Trevor-Jones v Harness Racing New South Wales

Case •

[2024] NSWSC 876

•

19 July 2024

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Trevor-Jones v Harness Racing New South Wales [2024] NSWSC 876
Hearing dates: 7 May 2024, 16 May 2024
Date of orders: 19 July 2024
Decision date: 19 July 2024
Jurisdiction:Common Law
Before: Wright J
Decision:

(1)   The time for commencement of the proceedings is extended to 5 June 2023.

(2)   The plaintiffs’ summons filed on 5 June 2023 is dismissed.

(3)   In relation to the question of costs:

(a)   The plaintiffs are to file and serve any evidence and written submissions, not exceeding three pages, on or before 26 July 2024;

(b)   The first defendant is to file and serve any evidence and written submissions, not exceeding three pages, on or before 2 August 2024;

(c)   The plaintiffs are to file and serve any material in reply, not exceeding two pages, on or before 9 August 2024; and

(d)   The decision on costs is to be made on the papers, unless a party indicates in the written submissions that an oral hearing is sought.

Catchwords:

ADMINISTRATIVE LAW – judicial review– error of law on the face of the record or jurisdictional error – decisions of the Racing Appeals Tribunal – challenge to the Racing Appeals Tribunal’s construction of Australian Harness Racing Rules (AHRR) in relation to the exemption in r 188A(3) of altrenogest when administered to fillies and mares – whether exemption in r 188A(3) operates so as to exempt epitrenbolone and trendione from being “prohibited substances” under r 188A or r 190A(2) or from being anabolic androgen steroids within r 190AA – factual premise for grounds of review not made out – no misconstruction of r 188A(3) – no other error of law on the face of the record or jurisdictional error – summons dismissed

GAMING AND RACING – harness racing – disciplinary offences – presenting a horse for a race not free from prohibited substances – evidentiary certificates under AHRR r 191 as to presence of prohibited substances – challenge to reliance on certificates when “materially flawed” within r 191(7) – whether certificates materially flawed – no misconstruction of r 191 or other error in relation to finding that certificates not materially flawed – summons dismissed

Legislation Cited:

Australian Harness Racing Rules, rr 94A, 188A, 188A(3), 190, 190A, 190AA, 191, 195, 218, 219, 309

Harness Racing Act 2009 (NSW)

Supreme Court Act 1970 (NSW), ss 69(3)(a), 69(4)

Uniform Civil Procedure Rules 2005 (NSW), rr 59.10(1)-(2)

Cases Cited:

ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18

Day v Harness Racing New South Wales (2014) 88 NSWLR 594; [2014] NSWCA 423

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

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

Category:Principal judgment
Parties: Peter Douglas Trevor-Jones (First Plaintiff)
Debbie Karen Wenning (Second Plaintiff)
Rodney Paul Wenning (Third Plaintiff)
Harness Racing New South Wales (First Defendant)
Racing Appeals Tribunal (Second Defendant)
Representation:

Counsel:
V Heath (First, Second and Third Plaintiffs)
T Wong SC with J Elks (First Defendant)

Solicitors:
GJ Harris & Co (First, Second and Third Plaintiffs)
Cadre Moss (First Defendant)
File Number(s): 2023/00179706

Judgment

Introduction

  1. By a summons for judicial review filed on 5 June 2023, the plaintiffs seek an order under s 69(3)(a) of the Supreme Court Act 1970 (NSW) in the nature of certiorari quashing the decisions made on 23 December 2022 and 6 March 2023 by the Racing Appeals Tribunal, the second defendant, and consequential relief including declarations concerning the operation of the Australian Harness Racing Rules (AHRR) in the circumstances of the present case.

  2. The first plaintiff, Mr Trevor-Jones, is a licenced trainer of standardbred horses engaged in harness racing in New South Wales. Ms and Mr Wenning, the second and third plaintiffs, and Mr Travor Jones are the co-owners of the horse, I’m All Courage, and a foal bred from her in the 12-month period after 20 April 2020.

  3. The Tribunal filed a submitting appearance in these proceedings. The first defendant, Harness Racing New South Wales, (HRNSW) is the Controlling Body in respect of harness racing in New South Wales under the Harness Racing Act 2009 (NSW). HRNSW has appeared and acted as the contradictor in these proceedings.

  4. Essentially, the plaintiffs’ case is that the Tribunal’s decisions are affected by error of law on the face of the record and jurisdictional error. The record in the present case includes, by virtue of s 69(4) of the Supreme Court Act 1970 (NSW), the Tribunal’s reasons for its ultimate determination, that is both the reasons for the 23 December 2022 concerning breach of the Australian Harness Racing Rules (AHRR) and the penalty decision of 6 March 2023.

Background and factual circumstances

  1. By its decisions, the Tribunal inter alia dismissed an appeal against the decision of the stewards of HRNSW of 14 October 2020 that Mr Trevor-Jones had breached r 190 of the AHRR, which deals with presenting a horse for racing free of prohibited substances, because I’m All Courage tested positive for trendione and epitrenbolone and against the consequential penalty orders.

  2. The AHRR are the Rules which govern harness racing in New South Wales and originally came into effect in September 1999. It was not in dispute that for the purposes of the present case the relevant version of the AHRR was the version as at 12 December 2019. The most relevant Part of the AHRR was Pt 12, Prohibited Substances, which identifies what, how and when substances are prohibited. I shall return to consider the relevant provisions of the AHRR later in this judgment.

  3. The relevant background and factual circumstances are derived from the matters agreed between the parties and the findings made by the Tribunal in the written reasons for its decision of 23 December 2022 concerning breach of the AHRR, [1] and the ex tempore reasons delivered on 6 March 2023 for the Tribunal’s decision on penalty. The background and factual circumstances include what is set out in the paragraphs which follow.

    1. Paragraphs from this decision are referred to in this judgment as “D[number]”, so that for example D[46] refers to paragraph 46 of the Tribunal’s decision of 23 December 2022.

  4. There is a need for drugs to be used to suppress oestrus behaviour in mares and fillies in order to protect and promote the safety and welfare of the subject mare or filly, other horses and anyone who handles or is in near proximity to the subject horse.

  5. Since at least the early 2000s, a chemical compound called altrenogest has been used with considerable frequency for harness racing horses to suppress oestrus behaviour. Altrenogest has no performance enhancing effect.

  6. In 2011, an exception was included in AHRR r 188A(3) so that “altrenogest when administered to fillies and mares” was not a prohibited substance for the general purposes of the AHRR.

  7. Altrenogest is also known as allyl-trenbolone because it is made up of a trenbolone molecule with additional hydrogen and carbon atoms attached in the form of an allyl group.

  8. Other chemical compounds which are relevant in the present case include:

  1. trenbolone, which when the allyl group is attached forms altrenogest but when the allyl group is not attached is a different chemical compound from altrenogest;

  2. epitrenbolone, which is an isomer of trenbolone and not a metabolite of altrenogest;

  3. trendione which is a metabolite of trenbolone and epitrenbolone but not of altrenogest.

  1. Trenbolone, epitrenbolone and trendione are androgenic anabolic steroids (AASs) and AASs are prohibited under various provisions of the AHRR, which will be referred to in more detail below.

  2. As to the presence of epitrenbolone and trendione in relation to altrenogest, the Tribunal found in the reasons for its decision of 23 December 2022 that:

  1. “the manufacturing process [for altrenogest] is such that trace amounts of de-allylated trenbolone results in trace amounts of trenbolone, epitrenbolone and trendione, together with unmetabolised and metabolised altrenogest”, at D[240];

  2. “the manufacturing process for altrenogest leads to the presence of the two substances [epitrenbolone and trendione] but by that process, possibly by de-allylated trenbolone, they become distinct substances That is, the isomers and metabolites become present with the altrenogest product. But, on the other hand, there is evidence that trendione and epitrenbolone are not unavoidable concomitants of altrenogest …”, at D[289];

  3. “[t]he evidence does not establish what occurs in the manufacturing process to give two substances [epitrenbolone and trendione] in stage three of that process. It could be metabolism, a chemical reaction or an environmental process. Whatever it is, something happens. The Tribunal does not have to decide. … The effect is that in the manufacture of altrenogest two different substances are created, ie from allyl-trenbolone to give trendione and epitrenbolone”, at D[290]-D[291];

  4. “[t]here is comfort in that the manufacturer says whilst trendione and epitrenbolone are detected in stage three of the [manufacturing] process they are not in the final product”, at D[293];

  5. although altrenogest has been used with considerable frequency since the early 2000s and many of those horses on which it was used were presented to race, the detection of trendione and epitrenbolone in the plaintiffs' horse in 2020 was only the third occasion on which these chemical compounds had been detected in race day samples from horses treated with altrenogest, at D[237]; and

  6. "[i]t is not known why so few positives have been detected. Issues about batch variation, testing sensitivity, timings of doses and variations in the horses themselves, and others, have been canvassed. None of these have conclusively determined a reason", at D[238].

  1. Those paragraphs are not absolutely clear, but the Tribunal’s reasons are to be read fairly as a whole, not being concerned with looseness of language or unhappy phrasing and not with an eye keenly attuned to the perception of error, in accordance with the well settled propositions referred to in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 (Brennan CJ, McHugh, Toohey and Gummow JJ); [1996] HCA 6. When the Tribunal’s reasons are so read, the relevant findings can be summarised as including that, even though during stage three of the manufacturing process for altrenogest the two chemical compounds trendione and epitrenbolone are present in trace amounts, they are not unavoidable concomitants of altrenogest and are not necessarily in the final product.

  2. In 2011, when the exception for altrenogest was inserted into r 188A(3), the detection of trendione and epitrenbolone was “not an alive issue” and did not become so until 2018.

  3. On 1 May 2014, the AHRR were amended so as to prohibit the use of AASs and the new rules in that regard included rr 94A and 190AA. On the same day, HRNSW published a notice entitled “Anabolic Steroid Notice – Ban Takes Effect Today – 1 May 2014” which detailed the implementation and amendments of the AHRR banning the use of AASs in standardbred horses at any time from birth until retirement. In that notice, “trenbolone and other substances with a similar chemical structure or similar biological effect(s)” were specifically identified as being prohibited. The notice also contained the following:

“Altrenogest {in for example, Regumate) is still permitted to be used in fillies and mares to regulate their oestrus cycle”.

  1. On 1 May 2015, HRNSW published a circular entitled “Anabolic Steroids Reminder” which reiterated the matters referred to in the 2014 notice.

  2. On 1 May 2016, HRNSW published another circular which stated:

“Which horses are affected by these rules?

The use of anabolic androgenic steroids will be banned in all Standardbreds from birth until retirement as a racehorse. There are no therapeutic exemptions of any kind. The ban applies to all unregistered and registered Standardbred racehorses of any age. Standardbreds can be tested at any time and this includes when spelling, training and racing.”

  1. In 2018, the two substances trendione and epitrenbolone came to be detected after altrenogest had been administered to fillies and mares.

  2. On 25 June 2018, the HRNSW Integrity Department published a notice entitled “NOTICE TO INDUSTRY, WARNING – PRODUCTS CONTAINING ALTRENOGEST”. The content of that notice was found to include:

“… products containing altrenogest may contain levels of trenbolone and trendione which are banned substances with extended detection times … Until further notice, trainers and veterinarians are advised to IMMEDIATELY STOP the use of products that contain altrenogest.”.

  1. On 13 February 2019, a further similar notice was issued in relation to products containing altrenogest.

  2. On 9 October 2019, a veterinarian, Dr Corones, prescribed daily oral altrenogest and supplied it, by way of the registered veterinary product Readyserve, to the subject horse, to suppress behaviours for the purposes of safety and welfare. The veterinarian told Mr Trevor-Jones that this treatment, while the horse was racing, was legal. The daily dose was gradually reduced. The Tribunal expressly found that the subject horse was administered altrenogest and was not administered trenbolone, epitrenbolone or trendione.

  3. On 20 April 2020, Mr Trevor-Jones presented the horse I’m All Courage to race in the Barkers Butchery Pace (1730 metres) at a meeting conducted by HRNSW in Bathurst. A urine sample was taken from the horse, following its win in race 7 at that meeting.

  4. On 8 May 2020, the Australian Racing Forensic Laboratory (ARFL) reported that the screening result had returned trendione with altrenogest detected and the detection levels of trenbolone and epitrenbolone had not been determined. Mr Trevor-Jones was notified of the AFRL’s findings.

  5. On 1 June 2020 the ARFL reported detection of the following in the sample:

“altrenogest 86ng per ml, trendione 5ng per ml, epitrenbolone 0.6ng per ml and trenbolone 0.5ng ml (did not pass criteria for reporting).”

  1. ARFL subsequently certified on 2 June 2020 the presence of prohibited substances, trendione and epitrenbolone, in the urine sample. Confirmatory tests were carried out by Racing Analytical Services Ltd (RASL).

  2. On 3 July 2020, RASL certified that the urine sample was shown to contain trendione and epitrenbolone.

  3. It was accepted by both parties in the Tribunal that the amounts of the two substances detected were “at trace levels”. As noted above, this was only the third time that these substances had been detected in race day samples from horses treated with altrenogest.

Australian Harness Racing Rules

  1. The AHRR, in the form applicable at the relevant time, contained the following. In the Dictionary, the relevant definitions were:

“’Controlling Body’ means

(a)  Save and except for paragraph (b) an organisation which by convention, recognition or law is or is deemed to be in control of harness racing in a State or Territory of Australia or in part of or the whole of a country;

…

’Horse’ means a horse bred, cared for, managed, trained, raced or otherwise dealt with for purposes connected with the harness racing industry.

…

’Therapeutic substance’ means a prohibited substance to which a screening limit applies and which is promulgated as such from time to time by Harness Racing Australia and published on the websites of Harness Racing Australia and a Controlling Body.”

  1. The relevant rules included:

“Prohibited Substances [Rules 188 – 195]

Determination of prohibited substance

188. (1) The Controlling Body may determine -

(a) anything to be a substance;

(b)  a substance to be a prohibited substance;

(c)  a substance which in the opinion of the Controlling Body has or may have a certain effect to be a prohibited substance;

(d)  a substance coming within a nominated category or class to be a prohibited substance;

(e)  a substance when in or on a horse to be a prohibited substance;

(f)  a substance when in or on a horse at or above a nominated level to be a prohibited substance;

(g)  a substance when in or on a horse for a nominated time to be a prohibited substance.

(2)  When making a determination under sub-rule (1) the Controlling Body may act under any paragraph or any combination of paragraphs in that sub-rule.

188A. (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 per millilitre 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

- 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 antiinfective 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.

…

Presentation free of prohibited substances

190. (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.

(5) A horse is presented for a race during the period commencing at 8.00 a.m. on the day of the race for which the horse is nominated and ending at the time it is removed from the racecourse after the running of that race.

(6) Where a trainer intends to leave another person in charge of a horse in the trainer's absence, then prior to doing so, the trainer must notify the Chairman of Stewards, and the notification must be in the manner, within the time, and containing the information determined by the Controlling Body or the Chairman of Stewards.

(7) A person can only be left in charge of a horse by a trainer with the approval of the Chairman of Stewards.

(8) A trainer who fails to comply with sub-rule (6) or sub-rule (7) is guilty of an offence.

Out of Competition Testing

190A. (1) When a sample taken at any time from a horse being trained or cared for by a licensed person has detected in it any prohibited substance specified in sub-rule (2):-

(a) The trainer and any other person who was in charge of such horse at the relevant time shall be guilty of an offence.

(b) The horse may be disqualified from any race in which it has competed subsequent to the taking of such a sample where, in the opinion of the Stewards, the prohibited substance was likely to have had any direct and/or indirect effect on the horse at the time of the race.

(2) For the purpose of sub-rule (1), the following substances are specified as prohibited substances:-

(a) haematopoiesis – stimulating agents, including but not limited to erythropoietin (EPO), epoetin alfa, epoetin beta, darbepoetin alfa, and methoxy polyethylene glycolepoetin beta (Mircera);

(b) insulins;

(c) growth hormones and their releaseing factors;

(d) insulin–like growth factor–1;

(e) substances listed in Schedule 8 and Schedule 9 of the Standard for the Uniform Scheduling of Medicines and Poisons contained in the Australian Poisons Standard;

(f) selective androgen receptor modulators (SARMS);

(g) selective estrogen receptor modulators (SERMS);

(h) selective opiate receptor modulators (SORMS);

(i) peroxisome proliferator activated receptor 8 (PPAR8) agonists, including but not limited to GW 1516;

(j) AMPK activators, including but not limited to AICAR (5–amino–1–β–D–ribofuranosyl–imidazole–4–carboxamide);

(k) other agents that directly or indirectly affect or manipulate gene expression;

(l) hypoxia inducible factor (HIF)–1 stabilisers, including but not limited to ITPP (myoinositol trispyrophosphate); and hypoxia inducible factor (HIF) – 1 activators, including but not limited to Xenon and Argon;

(m) agents modifying myostatin function, including but not limited to myostatin inhibitors;

(n) oxygen carriers including but not limited to perfluorochemicals, efaproxiral and modified haemoglobin products;

(o) thymosin beta;

(p) venoms of any species or derivatives thereof;

(q) synthetic proteins and peptides and synthetic analogues of endogenous proteins and peptides not registered for medical or veterinary use;

(r) anabolic androgenic steroids (other than an anabolic androgenic steroid which is present at or below the relevant concentrations set out in Rule 188A(2));

(s) unregistered bisphosphonates;

(t) zoledronic acid;

(u) metabolites, artifacts and isomers of any of the substances specified in paragraphs (a) to (t);

(3) The substances bufotenine, butorphanol, 3–(2–dimethylaminoethyl)–4–hydroxyindole, N.N–dimethyltryptamine, Ketamine, methadone, morphine, pethidine and quinalbarbitone, and their metabolites, artifacts and isomers are excepted from the provisions of this Rule.

(4) Any person who is in possession of a substance specified in sub-rule (2) or a metabolite, artifact or isomer of such substance is guilty of an offence.

(5) It shall be a defence to a charge under sub-rule (4) for the person in possession of such substance or preparation to prove that the substance or preparation was prescribed to him, for use by him, by a qualified medical practitioner.

(6) Any person who attempts to obtain possession of a substance specified in sub-rule (2) or a metabolite, artifact or isomer of such substance, is guilty of an offence.

Anabolic Steroids

190AA. (1) A horse must not, in any manner, at any time, be administered an anabolic androgenic steroid.

(2) Any person who:

(a) administers an anabolic androgenic steroid;

(b) attempts to administer an anabolic androgenic steroid;

(c) causes an anabolic androgenic steroid to be administered; and/or

(d) is a party to the administration of, or an attempt to administer, an anabolic androgenic steroid,

to a horse is guilty of an offence.

(3) Where the Stewards are satisfied that a horse has, or is likely to have been, administered any anabolic androgenic steroid contrary to this rule, the Stewards may prevent the horse from starting in any relevant race.

(4) When a sample taken at any time from a horse has detected in it an anabolic androgenic steroid the horse is not permitted to start in any race or be used for the purposes of breeding:

(a) for a minimum period of 12 months from the date of the collection of the sample in which an anabolic androgenic steroid was detected; and

(b) only after an Anabolic Androgenic Steroid Clearing Certificate is provided in respect of a sample taken from the horse, such sample having been taken at a date determined by the Stewards.

(5) Any owner, lessee, nominator, trainer and/or person in charge of a horse registered under these Rules must, when directed by the Stewards or other person authorised by the Controlling Body, produce, or otherwise give full access to, the horse so that the Stewards or other person authorised by the Controlling Body may take or cause a sample to be taken and analysed to determine whether any anabolic androgenic steroid is present in the system of the horse.

(6) For the avoidance of doubt and without limitation, sub-rule (5) requires an owner, lessee, nominator and/or trainer to produce the horse, or otherwise give full access to the horse, even if the horse is:

(a) under the care or control of another person; and/or

(b) located at the property of another person.

(7) Any person who fails to produce, or give full access to, a horse to provide a sample as required by sub-rule (5) is guilty of an offence.

(8) In respect of a horse registered under these Rules, where an owner, lessee, nominator, trainer and/or person in charge of a horse is in breach of sub-rule (5), the relevant horse will not be permitted to start in any race:

(a) for a period of not less than 12 months following the day on which the horse is in fact produced to the Stewards, or full access to the horse is otherwise given to the Stewards, so that a sample may be taken and analysed for anabolic androgenic steroids; and

(b) only after an Anabolic Androgenic Steroid Clearing Certificate is provided in respect of a sample taken from the horse, such sample having been taken at a date determined by the Stewards.

…

Evidentiary certificates

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.

(4)  A certificate furnished under this rule which relates to blood, urine, saliva, or other matter or sample or specimen taken from a horse shall be prima facie evidence if sub-rule (1) only applies, and conclusive evidence if both sub-rules (1) and (2) apply, that the prohibited substance was present in or on the horse at the time the blood, urine, saliva, or other matter or sample or specimen was taken from the horse.

(5)  sub-rules (1) and (2) do not preclude the presence of a prohibited substance in or on a horse, or in blood, urine, saliva, or other matter or sample or specimen, or the fact that a prohibited substance had at some time been administered to a horse, being established in other ways.

(6)  sub-rule (3) does not preclude the fact that a horse was presented for a race not free of prohibited substances being established in other ways.

(7)  Notwithstanding the provisions of this rule, certificates do not possess evidentiary value nor establish an offence, where it is proved that the certification procedure or any act or omission forming part of or relevant to the process resulting in the issue of a certificate, was materially flawed.

…

Disqualification

195.  A horse which has been presented for a race shall be disqualified from it if blood, urine, saliva, or other matter or sample or specimen taken from the horse is found to contain a prohibited substance.

…

Horses

…

218. A person having responsibility for the welfare of a horse shall not fail to care for it properly.

…

219. A person shall not do or fail to do anything which results in the inconsistent running of a horse.

…

Penalties

256. (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 or permanently;

(f) a bar, either for a period or permanently, from training or 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 a 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.

Regard to be had to purpose

309. 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.”

HRNSW Stewards’ inquiry

  1. On 13 October 2020, HRNSW stewards conducted an inquiry hearing into the report of the ARFL’s findings. Mr Trevor-Jones pleaded guilty to two charges of contravention of the AHRR.

  2. On 14 October 2020, HRNSW stewards decided, in respect of the first charge, a contravention of AHRR r 190, to disqualify Mr Trevor-Jones for a period of three months. On the second charge, a contravention of AHRR r 190B (relating to maintenance of a logbook), Mr Trevor-Jones was fined $500. In addition, under the provisions of AHRR r 195, I’m All Courage was disqualified from the race in question and, in accordance with AHRR r 190AA(4), the stewards ordered that the horse was not permitted to start in any race or be used for the purposes of breeding for a period of 12 months from 20 April 2020.

Appeal to the Racing Appeals Tribunal

  1. Mr Trevor-Jones originally appealed to the Racing Appeals Tribunal against only the penalty decision of the HRNSW Stewards.

  2. On 11 November 2020, by an amended notice of appeal, Mr Trevor-Jones sought to change his pleas to not guilty and contended in effect that there had been no breach of AHRR r 190(1) or r 190AA(4). The orders sought included that the appeal be allowed, the decisions of the stewards be set aside or, alternatively, no conviction be entered and no penalty imposed. Furthermore, it was sought that there be no consequential orders under AHRR rr 190AA(4) and 195 in respect of the horse, I’m All Courage, and that there be an order for costs.

  3. Mr Trevor-Jones relied in his amended notice of appeal before the Tribunal on three grounds as follows:

“Ground one: re alleged breach of AHRR Rule 190 (1)

(1) the decision was wrong.

Particulars

the decision was not the correct and preferable decision for reasons including:

(i) the substance is alleged to have been found in the horse, trendione … and epitrenbolone …, are part of the prescribed therapeutic substance altrenogest. Altrenogest … is a derivative of the anabolic androgenic steroid trenbolone. … Altrenogest is a synthetic estrane steroid but also a week anabolic androgenic steroid. Altrenogest is not a prohibited substance and is specifically excepted from being a prohibited substance when administered to fillies and mares (AHRR Rule 188 (3)).

(ii) further and alternatively, they are inherent, necessary and unavoidable concomitants of altrenogest.

(iii) alternatively, they are metabolites of altrenogest or otherwise a consequence of the horse being given the therapeutic substance as prescribed.

(iv) further and alternatively, on its true construction and in all the circumstances, Rule 190 (1) has no application to altrenogest and its inherent concomitants or metabolites.

(v) further and alternative, in all the circumstances, there was no breach of the rule.

2. Further and alternative,

(i) a conviction should not have been entered (AHRR Rule 256(6));

(ii) the penalty imposed was too severe.

Ground two: re decision under AHR 190AA(4)(a)

(2) the decision was wrong.

Particulars

(i)-(iv) the same as for ground 1

(v) further and alternative, in all the circumstances AHRR Rule 190AA(4)(a) has no application to the horse Im All Courage.

Ground three: re disqualification of the horse Im All Courage as the winner of race seven at Bathurst on 20 April 2020 pursuant to AHRR Rule 195

Particulars

(i)-(iv) the same as for ground one

(v) further and alternative, on its true construction and in all the circumstances, AHRR Rule 195 had no application to the horse Im All Courage with respect to race seven at Bathurst on 20 April 2020.”

  1. Mr Trevor-Jones’s written submissions before the Tribunal raised a further argument that the certificates of testing results in the present case were not prima facie or conclusive evidence by operation of AHRR r 191, because there was a material flaw, within r 191(7), in the process and procedure of certification. The material flaw relied upon was identified by the Tribunal, at [10] of its reasons, in the following terms:

“(a) the certificates omitted a critical laboratory finding by the first laboratory ARFL that the substances detected were detected in the presence of altrenogest

(b) the certificates issued omitted a critical laboratory finding by the first laboratory ARFL that the substances detected were detected in the presence of altrenogest in multiple magnitudes higher than its deconjugate parts and that part’s isomer and metabolite.

(c) when the confirmatory certificate was requested, it was omitted to ask that laboratory to confirm the presence of altrenogest, therefore its testing and certification omitted relevant, important and critical information from the second certificate also.”

  1. From Mr Trevor-Jones’s grounds it can be seen that he appealed in relation to both the breach of the AHRR and the penalty. The Tribunal dealt with the issue of breach separately from the issue of penalty.

The Tribunal’s decision on breach

  1. In its reasons of 22 December 2023, after recording at some length the evidence and the parties’ submissions, the Tribunal set out what it described as “key facts”. These and other factual findings by the Tribunal have been incorporated into the background and factual circumstances earlier in this judgment.

The material flaw argument

  1. The Tribunal dealt first with the material flaw argument in relation to the certificates. It was held that the rules concerning evidentiary certificates were written so as to mandate the reporting of the detection of prohibited substances and the Tribunal rejected the submission that as altrenogest (a permitted substance) was in fact found in the sample it should have been reported in the certificate. Therefore, the certificates were found not to be incomplete.

  1. Furthermore, the Tribunal held that, in only certifying the presence of prohibited substances and not a permitted substance, such as altrenogest, the laboratories were not engaging in construction of the AHRR, but were merely having regard to what the AHRR provided were prohibited substances and then determining from their testing processes whether a substance detected fell within those rules. Any subsequent rejection of a certificate because there was an erroneous determination that a substance was a prohibited substance was held to be a matter for the Stewards.

  2. The Tribunal concluded that there was no material flaw within AHRR r 191(7) in the present case. As a result, the certificates provided conclusive evidence of the presence of prohibited substances, by virtue of AHRR r 191.

The necessary concomitants grounds

  1. Grounds 1, 2 and 3 relied upon by Mr Trevor-Jones in the Tribunal all effectively turned upon: (a) the fact that AHRR r 188A(3) exempted altrenogest from being a prohibited substance; and (b) the contention that epitrenbolone and trendione were inherent, necessary and unavoidable concomitants or metabolites of, or otherwise a consequence of a horse being given, altrenogest as prescribed.

  2. The Tribunal rejected the submission that construing the reference to “altrenogest” in r 188A(3) as not including epitrenbolone and trendione would leave r 188A(3) with no work to do and would make the administration of altrenogest to fillies and mares impossible. The Tribunal’s reasoning, apparently in relation to rr 190(1) and 190AA(4), was that the mischief was not the use of altrenogest but its use in conjunction with presentation to race. It was said that if a horse was not to race, then a trainer had nothing to fear from the use of altrenogest but, if the horse was to race, then the trainer was on notice of the possibility of prohibited substances being detected. Furthermore, it was said that, having regard to the rare detection of the prohibited substance for fillies and mares that had been administered altrenogest and raced, that was an issue for penalty and not whether the relevant rule had been breached.

  3. The Tribunal accepted that it should apply a purposive construction of the rules, as specifically required by r 309, noting that the rules as a whole mandated welfare and integrity. After observing that there were no extrinsic materials in evidence and that it did not derive great assistance from considering the way in which r 188A(3) was introduced and the change in the science, the Tribunal held that the rules could be given their plain and ordinary meaning “to give purpose and effect on the basis of integrity”. The Tribunal then reasoned that it was not permissible to have a prohibited substance present in trace levels because that was not provided for in the rules. It was then said that Mr Trevor-Jones’s argument in effect reduced to whether epitrenbolone and trendione could not be separated from altrenogest and, if this were so, they should be caught by the exemption for altrenogest in r 188A(3).

  4. As to the factual issue of whether epitrenbolone and trendione could not be separated from altrenogest, the Tribunal found that those two substances were not allyl-trenbolone or altrenogest but distinct substances, although related to altrenogest by being a by-product or a constituent part. In addition, the Tribunal specifically rejected that either epitrenbolone or trendione was a metabolite of altrenogest, finding that only trendione was a metabolite and that it was a metabolite of trenbolone and epitrenbolone but not of altrenogest.

  5. In these circumstances, it was held in effect that the rule which defined prohibited substances should be construed as capturing epitrenbolone and trendione but, where those two substances were absent, there was an exemption for altrenogest. In particular, the Tribunal was not persuaded that the exemption for altrenogest in r 188A(3) had the practical effect of exempting the constituent parts of the product “on the facts and circumstances of the present case”.

  6. On these bases, the appeal in relation to breach was dismissed and the Tribunal held that it was then necessary for it to determine the aspect of the appeal dealing with the severity of the penalty.

The Tribunal’s decision on penalty

  1. On 6 March 2023, the Tribunal dismissed the appeal in so far as it related to the severity of the sentence of disqualification of Mr Trevor-Jones as a trainer for three months for breach of AHRR r 190. The Tribunal’s findings upon which its conclusion as to penalty was based included:

“8. [Mr Trevor-Jones], acting in good faith and in consultation with his veterinarian, based upon the behavioural characteristics of the subject mare, received a prescription from Dr Corones for the drug altrenogest. That drug is a therapeutic drug designed to improve behavioural issues in mares. It was effective with this particular horse.

9. It is administered for the beneficial running of a stable by removing the dangerous characteristics of mares and, incidentally, not subject to the facts in this case, assisting in breeding purposes, to provide safety to trainers, track drivers, handlers and the like, but, importantly, when a horse is presented to race, it provides protection to other horses participating as well as drivers and others, such as attendants. It is, therefore, that a legitimate and beneficial product was administered to the horse. There was nothing nefarious about it.

…

15. Of course, the message is also on the basis that the administration of altrenogest is specifically permitted, but the problem is one of the subsequent presentation to race.”

  1. It does not appear that other aspects of the Stewards’ orders were challenged on appeal by Mr Trevor-Jones.

Judicial Review application

As noted above, by its summons filed on 5 June 2023, the plaintiffs have sought an order in the nature of certiorari quashing the decisions made on 23 December 2022 and 6 March 2023 by the Tribunal as well as other consequential orders.

Grounds

The grounds of review were formulated as follows, including ground 1(a1) which the plaintiffs were given leave to add during the hearing:

“1. The decision of the Racing Appeals Tribunal is vitiated by jurisdictional error and, alternatively, or error of law on the face of the record … in that the Tribunal

a. erred in construing the effect of AHRR rule 188A(3) on the application of rules 188A(1), 190(1), 190AA(1) and 190AA(4), 191 and 195 in that the Tribunal should have found that trace amounts of epitrenbolone or trendione are not prohibited substances within the meaning of rule 190(1) and 190(2) and not an anabolic androgenic steroid within the meaning of rule 190AA(4) when their presence is due to the administration of altrenogest to a mare within the meaning of rule 188A(3).

a1. The Tribunal in its reasons on breach and reasons on penalty used the word ‘altrenogest’ in two technical senses in various parts of the reasons those meanings being

(a) the precise chemical compound; and

(b) the therapeutic product (a formulation medication administered to the horse)

The Tribunal erred in law by

(i) failing to carry through its findings as to meaning (implicit from its usage) to its conclusions – error of law on the face of the record.

(ii) failed to articulate by giving any or sufficient reasons what was the ‘plain and ordinary meaning’ that the Tribunal accepted if it was different from the two meanings used by the Tribunal JB [283]

(iii) if it intended to adopt only meaning (a) gave no reasons for doing so

(iv) on its true construction, r 188A(3) comprehends both meanings (a) + (b) and does not exclude meaning (b).

b. misdirected itself as to the question to be determined being whether the detected substances cannot be separated from altrenogest in a laboratory test (J 23/12/22 [287]).

c. erred by failing to apply AHRR rule 309 to the interpretation of rules 188A, 190, 191, 195 and 190AA so as to facilitate and extend the application of rule 188A(3) in its exemption of altrenogest to promote the purpose or object underlying that rule.

d. gave reasons for its decision that were inconsistent on its face being that a trainer was permitted to administer altrenogest to a mare and ‘has nothing to fear’ ‘if a horse is not to race’ (J 23/12/22 [273]) but such administration would cause the condition of the horse to be in breach of the rules on the Tribunal’s construction.

e. the Tribunal erred in finding there was no material flaw in the laboratory certificates under AHRR rule 191(7) and that the certificates were conclusive evidence that the horse was presented to race not free from prohibited substances (J23/12/23 [257] – [259]) in that the Tribunal should have found the certificates

i. did not certify the presence of prohibited substances;

ii. were defective in that they did not contain material information in that they did not refer to the detection of altrenogest which the Tribunal accepted was detected.

2. Alternatively, to the extent that AHRR rules 188A(1), 190(1), 190(2), 190A and 190AA conflict with rule 188A(3) in that rule 188A(3) exempts from prohibition the administration of altrenogest (allyl trenbolone) to fillies and mares and if rules 188A(1), 190(1), 190(2), 190A and 190AA prohibited the administration or presence in the horse of commercially available veterinary pharmaceutical preparations of altrenogest (allyl trenbolone) approved by the Australian Pesticides and Veterinary Medicines Authority, those rules are invalid for uncertainty.”

  1. There was no challenge to the validity of the making of any of the relevant rules of the AHRR in the present case. Nor was there any other challenge to their validity apart from what was raised under ground of review 2.

  2. It can be noted here that it was not in dispute that the present proceedings were judicial review proceedings. Notwithstanding this, at times, I had the impression that the plaintiffs’ submissions tended to be couched in terms that would have been more appropriate for merits review or an appeal by way of rehearing rather than a judicial review application. From time to time, it was submitted that the Court should make findings of fact, not related to whether there was some jurisdictional error, but rather concerning particular factual circumstances of the case including, for example, the use or manufacture of altrenogest. As I understood it, the plaintiffs in effect contended that the Racing Appeals Tribunal could or should have made these findings or this Court should make the relevant findings. Given the nature of the present proceedings, I did not accept that it was appropriate or necessary for me to make factual findings in relation to such matters or to approach this matter as if the Court were conducting merits review of the Tribunal’s decisions.

  3. I shall address in turn each of the grounds of review as formulated in the summons.

Ground 1(a)

  1. The error of law or jurisdictional error under ground 1(a) was said to arise out of the contention that trace amounts of epitrenbolone or trendione are not “prohibited substances” within the meaning of r 190(1) and (2) and are not “anabolic androgenic steroids” within the meaning of r 190AA(4), when their presence is due to the administration of altrenogest to a mare or filly, as permitted by r 188A(3).

  2. In substance the plaintiffs submitted that this contention followed from:

  1. the fact that the Tribunal had found that epitrenbolone and trendione could not be eliminated from the manufacture of the exempted veterinary pharmaceutical product, altrenogest; and

  2. the fact that the exception for altrenogest in r 188A(3) was not only for the substance itself and not only for the substance when found in fillies and mares, but for the substance “when administered to fillies and mares”.

  1. Thus, it was said that the exception in r 188A(3) carried with it a permission to use altrenogest by way of a registered veterinary pharmaceutical product (including any substances which were necessarily included in that pharmaceutical product), because that is the only way in which altrenogest could be properly administered. It was submitted that, were it construed otherwise, it would lead to an absurd and untenable result where the administration of altrenogest to fillies and mares was permitted but some things that could not be eliminated in the manufacturing process of altrenogest were prohibited.

  2. There are a number of reasons why the plaintiffs’ submissions in relation to ground 1(a) should not be accepted.

  3. First, the plaintiffs’ contention was not that the words “altrenogest when administered to fillies and mares” in r 188A(3) should be construed as exempting every chemical compound, which would otherwise be a prohibited product or an AAS, contained in the pharmaceutical product by which altrenogest was administered. Rather, the submission was that this exemption should be construed as including within the exemption the AASs, epitrenbolone and trendione, because the Tribunal had found that those chemical compounds could not be eliminated from the manufacture of altrenogest. If r 188A(3) was not so construed in these circumstances, it was submitted the exemption for altrenogest would have no work to do.

  4. On my understanding of the Tribunal’s reasons, however, there was no finding that epitrenbolone and trendione could not be eliminated from the manufacture of altrenogest such that those two AASs were necessarily or always present when altrenogest was administered to filles and mares as permitted by r 188A(3). As explained in [14]-[15] above, the Tribunal’s relevant findings were to the effect that even though, during stage three of the manufacturing process for altrenogest, trendione and epitrenbolone were present in trace amounts, they were not unavoidable concomitants of altrenogest and were not necessarily present in the final product. These findings were also consistent with the fact that, over the approximately 20 years that altrenogest has been administered with considerable frequency for harness racing horses to suppress oestrus behaviour, trendione and epitrenbolone have only been detected in samples from such horses treated with altrenogest on three occasions and it was not known why this occurred.

  5. Accordingly, the factual premise for the plaintiffs’ argument under this ground of review was not made out. In the circumstances as found by the Tribunal, the exemption for altrenogest will have work to do in that altrenogest may be administered to fillies and mares without being a prohibited substance. The fact that there may be a risk, rather than a certainty, of epitrenbolone or trendione being detected in a sample taken from a filly or mare to which altrenogest has been administered does not deprive the exemption of relevant operation.

  6. In addition, and even if the Tribunal had made the finding on which the plaintiffs relied, there is a fundamental difficulty with construing a provision of the AHRR by reference to factual circumstances which were not known and not part of the mischief to be addressed by the rule, when it was introduced.

  7. For these reasons, in my view, the construction of the exemption for altrenogest in r 188A(3) for which the plaintiffs contended should not be accepted.

  8. Secondly, the construction of the words “altrenogest when administered to fillies and mares” in r 188A(3) as including epitrenbolone and trendione should also be rejected on the proper construction of r 188A.

  9. The appropriate approach to the construction of delegated legislation, such as the AHRR, involves examination of the text, context and purpose of the rule, discernment of relevant constructional choices, if they exist, and determination of the construction that, according to established rules of interpretation, best serves the statutory purpose: ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18 at [28] (French CJ, Crennan, Kiefel and Keane JJ).

  10. The background and validity of the AHRR has been addressed by the Court of Appeal in Day v Sanders; Day v Harness Racing New South Wales (2015) 90 NSWLR 764; [2015] NSWCA 324 but nothing of particular significance to the present case was said to turn upon those matters and it is not necessary to consider them further.

  11. The provisions of r 188A identify what substances are “prohibited substances” generally for the purposes of the AHRR. This is done in various ways.

  1. Some prohibited substances are identified by their capability of causing an action or effect on specified mammalian body systems, such as the nervous system or the endocrine system: r 188A(1)(a).

  2. Some prohibited substances are identified by their agency or type, described as “substances falling within, but not limited to, the following categories” such as acidifying agents, alcohols, anabolic agents, tranquilisers or vitamins administered by injection: r 188A(1)(b).

  3. Some are identified by reference to their relationship with other prohibited substances, such as metabolites, artifacts and isomers of other substances prohibited under r 188A(1)(a) or (b): r 188A(1)(c).

  4. Prohibited substances also include endogenous substances where their concentration is, in the opinion of the Stewards, unusual or abnormal: r 188A(d).

  1. The identification of “prohibited substances” generally for the purposes of the AHRR in r 188A is, however, expressly qualified in two ways.

  1. Specified substances to which r 188A(1) would otherwise apply are exempted from the application of that rule when present at or below specified levels, such as 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: r 188A(2).

  2. Some substances which would otherwise be prohibited substances are expressly stated not to be prohibited substances, such as ambroxol, orally administered glugcosamine and altrenogest when administered to fillies and mares: r 188A(3).

  1. The text, scope and purpose of r 188A indicate that, by whatever means the “prohibited substances” are identified in that rule for the general purposes of the AHRR, it is their potential effect on a horse which gives rise to their being prohibited for use on, or administration to, a “horse” as defined in the dictionary to the AHRR. That effect results from the chemical composition of the prohibited substance in question, including where relevant metabolites, artifacts and isomers of that substance, and not the specific pharmaceutical product used. Similarly, where a chemical compound is expressly exempted from being a prohibited product, it is the absence of relevant detrimental effects from the chemical compound, for example because of the low concentration, or its beneficial effects, which justifies the exemption, not the particular pharmaceutical product used. This consideration suggests that the provisions of r 188A relating to which substances are prohibited and which are exempted should be construed as referring to the chemical compounds which fall within the various provisions, and not to particular pharmaceutical products containing those chemical compounds.

  2. A further consideration which supports this approach is that pharmaceutical products containing a chemical compound will often contain other chemical compounds depending on factors such as the method of manufacture which is used or the chemical delivery mechanism which is relied on. There is an inherent uncertainty as to what additional chemical compounds might be included from time to time in a pharmaceutical product by which an exempted chemical compound may be administered. Some of these additional chemical compounds may be prohibited substances. Thus, if prohibited and exempted substances were identified by reference to pharmaceutical products rather than chemical compounds, it would introduce a degree of potential uncertainty which is inconsistent with the effective implementation of rules designed, inter alia, to protect and promote welfare and integrity in harness racing. Furthermore, such an approach is not justified by the text of r 188A, read in context and having regard to the scope and purpose of the rules as a whole.

  1. In my view, the preferable construction of the provisions of r 188A which identify prohibited and exempted substances is that, when a particular chemical compound is identified, the words refer to the relevant chemical compound and not to the pharmaceutical products by which those chemical products might be administered from time to time. In particular, in relation to “altrenogest when administered to fillies and mares” as an exempted substance, these words refer to the chemical compound altrenogest, when so administered, but do not extend to other chemical compounds included in a pharmaceutical product by which the altrenogest might be administered so that those other chemical compounds are also exempted, if they are otherwise prohibited substances.

  2. This construction of r 188A is consistent with the construction adopted in Day v Harness Racing New South Wales (2014) 88 NSWLR 594; [2014] NSWCA 423, although the Court of Appeal in that case was addressing different issues and was not required to consider the construction of the particular words “altrenogest when administered to fillies and mares” in r 188A(3).

  3. In addition, further context for r 188A is provided by other rules which separately identify “prohibited substances” for the purposes of r 190A and other substances which are also in effect prohibited, namely AASs, for the purposes of r 190AA.

  4. “Prohibited substances” for the purposes of “out of competition testing” under r 190A(1) are listed in r 190A(2). These s 190A “prohibited substances” are not the same as, or identified in the same way as, the “prohibited substances” under r 188A. The s 190A prohibited substances are listed in pars (a) to (u) of r 190A(2), and are identified by: agency or effect, such as haematopoiesis – stimulating agents; types of substance, such as insulins or venoms; chemical compounds, such as zoledronic acid; and, metabolites, artifacts and isomers of any of the substances identified in r 190A(2)(a) to (t). Also for the purposes of r 190A, certain substances are expressly exempted from being r 190A prohibited substances by operation of r 190A(3), which provides:

“(3) The substances bufotenine, butorphanol, 3–(2–dimethylaminoethyl)–4–hydroxyindole, N.N–dimethyltryptamine, Ketamine, methadone, morphine, pethidine and quinalbarbitone, and their metabolites, artifacts and isomers are excepted from the provisions of this Rule.”

  1. In relation to r 190A, it is significant for present purposes that there is no exemption in r 190A(3) for altrenogest, or epitrenbolone and trendione. In addition, r 190A(2)(r) has the effect that AASs other than those present at or below the relevant concentrations set out in r 188A(2) are r 190A prohibited substances. Epitrenbolone and trendione are AASs which are not named in r 188A(2). In these circumstances, it appears that the intent of the AHRR was that epitrenbolone and trendione should be r 190A prohibited substances, without regard to how they came to be present in a sample referred to in r 190A(1).

  2. Independently of the rules relating to “prohibited substances” generally and “prohibited substances” for the purposes of r 190A, r 190AA(1) expressly prohibits the administration of AASs to a horse in any manner and at any time. In addition, under r 190AA(4) when a sample taken at any time from a horse has an AAS detected in it, the horse is not permitted to start in any race or be used for the purposes of breeding during the period identified in that subrule. The only exceptions to the prohibitions in relation to AASs in r 190AA are for those AASs identified in r 188A(2) at or below the levels set out in that subrule. The follows from the express wording of the chapeau to r 188A(2) which states “[t]he following substances when present at or below the levels set out are excepted from the provisions of … Rule 190AA”. Epitrenbolone and trendione are not included in the exempted substances in r 188A(2).

  3. The terms of these rr 190A and 190AA, which provide context for r 188A, indicate that the substances prohibited and the AASs prohibited refer generally to chemical compounds which have relevant effects and not to pharmaceutical products, which potentially contain a variety of chemical compounds.

  4. Furthermore, the absence of any express exemption for epitrenbolone and trendione from the r 190A prohibited substances and from the AASs to which r 190AA applies is a further indication that s 188A(3) should not be construed, as the plaintiffs submitted, so as to exempt epitrenbolone and trendione from the operation of r 190A or 190AA whether present as a result of the administration of altrenogest or otherwise. In other words, while altrenogest administered to fillies and mares is exempted from the definition of prohibited substances under r 188A, that exemption should not be construed as operating in relation to different chemical compounds, epitrenbolone and trendione, for the purposes of the independent identification of prohibited substances for the purposes of r 190A or the exemption of AASs for the purposes of r 190AA.

  5. In these circumstances, it should not be accepted that the proper construction of r 188A(3) in context involves the exemption of altrenogest from being a prohibited substance when administered to fillies and mares also impliedly exempts epitrenbolone and trendione, when present as a result of the administration of altrenogest, for the purpose of the identification of prohibited substance within r 188A.

  6. Thirdly, the plaintiffs’ construction of the words “altrenogest when administered to fillies and mares” was contended not only to effect an exemption for epitrenbolone and trendione from being “prohibited substances” as referred to in r 188A but also from their being AASs falling within r 190A(2)(r) and AASs to which r 190AA(1) and (2) apply. In that regard, the wording of the exemption in r 188A(3) only refers to “altrenogest when administered to fillies and mares” as not being a prohibited substance, it does not state that epitrenbolone or trendione is not to be treated as a relevant AAS for the purposes of r 190A(2)(r) or r 190AA. Furthermore, where r 188A was intended to have such an effect in respect of the AASs referred to in other rules, r 188A(2) made that exemption express – the chapeau to r 188A(2) included “[t]he following substances when present at or below the levels set out are excepted from the provisions of … Rule 190AA”. There was no similar wording extending the operation of the exemption in r 188A(3) in respect of altrenogest to other rules such as rr 190A and 190AA. Similarly, where AASs were not intended to fall within the description of prohibited substances for the purposes of r 190A, this was expressly stated in r 190A(2)(r). The absence of such express exemptions for epitrenbolone or trendione provides textual confirmation that the exemption provided by r 188A(3) in respect of altrenogest when administered to fillies and mares was not intended to extend to AASs such as epitrenbolone and trendione for the purposes of r 190A(2)(r) or r 190AA.

  7. Furthermore, in so far as it was argued that the reference to “altrenogest” should be construed as including epitrenbolone and trendione as “transformational products” produced during the manufacturing process, which might remain in the pharmaceutical product by which the altrenogest was to be administered, and as such those two substances were also exempted, I would not accept that submission. There is no foundation in the text of r 188A(3) for such a construction. Nor, as explained above, is there any support in the context provided by rr 190A and 190AA for exempting AASs such as epitrenbolone and trendione from the operation of those rules, in addition, to r 188A. Furthermore, the context provided by rr 188A, 190A and 190AA includes other provisions which use the collocation “metabolites, artifacts and isomers” of certain substances. This indicates that if it was intended to include not only the chemical compound, altrenogest, but also its transformational products or artifacts or similar chemical compounds, this could readily have been made clear by using those or similar words.

  8. Finally, the plaintiffs’ contention was that the construction of the words “altrenogest when administered to fillies and mares” should be construed as including “trace amounts of epitrenbolone or trendione” but not other amounts. There was no specific identification of what concentration would constitute a “trace amount” for this purpose. By way of contrast, r 188A(2) expressly stated concentrations at or below which the specified chemical compounds would not fall within the operation of the relevant rules. If it had been intended to exempt “trace amounts” of epitrenbolone and trendione, the relevant concentration could readily have been specified, as was done in respect of other chemical compounds in r 188A(2). In relation to this submission, it appeared that it was not directed so much to the proper construction of the text of r 188A(3) but rather sought to achieve, in effect, an amendment to that provision to make it consistent with the plaintiffs’ factual contention that altrenogest could not generally be administered to a filly or mare without trace amounts of epitrenbolone and trendione also being present.

  9. For all these reasons, in my view, the Tribunal did not err in law by construing r 188A(3) as not exempting epitrenbolone or trendione (whether in trace amounts or otherwise) from being “prohibited substances” for the purposes of rr 188A and 190. Moreover, there was no error in construing r 190A or r 190AA, together with r 188A, as not exempting epitrenbolone or trendione from being “prohibited substances” for the purposes of r 190A or AASs to which r 190AA applied. Thus, there was no error of law on the face of the record or jurisdictional error as contended under ground 1(a) and that ground has not been made out.

Ground 1(a1)

Ground 1(a1) involved the contentions that:

  1. the Tribunal used the word “altrenogest” in two technical senses: the precise chemical compound; and, the therapeutic or pharmaceutical product by which that compound was administered to the horse;

  2. in these circumstances, the Tribunal erred in law by:

  1. failing to “carry through” its implicit findings as to meaning in its conclusions;

  2. failing to give any or sufficient reasons to explain “the plain and ordinary meaning” that the Tribunal accepted if it was different from those two meanings or it was only the precise chemical compound meaning; and

  3. failing to find on the true construction of r 188A(3) that it referred to both meanings of altrenogest.

This ground 1(a1) raised a number of issues that overlapped with ground 1(a) and it is unnecessary to repeat the relevant parts of the reasoning in relation to ground 1(a) set out above.

The foundational proposition upon which ground 1(a1) was based was that the Tribunal used the word “altrenogest” with two meanings. On my reading of the Tribunal’s reasons, this does not appear to be the case. At D[232], the Tribunal referred to “altrenogest”, as well as to “epitrenbolone” and “trendione”, as being detected by the laboratories in the samples taken from the horse in question. This was beyond doubt a reference to those precise chemical compounds and not to pharmaceutical products by which altrenogest (or the other chemical compounds) were administered. This usage of “altrenogest” was continued in subsequent paragraphs of the Tribunal’s reasons, D[235] to D[245], where the chemical composition and nature of altrenogest were discussed. Similarly, in considering whether “altrenogest” included epitrenbolone or trendione as “transformation products”, the Tribunal referred to the “use” or “administration” of altrenogest. While it can be accepted that altrenogest can only be relevantly used or administered by way of a veterinary pharmaceutical product containing altrenogest, it does not follow that the word “altrenogest” in that context was being used to mean the pharmaceutical product rather than the chemical compound. Indeed, the pharmaceutical products by which altrenogest may be administered were elsewhere identified in the reasons as “Readyserve” and “Regumate”.

Moreover, the reference to altrenogest being “the manufactured product”, at D[292], is to be understood, in the context of the reasons as a whole, as a reference to the chemical compound altrenogest, which is produced by the manufacturing process being considered, not the particular veterinary pharmaceutical product by which it might be administered to horses, such as “Readyserve” or “Regumate”.

Accordingly, I do not accept that the Tribunal used the word “altrenogest” with two distinct meanings. Nor do I accept that the Tribunal failed to give any or adequate reasons as to which meaning it was using when it held in effect that on the proper construction of r 188A(3) the word “altrenogest” should be given its “plain and ordinary meaning”. Consistently with the rest of the Tribunal’s reasons, the reference to the “plain and ordinary meaning” of the relevant words was clearly a reference to the chemical compound altrenogest or allyl-trenbolone and not to any pharmaceutical product by which that chemical compound might be administered to fillies or mares. By referring to the “plain and ordinary meaning”, the Tribunal was also indicating that, in its view, it was not appropriate to construe the exception for “altrenogest when administered to fillies and mares” in r 188A(3) as including epitrenbolone and trendione when those chemical compounds were not specifically mentioned or necessarily included, in any relevant sense, in the chemical compound altrenogest. There was no error of law on the part of the Tribunal in so doing. Nor was there any jurisdictional error.

For these reasons, I reject ground 1(a1).

Ground 1(b)

  1. Ground 1(b) involved the contention that the Tribunal misdirected itself, at D[287] of its reasons, by identifying the question to be determined as being whether the detected substances could not be separated from altrenogest in a laboratory test.

In my view, this ground of review should be rejected as it mischaracterises the question actually addressed by the Tribunal. The Tribunal’s identification of the relevant issue or question occurred in the context of the Tribunal’s conclusion to the effect that the exemption for altrenogest when administered to fillies and mares in r 188A(3) should be construed as referring to the chemical compound altrenogest and not to other chemical compounds, even at trace levels which might accompany altrenogest: see D[283] and D[286]. It was then said, in light of the way in which the issues were framed by the parties before the Tribunal and the Tribunal’s factual findings:

“287. That then reduces this case on [Mr Trevor-Jones’s] side to the question whether the detected substances cannot be separated from altrenogest. If that is the case, then it is [his] argument that they should be caught by the exemption.”

  1. The Tribunal did not identify the issue as whether epitrenbolone and trendione could be separated from altrenogest “in a laboratory test”. Rather, the issue identified by the Tribunal was whether epitrenbolone and trendione could not be separated from altrenogest so that the reference to “altrenogest” in r 188A(3) must necessarily have included those two substances. For the reasons given by the Tribunal at D[288] to D[300], it was effectively concluded as a factual matter that epitrenbolone and trendione were separate and distinct chemical compounds from altrenogest, and that they could be separated from altrenogest. The fact that altrenogest was allyl-trenbolone was found not to have the consequence that the chemical compound altrenogest and the chemical compound trenbolone were not separate and distinct chemical compounds. Furthermore, as explained above, the Tribunal did not find that altrenogest could not be commercially manufactured without epitrenbolone and trendione being present in the final product. On these bases, the Tribunal in substance concluded that the use of the word “altrenogest” in r 188A(3) was not intended to, and did not, include epitrenbolone and trendione, as Mr Trevor-Jones had effectively contended.

  2. Given the issues as framed by the parties to the proceedings in the Tribunal and in light of the findings and reasons of the Tribunal, I do not accept that the Tribunal misdirected itself by misidentifying the question to be determined, as contended under ground 1(b). Thus, there was no jurisdictional error or error of law on the face of the record. Accordingly, this ground of review should be rejected.

Ground 1(c)

  1. Ground 1(c) involved the contention that the Tribunal erred by failing to apply AHRR r 309 to the interpretation of the relevant rules so as to extend the application of the exemption of altrenogest in r 188A(3) to include epitrenbolone and trendione to promote the purpose or object underlying that rule.

  2. Rule 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.”

  1. As the plaintiffs’ submissions acknowledged, the Tribunal did expressly refer to r 309 in its reasons at D[276]. In doing so, the Tribunal also identified the purposes or objects of the exemption for altrenogest when administered to fillies and mares in r 188A(3) as being “welfare and integrity”. The Tribunal also made specific findings as to the need to regulate the oestrus behaviour in mares and fillies in order to protect and promote the safety and welfare of the subject mare or filly, other horses and anyone who handles or is in near proximity to the subject horse and the use of altrenogest to do so.

  2. What the Tribunal did not accept was that altrenogest could not be administered without epitrenbolone and trendione being present in the pharmaceutical product containing the altrenogest. In those circumstances, the welfare benefit of administering altrenogest to fillies and mares did not require the exemption in r 188A(3) to be construed as extending to the distinct chemical compounds, epitrenbolone and trendione. Moreover, the purpose of maintaining the integrity of harness racing was a relevant consideration in concluding that the exemption of altrenogest should not be construed broadly to include AASs such as epitrenbolone and trendione, even at trace levels, for the purposes of both the general definition of “prohibited substances” in r 188A and the definition of “prohibited substances” for the purposes of r 190A or AASs to which r 190AA applied. The Tribunal’s reasoning in this regard was set out at D[283] to D[302]. No error of law or jurisdictional error was identified in that reasoning.

  3. For these reasons, I do not accept that the Tribunal erred by failing to apply AHRR r 309. Thus, there was no error of law on the face of the record. Nor was there any jurisdictional error, as contended under ground 1(c).

Ground 1(d)

  1. Ground 1(d) was formulated as involving the Tribunal giving “inconsistent reasons” in that it said, at D[273], that a trainer was permitted to administer altrenogest to a mare and “has nothing to fear” “if a horse is not to race” when such administration would cause the condition of the horse to be in breach of the AHRR on the Tribunal’s construction.

  2. The plaintiffs submitted that the Tribunal’s statement at D[273] was plainly wrong and overlooked the effects of r 190A(1) and (2)(r) as well as r 190AA(1), (3) and (4). It was then submitted that:

“… the effect of rr 190A(1) and [(]2)(r) and 190AA(1), (3) and (4) … on the Tribunal’s narrow interpretation of r 188A(3) [so as not to exempt epitrenbolone or trendione], would mean that altrenogest could never be administered as to do so would be in breach of those rules because the detection of its major components or [transformation products] at any time, whether on race-day sampling or at any time, would be in breach of the rules. Even without such detection, it follows from the Tribunal’s findings that such traces must always be present even if below the level of detection by current technology and, on the Tribunal’s narrow construction of r 188A(3), administration of an altrenogest medicine would therefore be in breach of, at least, rules 190AA(1) and (3) and r 239A.”

  1. Once again, this ground of review was based partly on the plaintiffs’ contention that the Tribunal found as a matter of fact that epitrenbolone and trendione could not be eliminated from the manufacture of altrenogest so that those two chemical compounds were necessarily or always present, when altrenogest was administered to filles and mares, as permitted by r 188A(3). As explained above, this was not the Tribunal’s relevant finding. The Tribunal actually found that although, during stage three of the manufacturing process for altrenogest, trendione and epitrenbolone were present in trace amounts, they were not unavoidable concomitants of altrenogest and were not necessarily present in the final product. Accordingly, the factual foundation for the plaintiffs’ ground of review was not made out in this instance.

  2. Nonetheless, on the factual findings made by the Tribunal, it was apparent that if altrenogest was administered to a filly or mare there would be a risk that amounts of epitrenbolone and trendione might be detected in urine samples taken from the horse in question. This was, in effect, confirmed by the notices issued from 2018 to the effect that products containing altrenogest may contain “levels of trenbolone and trendione which are banned substances with extended detection times … Until further notice, trainers and veterinarians are advised to IMMEDIATELY STOP the use of products that contain Altrenogest”.

  3. The Tribunal’s statement at D[273] was:

“The mischief is not the use of altrenogest but its use in conjunction with presentation to race. That is, if a horse is not to race, then the trainer has nothing to fear. If a horse is to race, then the trainer is on notice of the possibility of prohibited substances being detected. The decision to race with a horse administered altrenogest is a matter for the trainer.”

  1. While this statement reflected the operation of r 190 concerning presentation for racing free of “prohibited substances” as identified in r 188A and construed by the Tribunal, it did not take into account:

  1. the effect of the different definition of “prohibited substances” in r 190A in relation to “out of competition testing” or samples “taken at any time from a horse being trained or cared for by a licensed person” which included AASs in r 190A(2)(r) and did not purport to exclude epitrenbolone or trendione; or

  2. the effect of r 190AA(4) which established that if a sample taken at any time from a horse had an AAS detected in it (other than one of those identified in r 188A(2) at or below the relevant concentration in that subrule, which did not include epitrenbolone or trendione) the horse was not permitted to start in any race or be used for the purposes of breeding for a minimum of 12 months from the date of collection of the sample. [2]

    2. It can be noted that the prohibition on administration of AASs under r 190AA(1) and (2) was not relevant in the present case as the Tribunal expressly found that the horse in question was not administered epitrenbolone or trendione.

  1. Taking those two additional matters into account, it could be concluded that it was not correct to say that “if a horse is not to race, then the trainer has nothing to fear” from the use of altrenogest with the risk of detection of epitrenbolone or trendione in a sample taken from the horse “at any time”. In that sense, it appeared to me that the Tribunal’s statement in D[273] was wrong. It may be, however, that the Tribunal’s comments were intended to be limited to consideration of the effect of only r 190 and was not intended to cover the operation of r 190A or r 190AA, which depended on a different identification of what substances were prohibited or were AASs, in relation to which the exemptions in r 188A(3) including that for altrenogest were not engaged.

  2. Further and in any event, in my view, even if there were an error by the Tribunal, it did not have any significance if the Tribunal’s construction was correct that the exemption in r 188A(3) for “altrenogest when administered to fillies and mares” did not extend to include epitrenbolone or trendione and did not modify the different definition of “prohibited substances” in r 190A(2) for the purposes of r 190A(1) or the identification of exempted AASs for the purposes of r 190AA expressly effected by r 188A(2). For the reasons given above, particularly in relation to ground 1(a), in my view, the Tribunal’s construction of the relevant provisions did not involve any error.

  3. Accordingly, even if there were an error of law on the face of the record as the plaintiffs’ contended under this ground of review, it did not materially affect the decisions made by the Tribunal. Nor was there any material jurisdictional error.

  4. In all the circumstances, I reject ground of review 1(d).

Ground 1(e)

  1. Ground 1(e) concerned the laboratory certificates which identified the presence of epitrenbolone and trendione as prohibited substances found in the urine sample taken from the horse, I’m All Courage. The plaintiffs contended in effect that the Tribunal erred in law in concluding that there was no material flaw in the certificates. There was said to be such an error on the face of the record because:

  1. the certificates did not certify the presence of “prohibited substances”; or

  2. they did not contain material information in that they did not refer to the detection of altrenogest in the sample.

  1. AHRR r 191 establishes a regime which facilitates proof of the presence of prohibited substances in samples or specimens from a horse for the purposes of enforcing the rules concerning prohibited substances. Under r 191(1), a certificate from a testing laboratory approved by the Controlling Body which certifies “the presence of a prohibited substance” in or on a horse or in a sample or specimen taken from a horse “is prima facie evidence of the matter certified”. By operation of r 191(2), if another person or laboratory approved by the Controlling Body analyses a portion of the sample or specimen referred to in subr (1) and “certifies the presence of a prohibited substance in the sample or specimen” then “that certification together with the certification referred to in subr (1) is conclusive evidence of the presence of a prohibited substance”.

  2. Rule 191(3) and (4) confirm the prima facie and conclusive effects of the two certificates specifically in relation to whether a horse was presented for a race not free of prohibited substances and whether a prohibited substance was present in or on the horse at the time the sample or specimen was taken from the horse, but otherwise do not add to the effect of subrr (1) and (2).

  3. Rule 191(5) and (6) establish that subrr (1) and (2) do not preclude other methods of proof of any of the relevant matters.

  4. Rule 191(7) provides:

“Notwithstanding the provisions of this rule, certificates do not possess evidentiary value nor establish an offence, where it is proved that the certification procedure or any act or omission forming part of or relevant to the process resulting in the issue of a certificate, was materially flawed.”

  1. The Tribunal relied upon r 191 to conclude that the prohibited substances, epitrenbolone and trendione, were detected in the horse, I’m All Courage, when it was presented to race in race 7 at Bathurst on 20 April 2020.

  2. The plaintiffs submitted that the certificates from the two testing laboratories relied upon by the Tribunal were affected by material flaws for the purposes of r 191(7) and thus were deprived of any evidentiary effect.

  3. As noted above, the first material flaw was said to be that epitrenbolone and trendione were not “prohibited substances”. This in effect depended on the plaintiffs’ ground 1(a) being upheld. Since ground 1(a) has been rejected for the reasons set out earlier in this judgment and epitrenbolone and trendione do not fall within the exemption for altrenogest when administered to fillies and mares in r 188A(3) and, therefore, are “prohibited substances” on the proper construction of r 188A, there was no material flaw in the certificates on the basis that epitrenbolone and trendione were not “prohibited substances”.

  4. The second material flaw was said to be that the certificates failed to refer to the detection of the quantity of altrenogest in the samples taken from the horse and this was material information since it was said in effect that this information would establish that only altrenogest was administered to the horse and not epitrenbolone and trendione. It can be noted that the Tribunal found that only altrenogest, and not epitrenbolone or trendione, was administered to the horse in the present case. Accordingly, the certificates were not relied upon by the Tribunal to establish that epitrenbolone and trendione were administered to the horse independently of altrenogest.

  5. Furthermore, the certificates referred to in r 191(1) and (2) are certificates which certify “the presence of a prohibited substance”. Thus, to fall within the operation of r 191, the certificates were required to certify whether a “prohibited substance” was present. They were not required, and their purpose was not, to certify the presence of any substance which was not a “prohibited substance”. Accordingly, the failure to certify the presence of altrenogest, which was not a “prohibited substance” when administered to fillies and mares did not involve any relevant material flaw in relation to the certificates.

  6. Finally, the Tribunal’s reasoning at D[246] to D[258] in relation to the material flaw submissions advanced by Mr Trevor-Jones before the Tribunal was consistent with what has been set out above. There was thus no error on the part of the Tribunal on the face of the record nor was there any jurisdictional error by the Tribunal, in regard to the r 191 certificates.

  7. In these circumstances, I reject ground of review 1(e).

Ground 2

  1. Ground 2 relied upon by the plaintiffs raised the issue of whether, if rr 188A(1), 190(1), 190(2), 190A and 190AA “prohibited the administration or presence in the horse of commercially available veterinary pharmaceutical preparations of altrenogest (allyl trenbolone) approved by the Australian Pesticides and Veterinary Medicines Authority” but r 188A(3) permitted such administration, rr 188A(1), 190(1), 190(2), 190A and 190AA would then be invalid for uncertainty.

  2. This ground of review did not purport to identify an error of law on the face of the record or a jurisdictional error on the part of the Tribunal. Nor did it appear to relate to an argument raised before the Tribunal, as far as that could be determined from the material available.

  3. In the plaintiffs’ written submissions, it was made clear that this ground 2 concerned the application of rr 188A(1), 190(1), 190(2), 190A and 190AA to the detection of trace amounts of trenbolone, epitrenbolone or trendione, in the presence of altrenogest. The substance of this ground was articulated as being that those rules were uncertain because of the inability of a person coming under the AHRR to answer the question: could a trainer lawfully administer altrenogest or not?

  4. This inability to answer the question was said to arise because “it being known that altrenogest medicine cannot be manufactured without being accompanied by traces of the trendione or epitrenbolone, if they were to be treated as prohibited substances, any use of altrenogest might be in breach of rule 190AA(1) or (3) (or 239A), despite r 188A(3) and even if there was no laboratory detection of the impugned traces”.

  5. In my view, this ground of review should not be accepted. It was not raised before the Tribunal and was not said to involve an error of law on the face of the record or jurisdictional error.

  6. In addition and in any event, the ground as developed by the plaintiffs in submissions was based on the factual proposition to the effect that altrenogest could not be manufactured without trace amounts of epitrenbolone or trendione being present in the final product. That factual proposition was not supported by the Tribunal’s actual findings which have been referred to in more detail above in relation to other grounds and which were, in substance, that epitrenbolone and trendione were not necessary concomitants of altrenogest and were not necessarily present in the final manufactured product by which altrenogest could be administered, but that epitrenbolone and trendione may from time to time be found in trace amounts in fillies and mares treated with altrenogest.

  7. Furthermore, there was another difficulty with this ground of review. The relevant provisions of the AHRR did not give rise any inability to answer the question, or any uncertainty as to, whether a trainer could administer altrenogest to a filly or mare lawfully, given the terms of r 188A(3) and other relevant rules, on their proper construction. The only uncertainty that might arise was because it was factually uncertain whether and why the prohibited substances epitrenbolone or trendione might be present in a filly or mare after administration of altrenogest. This factual uncertainty was recognised in the notices issued from 2018 when the presence of epitrenbolone and trendione was first detected in mares or fillies treated with altrenogest.

  8. The correct characterisation of the situation is that rr 188A(1), 190(1), 190(2), 190A and 190AA, on the construction of r 188A(3) and the other rules adopted by the Tribunal and as set out above, are not uncertain in their legal operation. The uncertainty arises if a filly or mare is treated with altrenogest because it will not be known whether epitrenbolone or trendione is present in a sample before relevant testing is carried out. This factual uncertainty before testing as to the effect of applying the relevant rules in a particular case is not such as to render any of the relevant rules invalid or void for uncertainty.

  9. For these reasons, I do not accept that ground of review 2 raised an error of law on the face of the record or any jurisdictional error. Further and in any event, in all the circumstances rr 188A(1), 190(1), 190(2), 190A and 190AA are not uncertain in their operation and consequently are neither void nor invalid. Accordingly, this ground of review has not been made out.

Conclusion on grounds of review

  1. None of the grounds of review relied upon by the plaintiffs has been successful.

Time for commencing proceedings

  1. Since one of the decisions challenged in these proceedings was made by the Tribunal on 23 December 2022 but the proceedings were not commenced until 5 June 2023, more than three months after the date of the decision, the plaintiffs sought an extension of time for the commencement of proceeding under r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The other challenged decision was made on 6 March 2023 and the proceedings were commenced just within the three-month period prescribed by r 59.10(1) of the UCPR. The matter has been fully argued and there was no prejudice to the defendants arising from the date of commencement, it appeared to me to be appropriate to grant the extension of time sought, to the extent that it was necessary.

Orders and costs

  1. For the reasons already given, the time for commencing the proceedings should be extended to 5 June 2023.

  2. Since none of the grounds of review has been made out, neither the order in the nature of certiorari nor any of the consequential orders, including the declarations, sought should be granted.

  3. As to costs, the plaintiffs have been entirely unsuccessful and, in the absence of any reasons why costs should not follow the event, I would make an order that the plaintiffs pay the defendants’ costs.

  4. The plaintiffs have, however, in their written submissions sought the opportunity to be heard on the question of costs in the event that they were unsuccessful but no specific reasons were identified as to why costs should not follow the event.

  5. In order to allow the parties time to consider the judgment and perhaps reach agreement as to costs, I shall not make any costs order at this point. Against the possibility that no agreement is reached, the parties will be allowed to make short written submissions on costs, with any decision in relation to costs to be made on the papers, unless a hearing is sought.

For the reasons set out above, the orders of the Court are:

The time for commencement of the proceedings is extended to 5 June 2023.

The plaintiffs’ summons filed on 5 June 2023 is dismissed.

In relation to the question of costs:

  1. The plaintiffs are to file and serve any evidence and written submissions, not exceeding three pages, on or before 26 July 2024;

  2. The first defendant is to file and serve any evidence and written submissions, not exceeding three pages, on or before 2 August 2024;

  3. The plaintiffs are to file and serve any material in reply on or before 9 August 2024; and

  4. The decision on costs is to be made on the papers, unless a party indicates in the written submissions that an oral hearing is sought.

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Endnotes

Decision last updated: 26 September 2024

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Cases Citing This Decision

1

Trevor-Jones v Harness Racing New South Wales (No 2) [2024] NSWSC 1017
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