Racing Victoria Ltd v Riley - [2016] VSCA 230

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0113

RACING VICTORIA LIMITED (ACN 096 917 930)	Applicant
v
MARK RILEY	Respondent

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JUDGES:	MAXWELL ACJ, HANSEN and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 August 2016
DATE OF JUDGMENT:	21 September 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 230
JUDGMENT APPEALED FROM:	[2015] VSC 527 (Bell J)

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ASSOCIATIONS AND CLUBS – Horse racing – Rules of racing – Prohibitions on performance-enhancing substances – Substance prohibited unless present at or below specified concentration – Blood sample taken – Testing by accredited laboratory – Laboratory reported substance present at above specified concentration – Reading ‘rounded up’ – Whether rules authorised ‘rounding up’ – Scientific conventions – Interpretation of words and numbers distinguished – Licensed trainer bound by approved testing procedures – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr C Pannam QC with Mr J C Hooper	Minter Ellison
For the Respondent	Mr P F Tehan QC with Mr S Mukerjea	Patrick W Dwyer Solicitor

MAXWELL P
HANSEN JA
OSBORN JA:

Summary

Horse racing in Australia is a highly regulated industry. This is hardly surprising, given the high level of public interest and participation and the consequent need to maintain public confidence in the industry. As has long been recognised, regulation is necessary both to ensure fair and open competition in racing and to maintain the health and wellbeing of horses and their jockeys.[1]
[1]See, eg, R v Disciplinary Committee of Jockey Clubex parte Aga Khan [1993] 2 All ER 853, 857–8; Harper v Racing Appeal Tribunal (1995) 12 WAR 337, 347.

Like most sports, horse racing has strict prohibitions against the use of performance-enhancing substances. The Australian Rules of Racing (the ‘Australian Rules’) list some 80 categories of prohibited substances. Most are prohibited absolutely. In respect of some substances, however, the Australian Rules provide that they cease to be prohibited if present ‘at or below’ a specified concentration. The present case concerns what are called ‘alkalinising agents’, which are prohibited substances except when present at or below total carbon-dioxide (TCO₂) at a concentration of 36.0 millimoles per litre (‘mmol/L’) in plasma.[2]
[2]Racing Australia, Australian Rules of Racing (1 July 2014) r 178C(1)(a).

At the direction of the stewards, a blood sample was taken on 13 July 2014 from a horse trained by the respondent, Mr Riley. Testing revealed a TCO₂ concentration of 37.061 (mmol/L) per litre. The testing laboratory ‘rounded up’ that figure to 37.1 mmol/L, for the purpose of expressing the reading to one decimal place. In the certificate which it provided to the applicant, Racing Victoria Limited (‘RVL’), the laboratory stated that the concentration was 37.1 mmol/L, but noted that the ‘measurement uncertainty’ was 1.0 mmol/L. Allowing for the measurement uncertainty, the reading was treated as a reading of 36.1 mmol/L.

On the basis of the laboratory’s certificate, the Racing Appeals and Discipline Board found Mr Riley guilty of administering a prohibited substance for the purpose of affecting…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2016] VSCA 230
Decision Date: 21 September 2016

CaseChat Overview and Summary

The case of Racing Victoria Ltd v Riley involved the regulatory body for horse racing in Victoria and a licensed trainer, Mr Riley. The dispute centred on the application of rules governing the use of performance-enhancing substances in horse racing, specifically in relation to the detection of a prohibited substance in a horse's blood sample. The case was heard by the Court of Appeal of the Supreme Court of Victoria.

The court was required to decide whether the rules of racing allowed for a laboratory result to be "rounded up" when reporting the concentration of a prohibited substance. The rules stated that a substance was prohibited unless present at or below a specified concentration, and the laboratory's report indicated that the substance was present at a concentration above the specified limit. However, it was alleged that the laboratory had rounded up the concentration when reporting the result. The court needed to determine whether this rounding up was authorised by the rules and, if not, whether this constituted a breach of the rules by the licensed trainer.

The court held that the rules did not authorise the laboratory to round up the concentration of the prohibited substance when reporting the result. The court distinguished between the interpretation of words and numbers in the rules, finding that while the words of the rules may have been ambiguous, the numerical concentration specified was not. The court also held that the licensed trainer was bound by the approved testing procedures, which did not include rounding up the concentration. As a result, the court found that the trainer had breached the rules and allowed the appeal by Racing Victoria Ltd.

The final orders of the court were not explicitly stated in the text, but it can be inferred that the outcome would have involved some form of disciplinary action against the licensed trainer for breaching the rules of racing, potentially including fines or suspension from racing activities.

Orders