Re the Racing Penalties Appeal Tribunal Of Western Australia - [1999] WASC 126

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE THE RACING PENALTIES APPEAL TRIBUNAL OF WESTERN AUSTRALIA; EX PARTE McPHERSON [1999] WASC 126

CORAM: McKECHNIE J

HEARD: 16 JULY 1999

DELIVERED : 16 JULY 1999

FILE NO/S: CIV 1780 of 1999

MATTER :Application for a Writs of Certiorari and Mandamus against the Racing Penalties Appeal Tribunal of Western Australia

EX PARTE
ROBERT CHARLES McPHERSON
Applicant

Catchwords:

Application for certiorari - Power of tribunal to receive fresh evidence - Whether refusal is an error of law - Inferences to be drawn from further evidence

Legislation:

Racing Penalties (Appeals) Act 1990 (WA)

Result:

Application for order nisi for writ of prohibition refused

Representation:

Counsel:

Applicant: Mr M J Hayter

Solicitors:

Applicant: M J Hayter & Co

Case(s) referred to in judgment(s):

Perpetual Trustees WA Limited v City of Joondalup, unreported; Library No 990195; 16 April 1999

Case(s) also cited:

Nil

McKECHNIE J : The test for an order nisi is set out in Perpetual Trustees WA Limited v City of Joondalup, unreported; Library No 990195; 16 April 1999. I adopt that as a test generally. There must be some chance of success on further consideration of the documents. This application is made ex parte. On 13 January 1999 the applicant was convicted by the stewards of a breach of r 178 of the Australian Rules of Racing and disqualified as a licensed trainer with the West Australian Turf Club for a period of two years. This disqualification is likely to have a catastrophic effect on his business.
He appealed to the tribunal established under the Racing Penalties (Appeals) Act 1990. On 5 March 1999 the tribunal heard the appeal and reserved its decision. After a hearing on 15 March 1999 the advocate for the applicant wrote to the tribunal chair seeking the introduction of fresh evidence. By letter dated 30 March 1999 the chair indicated that he would not consider the further evidence.
The tribunal delivered its decision on 15 July 1999, dismissing the appeal. There is no appeal to this Court from the decision of the tribunal: Racing Penalties (Appeals) Act 1990 s 14(1)(b). This is an important consideration. A prerogative writ is not a de facto mode of appeal. Parliament has determined the procedure for regulating racing, including a right to appeal to a tribunal chaired by a legal practitioner who would be eligible for appointment as a Magistrate.
In essence, the applicant was convicted of a breach of reg 178, in that he failed to take all proper precautions to prevent the administration of a prohibited substance to a horse. The applicant, a trainer for many years, sent his horses to Kalgoorlie unsupervised. One horse, "Only With You", was subjected to a urine test which tested positive to caffeine and caffeine metabolites.
At the stewards' inquiry Dr Thomas Tobin, an eminent pharmacologist and toxicologist from Lexington, Kentucky, gave evidence. Clearly one of the issues for consideration by the stewards was that the sample may have been indirectly contaminated. Mr Tobin gave evidence both by letter and later in person as to this issue. Evidence was also given by a representative of the Australian Racing Forensic Laboratory in great detail about the possibility of contamination. The stewards concluded:
"…we don't believe the evidence before the Stewards shows any direct signs of contamination. Seals to the samples were not tampered with and the control sample provided a negative result, therefore, we don't believe contamination to have occurred …"
One of the grounds of appeal to the Tribunal raised the question of contamination. Ground 3 stated:
"Mr McPherson's conviction is unsafe because of the operating procedures in the swab box at the Kalgoorlie Race Club."
This ground was dealt with relatively briefly by the Chairman who said in the course of his reasons:
"As to the third ground relating to the operating procedures and the swab box nothing was presented to suggest that anything untoward occurred which tainted the sampling and testing exercise. I am not persuaded on this ground."
From that, albeit brief resume by the chairman, it is clear that the question of indirect contamination was certainly a live question before the tribunal and the tribunal had before it the evidence which had been put before the stewards. So even if the stewards themselves did not deal with the question of indirect contamination directly in their reasons, certainly the tribunal did.
The essence of the application today relates to the question of contamination. It is asserted within the application in various ways that the tribunal has erred in failing to consider the fresh evidence which was sought to be presented. I have already referred to the letter from the lay advocate of 15 March 1999. It sets out various matters relating to the "Sister Patricia" case and included a letter from Mr Tobin dated 14 March 1999, a press release in relation to the "Sister Patricia" case and a newspaper report. Mr Maumill, the advocate, concluded:
"We believe these developments should be brought to the attention of tribunal members before they reach a decision in the McPherson appeal.
Accordingly, we are respectfully requesting a re‑opening of the McPherson inquiry to allow us to present this fresh evidence to tribunal members for consideration."
The procedure adopted by Mr Maumill has conformed with Racing Penalties (Appeals) Act 1990 s 11(3)(c) which provides:
"An appeal shall be heard and determined upon the evidence at the original hearing when the decision or finding appealed against was made, but, if the member presiding considers that to be proper, expert or other evidence may be required or admitted."
The new evidence, as I have said, concerned a horse called "Sister Patricia". As the press release makes clear, a sample was taken from "Sister Patricia" and subsequently it developed that the swab attendant who was involved had used a topical hydrocortisone cream on her wrist and that there was hydrocortisone detected in the urine sample. Though the stewards found no clear evidence of contamination to the sample, they believed there was a real possibility of a suspicion of sample contamination. They further instructed the veterinary steward to conduct a full and comprehensive review of the swabbing procedures in this State.
The first hurdle for the applicant is that the chairman has been given a discretion to admit the material. The wrong exercise of that discretion does not of itself necessarily mean that there has been a jurisdictional or procedural error. I turn to consider the material.
The fresh evidence is not directly relevant. It is a further illustration that it is possible samples may be indirectly contaminated. I say further because this issue of indirect contamination was very much alive before both the stewards and the tribunal. The evidence does not raise an inference, direct or indirect, as to the possibility of contamination in the present case.
The tribunal found that nothing was presented to suggest that anything untoward occurred which tainted the sampling and testing exercise. The fresh evidence did not in my opinion affect that finding of the tribunal. The advocate's letter did not seek to lead further evidence of the actual sampling in this case, only in effect to emphasise the general possibility of indirect contamination.
In my judgment, having regard to the statutory indication against further evidence, the chairman's decision in this case to refuse to admit that evidence was correct. The real challenge to the tribunal's finding, stripped away from the language suitable for prerogative relief, is that the tribunal made a factual error and should have found the applicant not guilty because of the possibility of indirect contamination of the sample.
If such an error was made, a matter on which I express no opinion, it is not susceptible to relief. It is a factual error very much within the jurisdiction of the tribunal. I have read the decision of the tribunal with reference to particulars (a) to (e) in the application. I am unpersuaded that any of the matters raised there are fairly arguable within the sense of the test. Consequently the application is refused.