and oral submissions, the plaintiff essentially divided the Ground 1 into three separate but related areas. These will be described in more detail later but for present purposes they consisted of contentions that:

1. The Tribunal considered the wrong question of culpability. While the plaintiff submitted he was blameless or of low culpability, and the first defendant submitted that the plaintiff could not prove he was blameless (or had taken every reasonable step to prevent a breach of the rule), the Tribunal was wrong to view its task as to determine culpability as a binary or as a dichotomy between blamelessness and unqualified culpability meriting disqualification. The plaintiff also raised other issues as to culpability discussed below.

2. The Tribunal applied a wrong onus and an erroneous gloss to the applicable standard of proof, stating that "under the Briginshaw principles" the Tribunal must find a comfortable level of satisfaction which it applied to the issue stated at [213] of the decision.

3. By inference from the result, the Tribunal must have applied a wrong test with respect to the application of a witness’s credibility, or failed to apply a correct test, with respect to the application of the plaintiff’s credibility to the factual determination.

25. An additional complication in considering the plaintiff’s grounds of appeal arose as a consequence of written submissions filed by the plaintiff as part of a supplementary note pursuant to leave granted by the Court on 14 September 2023 at the close of the hearing of the matter. The leave given by the Court was to address the applicable test for judicial review on the basis of legal unreasonableness, irrationality, or illogicality in a decision-maker’s fact finding process. Outside the scope of that leave, the plaintiff filed on 28 September 2023 submissions going to the merits of the current claim.

26. That is not a matter of great moment, as the first defendant appeared able, albeit with complaint, to grapple with the further written submissions. However, one product of those written submissions was that the plaintiff interweaved submissions as to legal unreasonableness, illogicality or irrationality, after the close of oral argument, into not only Ground 2 which expressly dealt with that topic but also Grounds 1 and 3. For example, it was contended that the contentions advanced in support of Ground 1 also sustained a case for legal unreasonableness or at least a species of legal unreasonableness, namely, “cases in which the reasoning process has gone badly wrong”. In this category it was said “the error is either apparent from the reasons or the reasons fail to explain something that is otherwise inexplicable in context: this may include material inconsistency between primary findings or between primary findings and inferences or conclusions or other unexplained or illogical leaps”.

25. I will address the way the plaintiff developed these submissions further below but note at this juncture that I will ultimately find that it is unnecessary to grapple with the entirety of the arguments of the parties as to the applicable test for judicial review on the basis of legal unreasonableness, irrationality or illogicality in the decision-makers fact finding process because of my conclusion that the Tribunal’s decision did not involve illogicality or irrationality and its findings cannot be described, when properly understood, as legal unreasonableness either on its face or, as the plaintiff sought to advance, in their submissions.

26. This judgment concerns the plaintiff’s application for judicial review, save for the application for interlocutory relief.

The HR Act

29. Pursuant to s 22 of the HR Act, the first defendant is empowered to make rules not inconsistent with that Act for or with respect to the control and regulation of harness racing. ^[5]

    5. Discussed in Day v Harness Racing New South Wales (2014) 88 NSWLR 594 (“Day (No 1)”) at [62]-[64] (Leeming JA with whom McColl and Macfarlan agreed) ]; Day v Sanders; Day v Harness Racing New South Wales [2015] NSWCA 324; (2015) 90 NSWLR 764 (“Day (No 2)”) at [21] (Basten JA with whom Leeming and Simpson JA agreed).

30. As mentioned earlier, the AHRR are rules made by the national body, Harness Racing Australia Inc, and adopted by the first defendant as published from time to time, pursuant to s 23(2) of the HR Act. ^[6] As observed by Basten JA in Day v Sanders;Day v Harness Racing New South Wales [2015] NSWCA 324; (2015) 90 NSWLR 764 (“Day (No 2)”) at [23] the AHRR:

“are extremely detailed and bear every indication (both by way of language and structure) of having been drafted by persons familiar with statutory drafting techniques.”

6. Day (No 1) at [14]; Day (No 2) at [22].

31. Section 10(2)(i) of the HR Act empowers the first defendant to impose on a person registered by it or the owner of a harness racing horse a penalty for contravention of the rules.

32. The AHRR and Local Rules have statutory consequences, and statutory limitations, under ss 10(2)(i), 21, 22 and 23 of the HR Act:Racing New South Wales v Fletcher [2020] NSWCA 9 at [39]–[43]; Golden v V’landys [2016] NSWCA 300; (2016) 339 ALR 610 at [60]–[62]; NSW Thoroughbred Racing Board v Waterhouse& Anor (2003) 56 NSWLR 691 at [35].

33. Section 10(2) of the HR Act provides:

(2)  Without limiting subsection (1), HRNSW has power to do the following—

(a)  investigate and report on proposals for the construction of new racecourses, and inspect new racecourses or alterations or renovations to existing racecourses,

(b)  supervise the activities of harness racing clubs, persons registered by HRNSW and all other persons engaged in or associated with harness racing,

which  inquire into and deal with any matter relating to harness 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 harness racing horse on any course or courses, whether or not a report concerning the matter has been made or decision arrived at by any stewards,

(d)  direct and supervise the dissolution of a harness racing club that ceases to be registered by HRNSW,

(e)  appoint an administrator to conduct the affairs of a harness racing club,

(f)  disqualify a harness racing horse from participating in a race,

(g)  exclude from participating in a race a harness racing horse not registered under the rules,

(h)  prohibit a person from attending or taking part in a harness racing meeting,

(i)  impose a penalty on a person registered by it or on an owner of a harness racing horse for a contravention of the rules,

(j)  consult, join, affiliate and maintain liaison with other associations or bodies, whether in the State or elsewhere, concerned with harness racing,

(k)  enter into contracts,

(l)  acquire, hold, take or lease and dispose of real and personal property whether in its own right or as trustee,

(m)  borrow money,

(n)  order an audit of the books and accounts of a harness racing club by an auditor who is a registered company auditor nominated by HRNSW,

(o)  scrutinise the constitutions of harness racing clubs to ensure they conform to any applicable Act and the rules and that they clearly and concisely express the needs and desires of the clubs concerned and of harness racing generally,

(p)  publish material, including periodical publications, to inform the public about matters relating to harness racing, whether in the State or elsewhere,

(q)  undertake research and investigation into all aspects of the breeding of harness racing horses and of harness racing generally,

(r)  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.

34. Section 21 and 22 of the HR Act provide as follows:

21 Disciplinary and work health and safety action may be taken by HRNSW

(1)  HRNSW may, in accordance with the rules, do any of the following—

(a)  cancel the registration under this Act of—

(i)  any harness racing club, or

(ii)  any harness racing horse, or

(iii)  any owner, trainer or driver of harness racing horses, or bookmaker or other person associated with harness racing,

(b)  disqualify, either permanently or temporarily, any owner, trainer or driver of harness racing horses, or bookmaker or other person associated with harness racing,

(c)  prohibit any person from participating in or associating with harness racing in any specified capacity,

(d)  prohibit any horse from competing in any harness race,

(e)  prohibit any person from attending or taking part in a harness racing meeting,

(f)  impose fines, not exceeding 200 penalty units, on any harness racing club or on any owner, trainer or driver of harness racing horses, or bookmaker or other person associated with harness racing for breaches of the rules,

(g)  suspend, for such term as HRNSW thinks fit, any right or privilege conferred by this Act or the rules on any owner, trainer or driver of harness racing horses, or bookmaker or other person associated with harness racing,

(h)  prohibit any person registered under the rules from taking part in any harness racing meeting held by any harness racing club that is not registered under the rules.

(2)  Any fine imposed under subsection (1)(f) is to be paid to and be the property of HRNSW.

(3)  HRNSW may only take action under this section for disciplinary purposes or for the purposes of work health and safety.

22   Rules in relation to harness racing

(1)  HRNSW may make rules, not inconsistent with this Act or the regulations, for or with respect to the control and regulation of harness racing.

(2)  Without limiting the generality of subsection (1), HRNSW may make rules for or with respect to the following—

(a)  any matter that by this Act is required or permitted to be prescribed by the rules,

(b)  any of the matters referred to in Division 1,

(c) the effect of a disqualification of, or other penalty imposed on, a person or harness racing horse under section 21(1),

(d)  the allocation to harness racing clubs of dates on which they may conduct harness racing meetings and harness races,

(e)  the holding and conduct of harness racing meetings and of races at any such meeting,

(f)  the keeping of horses that are in the care or custody of persons registered under the rules,

(g)  the breeding of harness racing horses,

(h)  the naming and identification of harness racing horses,

(i)  the appointment of stewards by HRNSW and the functions of those stewards (including functions that do not relate to harness racing meetings),

(j)  conferring on stewards appointed by HRNSW the same functions as are exercisable by HRNSW under Division 1,

(k)  the extent to which and the circumstances in which stewards appointed by HRNSW may exercise their functions to the exclusion of stewards of harness racing clubs,

(l)  the fees and charges referred to in section 38.

35. Section 21(3) provides that the first defendant may only take action under s 21(1) “for disciplinary purposes or the purposes of work health and safety”.

36. In Day (No 1) at [70], Leeming J stated (with whom McColl and Macfarlan JA agreed):

““disciplinary purposes” within the meaning of s 21(3), in a context which includes … picks up the protective disciplinary purposes familiar in the regulation of professional associations. For example, the power of this court to discipline a barrister is “entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved”: TheNew South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183–184.”

AHRR

37. The submissions of the plaintiff adequately describe the applicable rules for this matter and are adopted for the purposes of this judgment.

38. The AHRR is set out in 24 parts covering various topics for the organisation and control of harness racing including the appointment, powers and functions of stewards (AHRR Pt 2), licences (AHRR Pt 4) and inquiries and investigations (AHRR Pt 11).

39. The language of the rules describes the breach of a rule by a person to whom they apply as an “offence”. As observed in note (2) to the AHRR Dictionary:

“Offence provisions are found throughout the rules and are not confined to those in Part 14 or under the bold type heading “Offences”. An offence provision is identified by use of the words in it, or with reference to it, that failure to comply or contravention of it makes a person guilty of an offence.”

(AHRR r 312(2) provides that notes in the Dictionary are explanatory and do not form part of the rules.)

40. As the note indicates, Pt 14 of the AHRR sets out “general offences”, being various rules regulating conduct at or about harness races or relating to the harness racing industry. AHRR r 255 provides:

A person who fails to comply with any provision of a rule contained in Pt 14 is guilty of an offence.

41. AHRR r 239A provides:

A person whose conduct or negligence has led or could lead to a breach of the rules is guilty of an offence.

(The plaintiff was not charged with a breach of this rule.)

42. As noted above, the “offence” provisions are not limited to P 14 of the AHRR, and “offence” provisions occur throughout the rules. The “offence” provisions relevant to this case are in Pt 12, headed “Prohibited Substances” (the relevant rules are addressed specifically below).

43. Part 15 of the AHRR deals with penalties. AHRR r 256(1) prescribes the consequences of being found “guilty” of “an offence” under the rules as enlivening a discretion to impose one or more of the “penalties” provided by AHRR r 256(2), unless a specific penalty is prescribed by any rule (r 256(3)) or unless the discretion under AHRR r 256(6) is exercised not to impose a penalty or not to even enter a conviction.

44. AHRR r 256 provides as follows:

(1) One or more of the penalties set out in sub rule (2) may be imposed on a person, club or body guilty of an offence under these rules.

(2)

(a) A fine within the limits fixed by legislation or by the Controlling Body,

(b) conditional or unconditional suspension for a period;

(c) disqualification, either for a period or permanently;

(d) warning off, either for a period or permanently;

(e) exclusion from a racecourse, either for a period o permanently;

(f) a bar, either for a period or permanently, from training o driving a horse on a racecourse, track or training ground;

(g) conditional or unconditional suspension of registration for a period or cancellation of registration;

(h) conditional or unconditional suspension of a licence for period or cancellation of a licence;

(i) a severe reprimand;

(j) a reprimand or caution.

(3) Should a rule of its own terms impose a penalty in respect of an offence created by that rule then, subject to any contrary intention expressed or otherwise apparent in that rule, that penalty is the only one which can be imposed in respect of that offence.

(4) Penalties, whether under this or any other rule, attach from the time they are imposed, except that the Controlling Body or the Stewards may postpone such attachment.

(5)

(a) Penalties other than a period of disqualification or a warning off under this or any other rule may be suspended for a period not exceeding two years upon such terms and conditions as the Controlling Body or Stewards see fit;

(b) If the offender does not breach any term or condition imposed during the period of suspension, the penalty shall be waived;

(c) If the offender breaches any term or condition imposed during the period of suspension then, unless the Controlling Body or Stewards otherwise order, the suspended penalty thereupon comes into force and penalties may also be imposed in respect of any offence constituted by the breach.

(6) Although an offence is found proven a conviction need not necessarily be entered or a penalty imposed.

(7) Before an offence is found proven, the following conditions shall be satisfied:-

(a) the offender shall be afforded reasonable opportunity to cross examine witnesses, make submissions, present evidence to the Controlling Body or the Stewards as the case may be;

(b) those submissions or evidence shall be taken into account;

(c) evidence relied upon in establishing the offence shall be identified;

(d) in a matter before the Stewards, those Stewards who finally determine that an offence has been committed shall be present during the whole of the proceedings.

45. AHRR r 309 provides:

In the interpretation of a rule a construction that would promote the purpose or object underlying it, whether expressly stated or not or which would facilitate or extend its application, is to be preferred to a construction that would not promote that purpose or object or which would impede or restrict its application.

46. It has been observed this rule generally reflects s 33 of the Interpretation Act 1987 (NSW) and like provisions in other jurisdictions (Day (No 2) at [32] (Basten JA)).

47. I accept the submissions of the plaintiff as to the broad objectives of the AHRR are as follows:

“The AHRR do not contain any statement of objects or general purposes. However, the unifying theme of the rules is that harness racing shall be controlled and shall be subject to measures to preserve the integrity of the sport and to see that races are run under conditions that are known and knowable to the public, that horses compete on their merits and otherwise for the welfare of horses and health and safety of participants (eg see AHRR rules 4 & 5 (inspection and measurement of track); rule 15(1)(a) (powers of stewards at a meeting or race) and et seq; rule 26 (racecourse security); rule 44 (tactics); rule 45 (inspection and identification of horse); rule 63 (review of horse for inconsistent performance); rule 66 (racing conduct and unfair advantage); rule 88 (withdrawal from a race); rule 89 (requirement to report knowledge of anything which may have affected a horse’s performance in a race), rule 106 (limitation on advertising of horse’s performance), rules 147 & 148 (horse to be raced on merits)) (cf Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross; Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Thelander (2012) 248 CLR 378 at [23] –[26]).”

48. This limitation on the exercise of the power of disqualification and like measures is consonant with the first defendant’s statutory obligation to licence only persons who are fit and proper “having regard to the need to protect the public interest as it relates to the harness racing industry” (s 11, HR Act).

49. I also accept the plaintiff’s submissions as to the effect of disqualification:

“32. A disqualified person cannot hold a licence under the rules and cannot race, lease, train, drive or nominate a horse for a harness race; cannot conduct breeding activities of standardbred horses; cannot permit anyone to use his own registered premises for any activity associated with the harness racing industry; cannot enter any premises used for the purposes of the harness racing industry (such as the registered premises of other harness racing participants); cannot enter a racecourse or any place under the control of a harness racing club or the first defendant; cannot participate in any manner in the harness racing industry; cannot be an office holder, official, member or employee of a harness racing club; cannot be a member or employee of the first defendant; cannot place or have placed on their behalf a bet on any Australian harness race and cannot associate with persons connected with the harness racing industry for purposes related to that industry (AHRR rule 259). That is, disqualification is more than revocation of a licence to practice but is exclusion from the industry in every way, including social exclusion.

…

38. AHRR rule 91(4) also has the apparent effect that a disqualified person may not even prepare, educate or exercise on private property an unnamed horse (that is, a horse that is not yet registered for racing) that is owned by the person, at least if that horse had originally been bred for “purposes connected with the harness racing industry” (per AHRR dictionary definition of “horse” cf AHRR rule 96 as to naming and registration). ^[7] ”

7. Rules 230 and 259 were amended in 2020.

50. Part 12 of the AHRR deals with prohibited substances.

51. AHRR r 188 empowers the first defendant to proscribe substances as prohibited under the rules (whether in a horse or otherwise).

52. AHRR r 188A defines prohibited substances. As explained in Day (No 1) (at [45]–[47]):

“AHRR 188A(1) identifies three categories of prohibited substances. The first category is defined by reference to a direct or indirect action and/or effect within one or more of 10 named mammalian body systems. If it be read literally, a substance capable of causing an action or effect on the nervous system, or the digestive system, or the blood system, falls within this category. The second category is substances “falling within, but not limited to, the following categories” and thereafter around 60 categories of substances are identified, at a level of chemical or biochemical detail, including “acidifying agents”, “adrenergic blocking agents”, “adrenergic stimulants”, “agents affecting calcium and bone metabolism”, “alcohols”, “alkalinising agents” and “anabolic agents”. The third category is metabolites, artifacts and isomers of the first and second categories. AHRR 188A(2) exempts certain classes of substances from the prohibition in rule 188A(1) when they are present “at or below the levels set out” in the rule. Thus, for example, “[a]rsenic at a level of 0.30 micrograms per millilitre in urine” and “[f]ree hydrocortisone at a concentration of 1.00 micrograms per millilitre in urine” are exempted. Rule 188A(3) identifies a list of 11 substances which are not prohibited substances (irrespective of the concentration in which they are present). Some are particular chemicals (including ranitidine, omeprazole and ambroxol). Others are classes of substances, including “registered vaccines against infectious agents” and “antimicrobials (antibiotics) and other anti-infective agents but not including procaine penicillin.””

53. AHRR r 188A is in the following terms:

(1) The following are prohibited substances:

(a)      Substances capable at any time of causing either directly or indirectly an action or effect, or both an action and effect, within one or more of the following mammalian body systems:-

the nervous system

the cardiovascular system

the respiratory system

the digestive system

the musculo-skeletal system

the endocrine system the urinary system

the reproductive system

the blood system the immune system

the integumentary system

the ocular system

(b)     Substances falling within, but not limited to, the following categories:-

acidifying agents

adrenergic blocking agents

adrenergic stimulants agents

affecting calcium and bone metabolism

alcohols

alkalinising agents

anabolic agents

anaesthetic agents analgesics

antiangina agents

antianxiety agents

antiarrhythmic agents

anticholinergic agents

anticoagulants

anticonvulsants

antidepressants

antiemetics

antifibrinolytic agents

antihistamines

antihypertensive agents

anti-inflammatory agents

antinauseants

antineoplastic agents

antipsychotic agents

antipyretics

antirheumatoid agents

antispasmodic agents

antithrombotic agents

antitussive agents

bisphosphonates

blood coagulants

bronchodilators

bronchospasm relaxants

buffering agents

central nervous system stimulants

cholinergic agents

corticosteroids

depressants

diuretics

erectile dysfunction agents

fibrinolytic agents

haematopoietic agents

haemostatic agents

hormones (including trophic hormones) and their synthetic counterparts

hypnotics

hypoglycaemic agents

hypolipidaemic agents

immunomodifiers

masking agents

muscle relaxants

narcotic analgesics

neuromuscular agents

plasma volume expanders

respiratory stimulants

sedatives

stimulants

sympathomimetic amines

tranquillisers

vasodilators

vasopressor agents

vitamins administered by injection

(c)  Metabolites, artifacts and isomers of the prohibited substances prescribed by sub-rules (1) (a) and (1) (b).

(d)  An endogenous substance where the concentration of that substance is in the opinion of the Stewards unusual or abnormal.

(2)  The following substances when present at or below the levels set out are excepted from the provisions of subrule (1) and Rule 190AA: 

(a)  Alkalinising Agents, when evidenced by total carbon dioxide (TCO₂) present at a concentration of 36.0 millimoles per litre in plasma.

(b)  Arsenic at a level of 0.30 micrograms per millilitre in urine.

(c)  Dimethyl Sulphoxide at a concentration of 15.0 micrograms per millilitre in urine or 1000 nanograms permillilitre in plasma.  

(d)  In male horses other than geldings, free and glucuroconjugated 5α-estrane-3β, 17α-diol at a mass concentration of 45 micrograms per litre in urine when, at the screening stage, the free and glucuroconjugated 5α-estrane-3β, 17α-diol exceeds the free and glucuroconjugated 5,10 estrene-3β,17α-diol in the urine.

(e)  Salicylic acid at a concentration of 750 micrograms per millilitre in urine or 6.50 micrograms per millilitre in plasma.

(f)  Free hydrocortisone at a concentration of 1.00 micrograms per millilitre in urine.

(g)  Testosterone -      

(i)  in geldings: free testosterone and testosterone liberated from its conjugates at a mass concentration of 20 micrograms per litre in urine,

(ii)  in geldings, fillies and mares: free testosterone at a mass concentration of 100 picograms per millilitre in plasma,

(iii)  in fillies and mares:  free testosterone and testosterone liberated from its conjugates at a mass concentration of 55 micrograms per litre in urine,

(iv)  in fillies and mares that have been notified as pregnant so as to comply with Rule 103B:  free testosterone and testosterone liberated from its conjugates at any concentration in urine or free testosterone at any concentration in plasma.

(h)  3-Methoxytyramine (including both free 3-methoxytyramine and 3-methoxytyramine liberated from its conjugates) at a concentration of 4.0 milligrams per litre in urine.  

(i)  Boldenone in male horses other than geldings, (including both free boldenone and boldenone liberated from its conjugates) at a mass concentration of 15 micrograms per litre in urine. 

(j)  Prednisolone (free Prednisolone) at a mass concentration of 10 micrograms per litre in urine

(k)  Cobalt at a concentration of 100 micrograms per litre in urine or 25 micrograms per litre in plasma.

(3)  The following are not prohibited substances:

- antimicrobials (antibiotics) and other antiinfective agents but not including procaine penicillin

-  antiparasitics approved and registered in Australia by the APVMA for use in horses

-  ranitidine

-  omeprazole

-  ambroxol

-  bromhexine

-  dembrexine

-  registered vaccines against infectious agents

-  orally administered glucosamine

-  orally administered chondroitin sulphate

-  altrenogest when administered to fillies and mares 

(4)  A trainer must notify the Stewards no later than 1 hour prior to the scheduled starting time of a race if the trainer’s horse has been treated with Antimicrobials (antibiotics and other anti infective agents) except Procaine Penicillin, Vaccines and antisera for the prevention of disease, or Mucolytics within the preceding 7 days. 

(5)  A trainer who fails to comply with sub-rule (4) is guilty of an offence.

(Emphasis added.)

54. AHRR r 189 empowers harness racing stewards to conduct tests of horses for prohibited substances.

55. AHRR r 190 creates an “offence” under the rules for a trainer to present a horse for a race otherwise than free of a prohibited substance (“presentation offence”). This was the offence charged in this case. Rule 190 relevantly provides:

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

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

(3) If a person is left in charge of a horse and the horse is presented for a race otherwise than in accordance with sub rule (1), the trainer of the horse and the person left in charge is each guilty of an offence.

(4) An offence under sub-rule (2) or sub-rule (3) is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse.

56. AHRR r 190 creates an absolute liability offence. No defence of honest and reasonable mistake of fact is available: Day (No 2) at [75] (Basten JA). In proving a breach of the rule, it does not matter how the substance came to be in the horse or the circumstances in which the breach occurred: Day (No 2) at [75] (Basten JA) (see also AHRR r 190(4)). AHRR r 190 imposes on a trainer an “absolute responsibility” ^[8] .

    8. Basten AJ having at [64] eschewed “a devotion to labels” such as “absolute liability”.

57. Liability may be established by application of the evidentiary certificates rule AHRR r 191 which relevantly provides:

191. (1) A certificate from a person or drug testing laboratory approved by the Controlling Body which certifies the presence of a prohibited substance in or on a horse at, or approximately at, a particular time, or in blood, urine, saliva, or other matter or sample or specimen tested, or that a prohibited substance had at some time been administered to a horse is prima facie evidence of the matters certified.

(2) If another person or drug testing laboratory approved by the controlling body analyses a portion of the sample or specimen referred to in sub-rule (1) and certifies the presence of a prohibited substance in the sample or specimen that certification together with the certification referred to in sub-rule (1) is conclusive evidence of the presence of a prohibited substance.

(3) A certificate furnished under this rule which relates to blood, urine, saliva, or other matter or sample or specimen taken from a horse at a meeting shall be prima facie evidence if sub-rule (1) only applies, and conclusive evidence if both sub-rules (1) and (2) apply, that the horse was presented for a race not free of prohibited substances.

58. This means, for example, that for offences which involve detection of a substance that is only prohibited above a quantitative threshold, the certified laboratory detection of an amount of the substance above the threshold will be conclusive evidence of a breach, even if the substance entered the horse only gradually in amounts under the threshold and accumulated in the horse due to the horse’s own idiosyncratic biological processes.

59. AHRR r 190B requires a trainer to keep and produce to the stewards on request a logbook of all treatments and substances administered to a horse and all therapeutic substances in his or her possession. No charge was laid under this rule in the present case.

60. AHRR r 196A makes it an offence for a person to administer to a horse any prohibited substance for the purpose of affecting the performance of a horse in a race (among other prohibited purposes). No charge was laid under this rule.

Judicial Review

61. The parties advanced submissions as judicial review in the present context which, in my view, were sound.

62. An application for judicial review is not an occasion for a merits review of the administrative decision below and is strictly limited to grounds that may support relief under s 69 the Supreme Court Act in the nature of prerogative relief, under s 66(1) of the Act in the nature of injunctive relief or under s 75 (or in the Court’s inherent jurisdiction), declarations of right.

63. The plaintiff is entitled to succeed whether he demonstrates 'error on the face of the record' or 'jurisdictional error'; there is no privative clause denying remedy for 'mere' error of law (as there was in Quinn v Commonwealth Director of Public Prosecution (2021) 106 NSWLR 154; [2021] NSWCA 294 (“Quinn”)) and any legal error of this Tribunal is jurisdictional in nature because, unlike the Court in Quinn, the RATA does not give the Tribunal authority to decide otherwise than in accordance with the law.

64. Further, the plaintiff placed reliance upon JamesMcDonald v Racing New South Wales [2017] NSWSC 1511. In that case, Rein J (at [77]) laid down principles regarding judicial review of the imposition of a penalty by a Tribunal exercising power in a comparable jurisdiction to the present as follows:

“7 There are some further matters that are agreed or not contested by the parties:

…(4) The assessment of a penalty under the Rules of Racing has discernible or apparent legal effect upon rights and is, therefore, amenable to an order of certiorari: see Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159 per Brennan CJ, Gaudron and Gummow JJ for the circumstances where certiorari is available.

…(6) That the ‘record’ is confined to documentation initiating the application, pleadings, the orders made, and the reasons of the inferior Court or Tribunal (see s 69(4) of the Supreme Court Act 1970 (NSW) and Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 at [89]), but does not include the evidentiary material placed before the Tribunal: see Craig v State of South Australia (1–95) 184 CLR 163 pp 180 - 181 (‘Craig’).

(7) That the ARR and LR are rules akin to a professional regulation regime and are not criminal in nature: see Day v Harness Racing New South Wales (2014) 88 NSWLR 594 (Day), [70] per Leeming JA, with whom McColl JA and Macfarlan JA concurred, dealing with similar rule making.”

65. No jurisdictional error or error of law occurs if the decision-maker makes a mere error of fact, without more, when considering the evidence in the course of deciding an issue arising in the matter. This is because decision-makers tasked with deciding a question on its merits are entitled to make errors of fact within jurisdiction. ^[9] The “merits” of an exercise of administrative power include the lawful exercise of the power, even if it involves “administrative injustice” or mere “error”: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 (“ABT17”) at [124] (Edelman J).

    9. NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27; [2004]

66. Three further matters, as to judicial review, should be mentioned at this juncture:

1. In determining whether the Tribunal has engaged in jurisdictional error or made an error of law, consideration should be given as to how the plaintiff advanced its case before the Tribunal. This consideration is important in this matter. Jurisdictional error or error of law cannot arise from a failure by a decision-maker to consider or address an argument that was never put to it: AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 at [12] (Basten JA); Azzi v State of New South Wales [2023] NSWSC 1028 at [51] (Adamson JA); Elnduct Systems Pty Ltd v 3D Safety Services Pty Ltd [2015] NSWCA 284; (2015) 90 NSWLR 451 at [114]. Gleeson CJ said in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (“S395”) at [l]:

" ... on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process".

2. The jurisdiction of the Tribunal, constituted (as in this case) by Mr D B Armati, was regularly invoked. Mr Armati is a former magistrate. As with any decision the subject of judicial review, the reasons of the Tribunal must be read as a whole and the Court should not be too concerned with "looseness of language" or "unhappy phrasing". Nor should the reasons of the Tribunal be "construed minutely and finely with an eye keenly attuned to the perceptions of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [272] (Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ).

3. In the case of determining penalties, as in sentencing, the function of forming an opinion as to the penalty that ought to be imposed requires the Tribunal to undertake the process of "instinctive synthesis" described by McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (“Markarian”) at [51]:

“... the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case.”

The Decision

67. The Tribunal commenced its decision by noting that it was considering a severity appeal only. It noted the grounds of appeal recorded the only ground being the penalty was excessive.

68. The Tribunal then identified the issues between the experts requiring consideration, each of which concerned explanations for the level of cobalt detected in the horse as follows:

“8. While they will be expanded upon later, those issues are:

1. Gastro

2. Dehydration

3. Hemoplex

4. Horse not processing cobalt through its system.”

69. At the same time the Tribunal identified issues which were not pressed in that respect as follows:

“9. It is helpful if the issues no longer pressed were also summarised and they were:

1. Feeding and supplement regime

2. Environment

3. Vitamin B12

4. False positive for B12

5. Urine concentration

6. Creatinine

7. Administration studies without known administration basis

8. Accumulation of cobalt in a horse

9. Manufacturer error in feed

10. Clumping in feed

11. Need for further urine samples from the McCarthy stables

12. Need for further blood samples from the McCarthy stables.”

70. Under the heading “Issues” the Tribunal discussed the issues presented to it by the parties as follows:

“14. The appellant has put his character in evidence, not only for the usual purposes of his subjectives and therefore possible discounts on any penalty, but also in respect of the issue of the actual breach and therefore whether he is to be believed on his evidence that goes to his conduct around the breach.

15. Essentially, the case for the appellant is that under the McDonough principles, he should be found to be blameless and therefore penalised under category 3. The respondent says that the appellant has not met the burden of proof that he carries and he should be dealt with under McDonough category 2.”

71. The Tribunal stated counsel for the plaintiff identified three options ^[10] which were before the stewards which reduced to two before the Tribunal (the third was no longer pressed). Those options were said to be encompassed by the list of issues set out above (presumably) a reference to the issues appearing in [68] of the judgment. Those options were as follows:

“17. Those options identified are:

1. The horse received cobalt from some other source in addition to what has been disclosed, being the feed regime and the treatments on the three consecutive days.

2. The horse received the three treatments as disclosed, the feed and the supplementation as disclosed, and the horse is not processing through its system pharmacologically or pharmacokinetically cobalt properly, and therefore it is not expelling cobalt as you would expect for horses in ordinary health or physiological action per medium of the studies.

3. The horse received the three treatments as described and the feed regime had cobalt concentrations in it which were far in excess of the manufacturer’s labelling and that has resulted in the high reading. This option was not pressed on appeal.”

10. They were described as ‘theories’ in the present proceedings.

72. I note that the plaintiff referred to various passages of the decision when the Tribunal made favourable findings concerning the plaintiff (which related to his case on credibility as set out in [14] and [15] of the decision extracted above). Those paragraphs of the decision will be extracted below because they also concern other aspects of the appeal. For present purposes I note the plaintiff relied upon passages [215]; [217]-[219]; [220]-[223]; [225]-[227] and [229]-[231] of the decision in that respect. ^[11]

    11. The Tribunal discussed the plaintiff’s character and subjective case at [19]–[39].

73. Before coming to those passages some other aspects of the decision should be mentioned.

74. At [40] and [42]-[61], the Tribunal made finding as to background facts as follows:

“40. This being a severity appeal, the appellant does not dispute that he was the trainer who presented the subject horse to race and that it had in it cobalt in excess of the threshold.

42. The precise date on which this appellant acquired the subject horse is not in evidence, but it is sometime after the horse had its first race on 11 November 2017 and after it was presented to the Agnes Banks Equine Clinic on 27 April 2018.

43. The clinic records are in evidence for that admission. They show the horse was admitted for scouring and underwent various treatments over five days. It was in intensive care.

44. Dr Lee from the clinic provided a report to the then trainer, Mr Jurd, on 2 May 2018 on discharge. In summary, reference was made to mild dehydration, which improved, but the diarrhoea continued. By 2 May, the horse was virtually clear of those symptoms.

45. There is no evidence of the horse suffering any health-related issues from its discharge on 2 May 2018 until it became unwell on just before 11 October 2018. The horse was then under the care of the appellant.

46. The appellant, relying upon his experience but not taking any veterinary advice, determined to treat the horse because “it was a bit crook and had a gastro thing for a few days”. The symptoms were described as loose manure and white gums. He formed the opinion the horse was dehydrated.

47. It is the appellant’s evidence that he injected Hemoplex, 10 mls, on 11 October, 10 mls on 12 October and 20 mls on 13 October.

48. The appellant’s log book is in evidence and the stewards’ inquiry was much engaged in trying to ascertain if that log book had been truthfully and accurately written up.

49. Those concerns arose because the marking for 11 October clearly shows it was originally written as 12 October; 12 October clearly written as 13 October; and 13 October clearly written as 15 October, with the word “SAT” written next to the date. The log book as seen by the stewards shows the dates being 11, 12 and 13. The Tribunal notes that the relevant Saturday was the 13th.

50. The Tribunal further notes that at the stable inspection on 21 December 2018, the stewards visited the appellant’s premises without having given prior notice of that visit. Immediately, the subject log book was called for and produced and the dates, as they are set out in the evidence, were written in the log book at that time.

51. On the face of those facts, there was no reason for the appellant to have improperly amended his records to exculpate himself from an administration closer to race day.

52. There was no evidence led, nor was it the part of the respondent’s case, that there might be an examination of the fact that as the horse won the subject race and was the subject of a urine sample, that the appellant would have been put on notice that if there was a positive, his log book would be called for and therefore he should ensure it was written up to exculpate him. That case was not advanced and is not further examined.

53. The Tribunal notes that at the stewards’ inquiry, the appellant simply did not know how the dates recorded in the log book came to be there. Regardless of the accuracy of the dates and when they were changed, the appellant was adamant that he would not have given it the Hemoplex the day before the race. The appellant acknowledged that there were no other parts of the log book in which he had incorrectly inputted dates and made amendments.

54. The issue of the accuracy of the log book is subject to the character test identified earlier.

55. After the last Hemoplex injection, the horse’s condition settled down and it was determined by the appellant it was well enough to be worked and to race.

56. The Tribunal notes that the appellant must have considered the horse well at presentation to race because he was aware of his duty to inform the stewards if there was any doubt about that fact when the horse was presented to race.

57. As a result of another presentation, the horse was subject to a blood sample on 5 November 2018. The horse produced a reading of 9 in plasma on 5 November 2018. The threshold is 25.

58. It is the appellant’s evidence that nothing else was given to the horse except the normal feed and the Hemoplex and no one else gave anything to the horse.

59. The appellant also stated that he ceased using Hemoplex after the stable inspection on 21 December 2018 when he found out about the positive for the first time.

60. The appellant also gave evidence to the stewards that the horse had won on 19 occasions since the positive presentation without having had Hemoplex and without having produced any positives.

61. The stewards questioned the appellant at length at the stable inspection and at the inquiry on the feed and supplements he gave the horse. Those do not need to be set out as nothing remarkable was found, there is an acceptance that there can be cobalt present in them and there is cumulation from their consumption, but nothing alone to cause an elevated reading.”

75. The Tribunal traversed the expert evidence of Dr Major of 31 January and 3 September 2019 (Dr Major was not called before the stewards) and Dr Wainscott of 3 and 17 September 2019 and by a report of 6 August 2021 as to outstanding issues at [62]–[118] of the decision.

76. Some of the Tribunal’s findings, in that respect, warrant specific mention:

“63. The Tribunal again notes that it is only analysing the evidence relevant to the outstanding issues and not to the numerous issues canvassed in the evidence and the reports.

…

67. Dr Major concluded that the most likely explanation for the reading was accumulated exposure to cobalt-containing substances in feed, vitamin and mineral supplements. That is, the course of Hemoplex injections was a major contributor. To this must be added the horse’s previous exposure and the continuing intake in feed and supplements.

…

69. Dr Wainscott gave non-controversial evidence about cobalt as a substance.

70. He noted a standard intake of cobalt from diet would be 5 to 10 milligrams per day. He noted that cobalt deficiencies have never been recorded in a horse.

71. He was questioned as to whether the injections would have assisted the illness. Dr Wainscott stated:

“ … I don’t think it would have made any difference, but I can certainly understand Mr McCarthy’s thought process and why he did it. It’s a – as we know, it’s a legitimate medication. It’s a – it’s at the high end of the dose, if you like, but it’s still well within what would be considered to be a reasonable treatment regime. I’ve got no concerns with his regime at all, no.”

…

74. He summarised the results of all of those trials as being that the cobalt levels go above the threshold of 100 but are all under that threshold in 12 hours or less. He conceded that the trials only had a total of 20 horses but that the results were consistent across the horses and the levels would only remain above the threshold for 12 hours.

75. Critically, Dr Wainscott conceded that none of those horses had been sick and none of them were in work.

76. Dr Wainscott then was asked about a horse that had been sick and he said:

“ … if you have got a sick horse and it’s perhaps got intestinal conditions, that the permeability of the gut, if you like, will alter and, yes, absorption can change, but – and it can go both ways. If you’ve got an inflamed gut, the water gets retained in the gut. It gets sort of pushed out from the body, if you like. The barrier, if you like, becomes much more permeable and that results in diarrhoea … I wouldn’t dispute that.”

…

80. Dr Wainscott maintained that the reason for the high reading was not that the horse was sick and treated with Hemoplex. He stated:

“It’s inconsistent with the results of all the administration trials.”

…

82. Dr Wainscott then opined that:

“A level over the threshold is either the result of either an administration of a registered therapeutic product on race day, or the administration of a high cobalt dose sometime before the race.”

…

87. Critically, Dr Wainscott stated that the treatment recorded in Mr McCarthy’s log book would not produce the result here and would be inconsistent with the results of the numerous administration studies that have been done.

88. Dr Wainscott conceded that his opinions were based solely upon the administration studies he had referred to.

…

95. Dr Wainscott was not able to explain the reading on 5 November 2018. Dr Wainscott was not able to concede the scenario or option advanced by the appellant that the horse was not processing cobalt properly. He said there were simply too many variables and while there was nothing to support it, there was nothing to contradict it, either.

Dr Major’s report of 3 September 2019

96. Dr Major remained of the opinion that Hemoplex was the overwhelming contributor to the level recorded, which was an outlier from the stable average, and that it flowed from the intense supplementation provided to the horse because of its previous severe illness.

…

100. Dr Major noted that the studies relied upon did not involve stressed, dehydrated or previously ill horses and the horses had no known exposure to cobalt through feeds or other supplements.

101. In relation to Dr Ho’s report, he said the horses were not in work and had no previous exposure to cobalt.

102. In relation to the remaining studies by SCEC, he noted the wide range of values. He also said that none of those studies replicated the regime embarked upon by the appellant here.

103. Therefore, he concluded that the results here were not contrary to the studies.

…

106. Dr Wainscott, having noted that the scouring problem was in April 2018 and agreeing that diarrhoea is a stress-related illness, noted the horse recovered fairly quickly.

107. He then again stated that he was unaware of any studies showing any illness that may cause a horse to retain cobalt.

108. Dr Wainscott was of the opinion that the diarrhoea three days before the subject race would not account for the urinary cobalt reading.

109. Dr Wainscott was of the opinion that there is no evidence the horse was in a water conservation mode that might have any effect upon the concentration of cobalt.

110. Dr Wainscott felt that Dr Major’s opinion that the diarrhoea would amplify the cobalt concentration was merely speculative.

111. Dr Wainscott opined that Dr Major’s opinion that the horse was gravely ill was overstating the situation.

112. Dr Wainscott repeated that the April 2018 admission would not have contributed to the high readings here.

113. Dr Wainscott was of the opinion that a dietary intake of 5 milligrams (corrected from 5 to 10 milligrams at the inquiry) was not such that it, being at the lower end of a normal range, would have contributed in any way.

114. Dr Wainscott was of the opinion there was no evidence of other sources of cobalt in the stable.

115. Dr Wainscott was of the opinion there was nothing remarkable about the feeding or supplement regime of the subject horse.

116. Critically, Dr Wainscott stated that the injection regime was not the overwhelming contributor to the positive because that was not consistent with every administration trial conducted using either this or very similar registered products at similar therapeutic levels.

117. Dr Wainscott then identified an unpublished study by Robinson (no date given) where a therapeutic product was used and the levels only remained slightly above the threshold for 24 hours. With a five-week course, they were still only marginally above the threshold 24 hours after the last administration. Therefore, Dr Wainscott was further of the opinion that Hemoplex had no significant effect on the recorded urinary cobalt concentration.”

77. There then followed a summary of the submissions of the parties before the Tribunal (at [119]–[212]) before what appeared under the heading ‘Discussion’. Those considerations may be distinguished from those given with respect to penalty which commenced under a heading dealing with that topic immediately after paragraph [264] of the decision.

78. The ‘Discussion’ section of the judgment commenced with a mention of Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (“Briginshaw”) and noted in that respect that the Tribunal must reach a comfortable level of satisfaction in its determination. The Tribunal then returned to the issues in the proceedings as follows:

“214. The issue whether the appellant can prove, with the onus upon him, to that standard that he should be assessed for penalty under the McDonough category 3 principles on the basis he was blameless or there was nothing else he could reasonably do, needs to be determined first.”

(Emphasis added.)

79. The Tribunal made a series of findings which concerned the character or credibility of the plaintiff:

“215. That determination is very much driven by the positive determination that is made on the character of the appellant. Character is raised on the basis of whether the Tribunal can make that favourable determination of blameless etc.

216. The respondent does not challenge the appellant’s character on subjective features but has essentially not addressed against such a finding on the blameless test.

217. The Tribunal has set out at length the character of the appellant and his subjective facts. It is not necessary to repeat them.

218. There is particular comfort found in a positive determination on this part of the character test on the basis that the appellant has had some 15,000 prior starters with no positives. No reason for him to breach the subject rule has been established and, to the contrary, he satisfies the Tribunal that he has no reason to have breached the rule on this occasion.

219. The Tribunal therefore accepts the appellant’s case that he, having no reason to breach the rule, is to be accepted where issues of fact are grey.

220. Despite the paucity of his recollection at the stewards’ inquiry on the entries in his log book, the Tribunal accepts that the log book entries are an accurate statement of the dates on which the three Hemoplex injections were given and their quantity.

221. The Tribunal is comforted in those conclusions and as to the explanation given by the appellant on those matters by reason of the fact that there appears to be no suspicious conduct in which he engaged. For example, there is no betting concern to the regulator and the subject drug is not an EPO, nor does it enhance performance, and nor are there any welfare issues.

222. Likewise, the Tribunal accepts the appellant’s evidence that he gave nothing else to the horse than that which he has told the stewards at the stable inspection and at the inquiry.

223. The Tribunal accepts that the Hemoplex was a legitimate and commonly used horse medication which was properly administered on each of the three occasions documented and appropriate withholding periods were adopted. The evidence establishes that the third injection was atypically high and the three injections themselves, as stated by Dr Major, were atypically intensive.

224. It is also accepted that the two subject readings were outliers.

225. It is also an agreed fact and accepted that cobalt can be cumulated in the body of the horse.

226. It is also accepted that the plasma reading on 9 November at 9.4 compared to a threshold of 25 does raise a clarion call, as was submitted at the stewards’ inquiry on behalf of the appellant.

227. It is also accepted that Dr Wainscott was not able to provide an explanation for that plasma reading as against the issues for determination on the presentation.

228. There is the fact that after Hemoplex was stopped that there were 19 races with no positive.”

(Emphasis added.)

80. The Tribunal then proceeded to examine the administration reports to which Dr Wainscott referred. The Tribunal referred to the nature of those studies and various arguments about the same as follows:

“229. The appellant also establishes that in respect of the five study reports to which Dr Wainscott took the Tribunal, there are certain issues identified which require consideration as to the reliability placed upon those study results by Dr Wainscott. It being noted that Dr Wainscott’s opinions as to the cause of the elevated reading was based upon his assessment of those five studies.

230. Dr Wainscott accepted that in each of the studies, healthy racehorses were used. He conceded that none of those horses in the five trials was in work, sick, not possibly dehydrated, and were ones for which there was no known exposure to cobalt prior to the testing.

231. It is noted also that Dr Major was of the opinion that the results here of the presentation and the plasma reading were not inconsistent with the studies.

232. The appellant therefore says that the diarrhoea issue in April 2018 and the diarrhoea issue which led to the administration of the Hemoplex before the race indicate that the horse was gravely ill and that fact, coupled with the general cumulation and coupled with the fact of the impact of the Hemoplex injections, provides the explanation for the positive reading. That is said to be based upon the fact that the horse was not processing the Hemoplex properly.

233. Reinforcement in that submission was based upon what was said to be an outlier reading on 5 November in plasma.

234. Therefore, it is said these are inexplicable readings with no reason for the appellant to do it and consistent with the horse having problems.

235. It is said that with the respondent not able to exclude the appellant’s theories, that he has established to a comfortable level of satisfaction that he was blameless.

236. On the respondent’s behalf, the Tribunal notes Dr Wainscott’s theory that the level above the threshold was the result of an administration of a registered therapeutic product on race day or the administration of a high cobalt dose sometime before the race.

237. The respondent says that the appellant has not established to the requisite standard that he was blameless.

238. Reliance is placed upon the five study reports which all indicate elimination times within 12 hours. Here, the gap was much greater.

239. It is noted Dr Wainscott said that the various challenges to those studies did not cause him to come to a different conclusion.

240. In particular, Dr Wainscott opined that the April illness was of no relevance, the diarrhoea prior to the race was not at a sufficient level to be of concern, and the Hemoplex as recorded would not have caused the elevated reading.

241. As to the plasma levels, it is noted Dr Wainscott was not concerned by those and had in fact seen higher ones and that that level was not inconsistent with the findings in Ho.

242. It is noted that Dr Wainscott was of the opinion that the appellant’s theory was speculative.

243. Dr Wainscott was reinforced in that conclusion as there was no evidence of other sources and in particular the feed and supplementary regimes were quite normal.”

81. The Tribunal’s conclusion in that respect were as follows:

“244. The Tribunal particularly finds that there is no health issue for the subject horse between its diarrhoea in April 2018 and its lesser diarrhoea in the few days before the presentation. That is, there is nothing to indicate that this horse had any inherent illness which may have been in some form ongoing to indicate that it was, therefore, generally unwell, or constantly unwell, or so unwell that an explanation immediately arises because of that alone or taken in conjunction with any of the other factors argued by the appellant.

245. That is reinforced by the fact that there is no veterinary advice or, indeed, evidence of the appellant as to any problems between April and October 2018 with the horse.

246. The Tribunal noting that the October 2018 illness was of such minor severity that the appellant did not seek veterinary advice in respect of it and relied upon his own experience in self-determining to administer the Hemoplex in the fashion that he did. It is accepted that Hemoplex may have caused the horse to recover, or, indeed, it may have recovered absent the Hemoplex, but it is not able to be determined which of those is the fact.

247. The Tribunal finds that the horse had returned to a normal state immediately after the conclusion of the Hemoplex injections and that the appellant was able to work the horse, formed the opinion that there was no condition required to be reported to the stewards and then presented the horse to race. The Tribunal is particularly persuaded that there is no evidence that after the race this horse had any symptoms that may have indicated it was in any way unwell.

248. Therefore, the Tribunal finds that the basis of the appellant’s theory on diarrhoea as being a contributor is very weak.

249. The Tribunal finds also that the administration studies have not been shown to be of no weight or little weight or otherwise able to be downgraded. 250. The Tribunal is reinforced in that conclusion in that there are no contrary studies, to the five in question, advanced by the appellant which would indicate that any of the various matters identified, taken individually or collectively, mean that the results of those studies should not be accepted. Therefore, when considered individually and collectively, the fact that the subject horses in the studies were not in work, were not sick, had an unknown level of dehydration and had no known exposure to cobalt, do not mean that those study results are not to be given weight.

251. The Tribunal therefore finds that each of those matters which are said to cause the studies to be read down are entirely speculative and of no weight. There is no particular established fact on those speculative theories upon which weight can be placed.

252. That is not to say that subsequent research may well establish that those matters do cause those studies to be reconsidered, but that is not the current state of the evidence available to the Tribunal.

253. Absent, therefore, any established cause which has not been overcome by the respondent, the Tribunal is left with the opinions formed by Dr Wainscott based upon those administration trials.

254. Those trials established that the Hemoplex administered to this horse must have been eliminated well prior to its presentation.

255. The Tribunal does not come to a contrary conclusion on the clarion call submission that the 9 November plasma reading should be given weight to support the theory that this horse was continually unwell such that there is an explanation for the presentation reading.

256. The Tribunal notes Dr Wainscott rejected that as being a reason even though he was not able to explain that reading.”

1. “The Tribunal finds that the horse had returned to a normal state immediately after the conclusion of the Hemoplex injections and that the appellant was able to work the horse, formed the opinion that there was no condition required to be reported to the stewards and then presented the horse to race. The Tribunal is particularly persuaded that there is no evidence that after the race this horse had any symptoms that may have indicated it was in any way unwell.” [247].

2. “…the Tribunal finds that the basis of the appellant’s theory on diarrhoea as being a contributor is very weak.” [248].

3. “The Tribunal finds also that the administration studies have not been shown to be of no weight or little weight or otherwise able to be downgraded.” [249].

19. At [253], the Tribunal stated, in the absence of any established cause which has not been overcome by the plaintiff, “the Tribunal is left with the opinion formed by Dr Wainscott based upon those administration trials”. Those trials established that the Hemoplex administered to the horse must have been eliminated well prior to its presentation.

20. Dr Wainscott formed the opinion that the administration of Hemoplex would have been expelled out of the horse’s system by the time of testing. In that respect, Dr Wainscott’s opinion was consistent with the Tribunal's earlier findings that weight should be given to those administration trials because it determined that it was not satisfied of Dr Major’s opinion “that Hemoplex was the overwhelming contributor to the level recorded, which was an outlier from the stable average, and that it flowed from the intense supplementation provided to the horse because of its previous severe illness” at [96].

21. At [259], the Tribunal found that “nothing about the environment as a contributor has been factually established.” I agree with the submission for the first defendant that, in part, the Tribunal’s reasoning suggested that because the plaintiff was no longer pressing environment as an issue or contributor to the high reading, then the Tribunal would not make rulings on the issue as the onus was on the plaintiff to factually establish environment as a cause.

22. At [260], the Tribunal found that the combination of “unwell, cumulative effect, feed and supplements and injections” do not explain the positive reading.

23. At [261], the Tribunal again mentioned that it accepted the plaintiff’s evidence that he not administered anything else to the horse.

24. Then at [262], the Tribunal noted that the plaintiff failed to establish a comfortable level of satisfaction that he was blameless. This finding related to the McDonough Category 3 proposition advanced by the plaintiff.

25. At [263] the Tribunal found, “the appellant fails to establish the horse did not process the cobalt through its system as opined (theory 2). There is the consequential finding that it received cobalt from another source but what it was is not known (theory 1). But in neither case do those theories assist the appellant”. I agree with the submission by the first defendant that the decision should be properly understood in this respect as meaning it had determined the plaintiff failed to establish theory 2, which left the Tribunal with theory 1. Theory 1 was not aptly described because it was not a theory, rather, it meant that that there was some other unknown source. This led to the principles under McDonough Category 2 being taken into account and, thus, this is why the Tribunal indicated those theories did not assist the plaintiff.

207. This logical pathway establishes that the decision of the Tribunal is not illogical or irrational, and in any event is predicated upon findings of fact which were open. As previously mentioned, the plaintiff has not established legal unreasonableness.

208. In all the circumstances, Ground 2 is dismissed.

GROUND 3

The plaintiff’s submissions

209. In broad terms, the Tribunal had regard to the case the parties both asked it to have regard to but did so “in a way that fundamentally misunderstood and misapplied those cases” because of an inflexible adherence to McDonough (which was a mere guide). Reference was also given to erroneous use of a penalty guidance provided by the first defendant and reliance on precedents.

210. In relation to Ground 3, the plaintiff submitted the following:

McDonough

1. Both parties before the Tribunal addressed the facts of the case in terms of the very general categorisation (and his Honour expressly emphasised the generality of his observations) of Judge Williams in McDonough of prohibited substance cases. There were three classes or categories:

1. First, where the regulator can establish positive culpability by deliberate wrongdoing or through ignorance or carelessness;

2. Secondly, where the Tribunal has no real idea how the prohibited substance got into the horse; and

3. Thirdly, where the trainer satisfied the Tribunal as to how the substance got into the horse in circumstances that show he has no real culpability or his culpability was low. In some such cases there may be no need for general deterrence at all and it may be appropriate to impose no penalty at all.

2. Judge Williams suggested at (at 11) that a penalty in a Category 2 case “may or may not end up being similar to the first category, every case depending on its own individual facts”.

3. McDonough itself was a case in which the trainer had no idea how the substance (which was a steroid that was prohibited) came to be in the horse. As found by Judge Williams, the likelihood was the banned substance was administered while the trainer had custody and management of the horse. Nonetheless, his Honour found the trainer blameless because he accepted the trainer’s evidence of denial of wrongdoing and his good character. Just like this case, there was a dispute over the expected times for accumulation and elimination of the substance and the racing vet conceded, like Dr Wainscott, that there were “too many variables” and that late elimination could not be excluded.

4. Judge Williams concluded (at 13), “the Tribunal considers that there is no justification for any disqualification of the trainer or even for any fine in view of the findings made. Of course, the horse will be disqualified as it has to be under the rules, but there will be no other penalty.” The findings of fact had many similarities to the matters the Tribunal accepted in this case.

5. Judge William’s discussion is a useful reference or shorthand starting point for some aspects of this case, but the Tribunal elevated McDonough to a rigid taxonomy with draconian consequences for the plaintiff based on a misapprehension and misapplication of the case.

6. The Tribunal indicated it would “apply the McDonough categories” at [158]. The Tribunal also stated is “required to find a penalty … not reduced on the basis that the [plaintiff] was blameless etc such that no penalty should be imposed or if there is to be a penalty, it be a very small one such as a fine” (at [265] and [280]). The plaintiff submitted this involved legal error in four ways:

1. Misunderstanding and misapplying the McDonough categories as requiring some precise scientific explanation of the specific readings, instead of indicating that the trainer may give some acceptable account of the facts and his conduct to show he is blameless or has otherwise less culpability than a deliberate and knowing breach of the rules for a nefarious purpose or carelessness or ignorance;

2. Impermissibly fettering the exercise of the discretion, or of carrying out the exercise of instinctive synthesis, by mechanically and explicitly omitting two of the options under AHRR r 256 and ruling them out consideration. The Tribunal also disregarded the full toolkit of sanctions AHRR r 256, whether provided singly and in some combination;

3. Wrongly assuming a fine under AHRR r 256 is a “small” penalty (at [142]) as that assessment must be relative to the actual conduct and circumstances in question including the lack of harm that the Tribunal had already accepted. The finding that concentrations were not “just above the threshold” (see at [271]) was not given any content adverse to the plaintiff because there was no finding that the particular concentration had any practical effect or meaning; and

4. By holding that a McDonough Category 2 “mandates a disqualification” (at [294], see also [272]), even where the Tribunal has found that there is no prospect of the plaintiff ever re-offending and there is no need for specific deterrence. Application of such a “mandate” is contrary to the provisions and scheme of the rules as the rules specify no mandatory penalty for a breach of AHRR r 190(1).

7. Unlike other civil penalty regimes which only provide for pecuniary penalties or protective regimes which only provide for disqualification on a determination of fitness to practice or not, the penalty discretion under the AHRR is not such a blunt instrument. There are a graduated series of sanctions. Accordingly, the Tribunal is required to give effect to the rules by considering the full range of options for dealing with the matter.

8. The Tribunal must be understood to have determined that the plaintiff was relevantly fit to be a trainer because it accepted that he was of good character and would not re-offend and there was no requirement of any specific deterrence. On those findings, there was no element of public protection that required (or justified) the imposition of a disqualification.

The Penalty Guidelines

1. The penalty guidelines referred to at [266] of the decision is not part of the AHRR. It is not a rule made or adopted under ss 21 or 22 of the HR Act. There is no statutory requirement under the Act or the AHRR or the Local Rules that it be considered or be used in a particular way.

2. It is in the nature of a standing submission or a policy that the first defendant applies to its own decisions. It can be considered as such by the Tribunal, but it cannot be used to fetter its broad consideration of the penalty options available to it under AHRR r 256 because:

1. To so elevate the penalty guidelines is incompatible with the scheme of the rules which provides the broad discretion in AHRR r 256 applicable to every offence except if the rules provide for a specific penalty.

2. The categorisations in the penalty guidelines have an arbitrary character, in the sense of not being able to be justified or understood by reference to the statutory power in its context, in this case the rules that have the statutory authority do not make any categorisation of severity by substance, only specified behaviours, and do not limit or direct the discretion provided under AHRR r 256 for the general case: Green v Daniels [1977] HCA 18; (1997) 13 ALR 1 at 10; cf Minister for Immigration, Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189 (“Gray”).

3. The Tribunal cannot abdicate its decision to a policy or submission, even in part (Gray at 205–206).

3. It was not an error for the Tribunal to consider the penalty guidelines at all, and indeed the Tribunal ostensibly reminded itself of the need to consider the case on its merits (at [268]). However, the Tribunal’s course of reasoning in [281]–[291] of the decision shows that it simply adopted the penalty guidelines’ approach of only considering the penalty of disqualification (including the approach under the “current” guideline rather than the one published at the date of the breach) and excluding any real, genuine or independent consideration of whether any other approach was appropriate.

4. In respect of [65]–[67], the Tribunal’s use of a starting point of disqualification at [291]–[297] of the decision without consideration of whether that was justified in the plaintiff’s case is the result of the fettering error.

5. The Tribunal's application of the penalty guidelines was an abdication of its task and led it into error.

Precedent

1. The Tribunal’s very limited consideration of “precedent” (at [281]–[291]) as requiring that only a disqualification be considered is also in error.

2. Other cases on other facts cannot be a binding precedent on the synthesis required to determine penalty and elevating their results to a rule is an error: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [304]; cf The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48.

3. The Tribunal’s description of its own finding in Russo v Harness Racing NSW (NSW RAT 23, August 2023) (“Russo”) that “in a McDonough category 2, anything less than a disqualification would be inappropriate” is a misstatement of the already limited value of that case. The parties in Russo agreed that a disqualification was the appropriate penalty (Russo at [10],) and made no detailed submissions on general deterrence. The Tribunal decided it did not warrant substantial examination, the need for disqualification on the basis of specific deterrence having already been conceded (at [12], [13] of the decision).

4. This fettering of the Tribunal’s discretion or consideration of the options under AHRR r 256 was contrary to the rule.

The first defendants’ submissions

211. The first defendant made the following submissions with respect to this ground:

McDonough

1. The plaintiff was not correct in submitting the Tribunal "elevated McDonough to a rigid taxonomy with draconian consequences".

2. The Tribunal used the McDonough categories as a starting point before going on to consider all the facts and circumstances of the case (see, for example, [265] of the decision). The Tribunal expressly stated that the penalty should be "appropriate to the facts and circumstances" of the case.

3. The Tribunal did not misunderstand the McDonough categories. Category 2 applies, as stated in McDonough:

" ... where at the conclusion of any evidence and plea the Tribunal is left in the position of having no real idea as to how the prohibited substance came to get into the horse. This may be with the trainer giving some explanation which the Tribunal is not prepared to accept ... ".

4. That accords with the Tribunal's approach in this case.

5. There is nothing in the Tribunal's reasoning to suggest that by reason of its reference to the McDonough categories the Tribunal "mechanically and explicitly omit[ted] two of the options under AHRR r 256".

6. The plaintiff criticised the Tribunal's reference at [265] of its Decision to the penalty being reduced to "a very small one such as a fine". That conclusion does not display any error of law or jurisdictional error. It was open to the Tribunal to consider that a fine would be a less serious penalty than a disqualification.

7. The Tribunal did not find that McDonough Category 2 "mandates" a disqualification. Rather, the Tribunal concluded at [294] of the decision that "the general deterrence message here must be one which is in the public interest for the protection of the industry and mandates a disqualification". The Tribunal was entitled to refer to the McDonough categories (amongst other things) in assessing objective seriousness, as it did at [272] of its decision.

8. There is no basis to suggest that the Tribunal was not well aware of the various penalties that could be imposed on a person before it such as the plaintiff. The Tribunal considered that a disqualification was an appropriate penalty on the facts and circumstances of the case before it. This was a conclusion open to it and does not display error of law or jurisdictional error.

9. The plaintiff is wrong to contend that the Tribunal had accepted that the only open conclusion was that there was no unknown cobalt source.

The Penalty Guidelines

1. The plaintiff accepts that the penalty guidelines are relevant in the circumstances of the present case. However, the plaintiff erroneously contends that the Tribunal adopted the guideline without any real or genuine consideration of the applicant's case.

2. That submission should not be accepted.

3. The plaintiff accepted that the penalty guidelines provided for a "starting point" of not less than 5 years' disqualification for the offence to which the plaintiff pleaded guilty. On the Tribunal's approach, the penalty suggested by the penalty guidelines have been reduced by a period of 4 years and 3 months.

4. Secondly, the plaintiff accepted that the Tribunal expressly stated in its decision that the penalty guidelines was not binding, and the case needed to be considered on its merits. It is clear from the decision that the Tribunal considered all of the circumstances of the plaintiff's case and did not consider itself bound by the penalty guidelines.

5. Thirdly, in light of what is stated in the decision, the plaintiff's approach would require this Court to reject the Tribunal's expressed reasoning process as not reflecting its actual reasoning process. There is no basis on which to do so.

6. The plaintiff submitted that the Tribunal concluded that precedent "required" it to disqualify the plaintiff. Again, this does not fairly reflect the Tribunal's reasoning process.

7. The Tribunal expressly considered all circumstances of the plaintiff's case. The Tribunal's reference to precedent was in relation to the "issue of parity" (at [281]). It was plainly open to the Tribunal to consider precedent in this context.

8. In relation to the Tribunal's commentary on the case of Russo at [287], those remarks were made expressly by reference to "the facts and circumstances of that case". The Tribunal was not saying, contrary to the plaintiff's submission, that its earlier decision in Russo required it to disqualify the plaintiff regardless of any of the other circumstances of his case.

9. The plaintiff's Ground 3 of review should therefore be dismissed.

Consideration: Ground 3

McDonough

212. In substance, I have earlier rejected the contentions made by the plaintiff under this heading in the course of my considerations under Ground 1. ^[20]

     20. See at [111]-[114].

213. As the plaintiff’s submissions in this respect are slightly wider, it is convenient to restate some earlier conclusions and deal with those additional considerations together as follows (without returning to the earlier analysis unless necessary):

1. The Tribunal did not elevate McDonough to a rigid taxonomy. The Tribunal used the McDonough categories (and, in particular, Category 3) as a starting point before going on to consider all the facts and circumstances of the case.

2. The Tribunal did not misunderstand the McDonough categories. I have earlier dealt in detail with those categories and the Tribunal’s application of them. In particular, the Tribunal properly understood that Category 2 applied where the Tribunal is left in the position of having no real idea as to how the prohibited substance came to get into the horse ^[21] . The fact that the plaintiff did not establish that he fell under Category 3 simply entailed that he did not receive the benefit of a finding of that kind but left open the wide range of considerations available under Category 2. The Tribunal did not mechanically and explicitly omit two of the theories under AHRR r 256.

3. The Tribunal did not find that McDonough Category 2 mandates a disqualification. The Tribunal came to a view that disqualification should arise having regard to the need for general deterrence. As to objective seriousness of the offending, it was not an error to consider the McDonough categories (see at [272] of the decision).

4. I have earlier dealt with the appropriate understanding of the latter part of [265] of the decision. I accept the submission advanced by the first defendant that it was open to the Tribunal to consider that a fine would be a less serious penalty then disqualification. In any event, that conclusion does not display any error or law or jurisdictional error.

5. The Tribunal exhibited a clear awareness of the available penalties but considered the appropriate penalty was disqualification on the facts and circumstances of the case before it.

6. As earlier discussed, the plaintiff’s contention that the Tribunal had accepted that the only open conclusion was that there was no unknown cobalt source should be rejected.

   21. McDonough at 9.

The Penalty Guidelines

214. The first defendant is correct to submit that, in order to accept the plaintiff’s contentions in this respect, the Court would need to reject the Tribunal’s express reasoning process such that the express reasoning process would not be accepted as the Tribunal’s actual reasoning process. In my view, there is no proper bases for the plaintiff’s contentions in that respect.

215. My reasons for that consideration are as follows:

1. At [268] of the decision, the Tribunal found as earlier observed that the more critical factor than the penalty guidelines is “the actual conduct established against the appellant and the facts and circumstances of this case”. The Tribunal also observed that no greater penalty than the facts and circumstances warrant should be imposed.

2. The Tribunal noted that the starting point under the penalty guidelines was 5 years (at [295]). The Tribunal then stated that, in the circumstances of this case, the starting point should be 4 years disqualification. The Tribunal proceeded, on the facts and circumstances of the case, to reduce the penalty overall by 4 years and 3 months, namely, 10% of the disqualification period under the penalty guidelines.

216. In my view, there is no proper basis to conclude that the Tribunal did not give effect to its stated reasoning. There can be no criticism of the Tribunal’s reference to the penalty guidelines as properly conceded by the plaintiff. The Tribunal considered all of the facts and circumstances of the particular matter and then exercised a discretion to penalise the plaintiff at a point significantly less than what the penalty guidelines would have imposed (which penalty itself represented a reduction in the penalty upon the appeal).

Precedent

217. The plaintiff’s submissions were essentially that the Tribunal considered itself to be hide bound by precedent such that the Tribunal found that it must disqualify the plaintiff. However, this does not properly represent the reasoning of the Tribunal or recognise that the Tribunal determined the penalty based upon the facts and circumstances of the case before it. In any event, the Tribunal’s reference to precedent was only in relation to the issue of parity (at [281]).

218. The reference by the Tribunal to an earlier decision of Russo does not, in my view, erect a general proposition that Category 2 cases must result in a disqualification. The Tribunal clearly stated that the approach adopted was on “the facts and circumstances of that case”. Furthermore, the Tribunal observed that, in Russo, general deterrence was found to be needed at a high level.

219. If the Tribunal was asserting that it was bound by the decision in Russo and in that light, it was required to disqualify the plaintiff, regardless of any other circumstance of his case, then the plaintiff would be correct to contend that there was, at least, legal error. However, that was not the approach taken by the Tribunal as was evident from the whole of its decision including those parts which discuss Russo.

220. In my view, Ground 3 of judicial review should therefore be dismissed.

Materiality

221. The first defendant submitted that the onus was on the plaintiff to prove that any of the errors of law identified would have given rise to a different outcome and that they have not proved that.

222. It is unnecessary to consider the question of materiality in light of the conclusions I have reached.

Conclusion

223. In all the circumstances, the Amended Summons should be dismissed.

224. There remains the injunction made at the outset of the proceedings. It would be appropriate that the injunction be dissolved.

225. On the basis that costs should follow the event, and there does not appear to be any disqualifying considerations, it would appear that an order should be made for the plaintiff to pay the first defendant’s costs.

226. However, given, at least, the proceedings for the injunction, I propose to hold over any final consideration as to the question of costs for a period of 7 days. At the end of that 7-day period, the parties will either state their agreed position as to costs or alternatively propose an agreed program to dispose of the question of costs. It would appear appropriate that, if costs were disputed, the question of costs be determined on the papers. The parties should, if necessary, advise their stance on that matter. No issue of costs arises with respect of the Tribunal given that the Tribunal entered a submitting appearance.

227. The first defendant shall bring in Short Minutes of Order within 7 days of this judgment which, in the event of a dispute as to costs, will include an agreed program for the resolution as to any issues as to costs, and an indication as to whether any issue as to costs would be resolved on the papers.

Orders and Directions

228. The first defendant shall file and serve Short Minutes of Order reflecting this decision within 7 days of the publication thereof.

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Endnotes

FCAFC 263 at [52]-[54], [68] (Black CJ, French and Selway JJ).

Amendments

17 July 2024 - Paragraph [21] - changed “Mr VM Heath” to “Ms VM Heath”

Decision last updated: 17 July 2024