Day v Harness Racing New South Wales - [2014] NSWCA 423 - NSWCA 2014 case summary — Zoe

NSWNSWCA

Day v Harness Racing New South Wales

[2014] NSWCA 423

Court of Appeal (NSW)|2014-11-18|Before: McColl JA, Macfarlan JA, Leeming JA

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Source facts

Court

Court of Appeal (NSW)

Decision date

2014-11-18

Before

McColl JA, Macfarlan JA, Leeming JA

Source

Original judgment source is linked above.

Judgment (22 paragraphs)

[1]

v Tasmanian Racing and Gaming Commission [1977] HCA 39; 137 CLR 487 Jacques v Amalgamated Union of Engineering Workers [1987] 1 All ER 621 James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 Jarratt v Commissioner of Police for New South Wales [2005] HCA 50; 224 CLR 44 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 Kioa v West [1985] HCA 81; 159 CLR 550 Lisafa Holdings Pty Ltd v Commissioner of Police (NSW) (1988) 15 NSWLR 1 Marine Hull and Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234 McCowan v Baine [1891] AC 401 Meagher v Stephenson (1993) 30 NSWLR 736 Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; 238 CLR 642 Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; 113 CLR 475 Morton v Union Steamship Co of New Zealand [1951] HCA 42; 83 CLR 402 NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; 220 FCR 44 New South Wales Bar Association v Evatt [1968] HCA 20; 117 CLR 177 New South Wales Crime Commission v Kelly [2003] NSWCA 245; 58 NSWLR 71 Orellana-Fuentes v Standard Knitting Mill Pty Ltd [2003] NSWCA 146; 57 NSWLR 282 Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; 251 CLR 1 Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 Porter v National Union of Journalists [1980] IRLR 404 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22; 206 CLR 57 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 Swan Hill Corporation v Bradbury [1937] HCA 15: 56 CLR 746 Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; 88 ALJR 473 Williams v City of Melbourne [1933] HCA 56; 49 CLR 142 Texts Cited: M Aronson and M Groves, Judicial Review of Administrative Action 5th ed, Law Book Co, 2013 M Robinson, Judicial Review, Thomson Reuters, 2014 Category: Principal judgment Parties: Neil Day (1st Appellant) Dean McDowell (2nd Appellant) Harness Racing New South Wales (1st Respondent) Reid Sanders (2nd Respondent) Representation: Counsel: DA Smallbone / DW Rayment (Appellants) AS Bell SC / ATS Dawson / D Forrester (Respondents) Solicitors: Prime Lawyers (Appellants) Cockburn & Co (Respondents) File Number(s): 2014/308740 Decision under appeal Citation: [2014] NSWSC 1402 Date of Decision: 14 October 2014 Before: Adamson J File Number(s): 2014/140312

[3]

Judgment

McCOLL JA: I agree with Leeming JA's reasons and the orders his Honour proposes.
MACFARLAN JA: I agree with Leeming JA.
LEEMING JA: The appellants train horses for harness racing. The first appellant also drives them. Both have done so for most of their adult lives (around 35 and 20 years respectively), and not without some success. Until 2014, neither appellant had been the subject of any show cause or other disciplinary proceedings.
Urine samples from three of their horses taken immediately after racing in February 2014 were found by a laboratory to have high levels of cobalt, a prohibited substance which enhances performance. Both men's licences were suspended, before an inquiry was held by stewards, before any charges were laid, before any determination of guilt and before any punishment was imposed. The trial was conducted on the basis that the appellants were given no notice that their licences were to be suspended, and evidence of what they would have said and in fact tried to say in the immediate aftermath of the suspensions was excluded.
There still has been no inquiry, nor charges laid, nor determination of guilt or innocence, nor imposition of any penalty, pending this Court's determination whether the suspensions were valid. In support of their claim that their suspensions were invalid, the appellants advanced a swathe of arguments, some of which were repeated on appeal. For the reasons given below, I have concluded that all the appellants' arguments were correctly rejected by the primary judge, save for the denial of procedural fairness. The appellants should have been given an opportunity to be heard before their licences were suspended.
The consequence is that the challenges to the rules prohibiting high levels of cobalt in harness racing have failed, the inquiries into the high levels of cobalt found in their horses in February may proceed, but the suspension of the appellants' licences on 30 April 2014 without notice was unlawful. On that limited basis the appeal should be allowed.

[4]

Harness Racing New South Wales and the Harness Racing Act 2009 (NSW)

Harness racing in New South Wales is regulated by the Harness Racing Act 2009 (NSW) (the Act), which establishes as a body corporate the first respondent, Harness Racing New South Wales (HRNSW). That body consists of five members, appointed by the Minister, who describe themselves as its "Board"; it will be convenient to use the same terminology in these reasons.
Some of the issues in the appeal concern the powers of HRNSW - and, in particular, its rule-making power - and the way in which it acts. HRNSW acts by decisions of a majority of its members. Decisions may be made at meetings or by circulating resolutions; only the former is relevant to this appeal. Clause 8 in Schedule 1 of the Act provides that "a decision supported by a majority of the votes cast at a meeting of HRNSW at which a quorum is present is the decision of HRNSW".
A large issue at first instance and in the appeal was proving the terms of a decision made by HRNSW supported by all of its members. HRNSW is not a "company" under the Corporations Act 2001 (Cth), and so the presumption as to the regularity of signed minutes in s 251A(6) is inapplicable. However, s 45 of the Act provides that "proof is not required (until evidence is given to the contrary) of ... any resolution of HRNSW". Further, HRNSW is a statutory body, and s 52 of the Interpretation Act 1987 (NSW) provides that acts or proceedings of a statutory body "shall not be called into question merely because of ... any minor irregularities in the manner in which any meetings of the body have been convened or conducted".
The main decision of HRNSW which was scrutinised at trial and on appeal was its decision to make "Local Rule 188A", which was directed to prohibiting elevated levels of cobalt in urine. It is necessary to explain the source of HRNSW's power to make such a rule. Section 22 of the Act empowers HRNSW to make rules "not inconsistent with this Act or the regulations, for or with respect to the control and regulation of harness racing". Section 22(2) identifies 12 particular matters for, or with respect to which, rules may be made. Section 23 in terms permits rules made under s 22 to "apply, adopt or incorporate any publication as in force at a particular time or as in force from time to time". Section 23(3) restricts the rule-making power where regulations have been made under the Act. Although no regulations have been made, the power conferred by s 22 is qualified, and consequently, in accordance with familiar principles associated with Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; 47 CLR 1, is to be seen as the sole rule-making power.
The rule-making power is limited by reference to what is not inconsistent with the Act. It is necessary to say something of the operation of the Act, and in particular ss 10 and 21 on which the appellants relied.
The Act's long title states that it is "to make provision with respect to the control and regulation of harness racing". The functions conferred on HRNSW include "to control, supervise and regulate harness racing in the State" and to register trainers and drivers (amongst others associated with harness racing). HRNSW's functions in turn inform its powers, for s 10(1) provides that "HRNSW has power to do all things that may be necessary or convenient to be done for or in connection with the exercise of its functions." In addition, s 10(2) specifies 18 specific powers conferred upon HRNSW without limiting the generality of s 10(1). Those specific powers include the power to "supervise the activities of ... persons registered by HRNSW", to "inquire into and deal with any matter relating to harness racing and to refer any such matter to stewards or others for investigation and report" and to "prohibit a person from attending or taking part in a harness racing meeting": s 10(2)(b), (c) and (h).
Section 21 is in these terms: "21 Disciplinary and work health and safety action may be taken by HRNSW (1) HRNSW may, in accordance with the rules, do any of the following: (a) cancel the registration under this Act of: ... (iii) any owner, trainer or driver of harness racing horses, or bookmaker or other person associated with harness racing, (b) disqualify, either permanently or temporarily, any owner, trainer or driver of harness racing horses, or bookmaker or other person associated with harness racing, ... (g) suspend, for such term as HRNSW thinks fit, any right or privilege conferred by this Act or the rules on any owner, trainer or driver of harness racing horses, or bookmaker or other person associated with harness racing, ... (3) HRNSW may only take action under this section for disciplinary purposes or for the purposes of work health and safety."

[5]

Rules governing harness racing: The AHRR and the Local Rules

The power in s 23 to "adopt" other rules has been used. HRNSW has adopted rules which have been made by a different organisation, Harness Racing Australia Inc, which are known as the Australian Harness Racing Rules (AHRR). Those rules are in addition to those made by HRNSW, which are described as the Local Rules of Harness Racing New South Wales (Local Rules). Local Rule 1 provides: "The Australian Harness Racing Rules and the Local Rules of Harness Racing New South Wales (including the Rules of Betting) shall be read, interpreted and construed together and as so combined shall be and be known as 'The Rules of Harness Racing New South Wales' and such rules apply to the administration, supervision and control of Harness racing throughout New South Wales."
The instruction to read, interpret and construe the Local Rules with the AHRR is reflected in the numbering of the Local Rules. The Local Rules, as at 9 January 2014, comprised 20 rules, numbered 1, 1A, 15, 25, 46, 49, 90A, 90C, 96, 120A, 153, 181, 188A, 189, 194, 216, 252, 256, 256A and 259. The numbering of each was evidently intended to assist in the Local Rule being read with the rules within the AHRR which dealt with the same subject matter.
Part 12 of the AHRR (rules 188-196A) deals with prohibited substances. It will be necessary to return to the detail of those rules; as will be seen below, HRNSW resolved to make a new Local Rule, rule 188A(2), which refers to and is to be read with the AHRR in accordance with Local Rule 1 and in particular with AHRR 188A so as to add to the prohibited substances there specified.
Speaking generally, AHRR 188A identifies prohibited substances, AHRR 189 authorises testing for prohibited substances, and AHRR 190 requires a horse presented for a race to be free of prohibited substances, failing which its trainer is guilty of an offence. AHRR 191(1) provides that a certificate from an approved drug testing laboratory which certifies that a prohibited substance is present is prima facie evidence of the matters certified, and AHRR 191(2) provides that a certificate from a second laboratory which certifies the same is conclusive evidence of the presence of a prohibited substance. However, if it be proved that any act or omission forming part of or relevant to the process resulting in the issue of a certificate was materially flawed, then the certificate does not possess evidentiary value: AHRR 191(7).

[6]

The decision to make cobalt a prohibited substance

Cobalt is found in various forms in most animals. For example, cobalt is found within the vitamin B12 molecule. It is involved in the final stages of maturation of red blood cells. It is found in all healthy horses. There was a deal of evidence, which was uncontroversial but whose details need not be recounted here, concerning the efficacy of cobalt to enhance the aerobic performance of horses.
However, it will be necessary to distinguish three substances containing cobalt. First, there is the pure elemental form of cobalt, which is a metal.
Secondly, cobalt exists in solid form as a number of salts, including cobalt chloride. Cobalt chloride may be anhydrous (where the crystals contain only cobalt and chlorine atoms), or hydrated (which generally takes the form of cobalt chloride hexahydrate). The anhydrous form occurs as blue crystals, while cobalt chloride hexahydrate occurs as dark purple or rose-red crystals.
Thirdly, cobalt chloride dissolves readily in water (at 20C, some 500 grams of the anhydrous form will dissolve in a litre of water; the hydrated form is even more soluble). In solution, no different from any salt, the cobalt and chlorine atoms separate and are ionised. Cobalt chloride is CoCl2 (under normal conditions) so there are two chlorine atoms for every cobalt atom; if pure cobalt chloride is dissolved in pure water, the concentration of chlorine ions will be twice the concentration of cobalt ions. If pure cobalt chloride is added to salt water, the concentration of chlorine ions will be more than twice the concentration of cobalt ions (because of the presence of chlorine ions from dissolved sodium chloride before any cobalt chloride was added).
For those reasons, it is meaningless to speak of, and impossible to measure, a concentration of dissolved "cobalt chloride". A solution will have separate concentrations of cobalt (ions) and of chlorine (ions), just as it will have separate concentrations of sodium (ions), magnesium (ions) and other soluble elements (as much may also be seen from the label of a bottle of mineral water).
Mr Reid Sanders is the second respondent, and is HRNSW's "Manager Integrity and Chairman of Stewards". He undertook extensive research, including travelling to North America, relating to cobalt being used to enhance performance in harness racing. The primary judge found that in September 2013, he caused the following press release to be issued: "COBALT CHLORIDE Harness Racing New South Wales (HRNSW) is aware that Cobalt Chloride is being used within the Harness Racing Industry. COBALT CHLORIDE is a prohibited substance under the Australian Harness Racing Rules and HRNSW warns that the use of Cobalt salts or Cobalt containing supplements is in breach of the Rules. HRNSW advises that they have engaged both local and international laboratories to analyse samples for the presence of Cobalt. Consistent with HRNSW swabbing strategy, any sample may be frozen and subject to further testing."
However, cobalt chloride is contained in a number of proprietary supplements and pre-mix feeds. Evidently this led to a second press release in September, which read in part: "COBALT CHLORIDE 12 September 2013 Following a number of inquiries today, HRNSW wishes to clarify the previous notification in relation to COBALT CHLORIDE. Cobalt Chloride is contained in a number of proprietary supplements and pre-mix feeds used in the Harness Racing industry. If these preparations are used in accordance with manufacturer's guidelines, they are allowable. HRNSW warns against the non-standard use of Cobalt salts or Cobalt containing supplements as it is a breach of the Rules."
Plainly a more calibrated approach was required, to distinguish what was regarded as legitimate feeding as opposed to unlawful treating of horses. In late 2013, some statistical analysis was done from urine samples taken from horses which had raced in New South Wales and Queensland. The majority of samples (63 out of 80) had a cobalt concentration of less than 50 µg per litre; the remainder had cobalt concentrations exceeding 97 µg per litre. HRNSW retained Professor Hibbert, who was described by her Honour at [30] as "a highly eminent statistician and analytical chemist". Professor Hibbert prepared a report which expressed the provisional view that 50 µg per litre could be taken as the upper level of a 'normal' population. The primary judge recorded that despite the understandably provisional conclusions in his report, Professor Hibbert gave evidence, which her Honour accepted, that there was sufficient information in order for HRNSW to select a threshold, and that a threshold of 200 µg per litre was both rational and reasonable: at [36]. There was no challenge to that finding on appeal, and it is unnecessary to say anything more about the robustness of the process by which HRNSW determined to put in place a more refined prohibition than had been announced in September 2013.
Mr Sanders presented a report to the five board members of HRNSW on 16 December 2013. A summary in the board papers was in these terms; it will be seen that there are two references to cobalt, but the proposed rule is formulated in terms of cobalt chloride: "Cobalt - Proposed New Local Rule As HRNSW has undertaken considerable research and analytical analysis for the substance Cobalt, it is important that we now ratify this by way of a Local Rule. The introduction of a National Rule would be some considerable time away, as we are the only state that is currently testing for it. NSWLR 188A(2) - In addition to AHRR 188A(2) the following substance when present at or above the levels set is deemed a prohibited substance under AHRR 188A(1)(a) & or (b) & or (c): (a) Cobalt Chloride at a level of 200 micrograms per litre in urine. I recommend that the Board adopt the proposed Local Rule effective immediately."
There was evidence that the proposed new Local Rule was discussed for between five and ten minutes on 16 December 2013. There was uncontroversial evidence that all board members expressed their agreement with what was proposed. There was controversial evidence about precisely what was said. The primary judge was not satisfied that Mr Sanders had drawn the board's attention to the erroneous reference to cobalt chloride during the meeting. Her Honour reached that view because she did not accept that he appreciated at the time that there was such an error.
Draft minutes were drawn up following the meeting. They were not drawn up by the executive assistant within the Integrity Department who normally performed that task; she was on medical leave. The minutes drew from the terms of the new proposed Local Rule as found in Mr Sanders' board paper, as follows: "Cobalt Reid Sanders tabled a proposed Local Rule for the testing of Cobalt Blue. The Board made the following resolution: The proposed local Rule NSWLR 188A(2) was approved. It reads as follows: In Addition to AHRR 188A(2) the following substance when present at or above the levels set is deemed a prohibited substance under AHRR 188A(1)(a)(b) or (c): (a) Cobalt Chloride at a level of 200 micrograms per litre in urine. Furthermore prosecutions relating to this substance can be backdated to the original Industry Notice published in August."
The primary judge accepted the evidence of the man who drafted the minute that he replicated the erroneous reference to "cobalt chloride", "because he copy typed the phrase from the board report without turning his mind to the discussion, which had been about the prohibition of cobalt" (at [45]). The copy typing was not exact; as well as other minor divergences, the reference to "AHRR 188A(1)(a) & or (b) & or (c)" became "AHRR 188A(1)(a)(b) or (c)".
In January 2014, the new rule was published in the Gazette, a monthly journal distributed to all persons licensed under the Act which is the official publication of HRNSW, referring to "Cobalt Chloride".

[8]

The suspension of the appellants' licences

The first appellant, Mr Neil Day, trained Benzi Marsh which won race 5 at Goulburn on 24 February 2014. Two urine samples were taken shortly after the race. It appears that one was sent, on 26 February 2014, first to the Australian Racing Forensic Laboratory, before being sent to the Australian Government National Measurement Institute (NMI) for testing for cobalt.
The sample was received by the NMI on 4 April 2014. A report disclosing a concentration of cobalt of 720 µg was signed by an analyst at NMI on 15 April 2014. Mr Sanders gave evidence of a conversation with an NMI analyst around that date (following a series of emails between the men), in which the analyst recommended further tests be performed, because the result was so high. Those further tests were carried out by NMI, and were confirmatory, and a certificate reporting a concentration of 710 µg dated 24 April 2014 was provided by the laboratory. At around this time, the second sample was sent to a different analytical laboratory (ChemCentre, in Western Australia, which had also been approved by HRNSW).
Mr Sanders gave evidence that he was "highly conscious that it would be very embarrassing for Mr Day, in particular, by reason of his position as President of the [United Harness Racing Association], to be suspended for a prohibited substance offence". Mr Sanders said that he advised all board members of HRNSW on 29 April 2014 of the results and that the "usual protocol" in those circumstances was immediate suspension. It may be inferred that Mr Sanders waited until the next (monthly) Board meeting in order to consult with HRNSW board members. Mr Sanders said that each board member said that the usual approach must apply.
By letter dated 30 April 2014, Mr Day was notified of the results, and of the fact that the reserve portions and control solutions had been sent to ChemCentre for confirmation. By the same letter, he was notified that his training and driving licence had been suspended. Mr Sanders agreed, in cross-examination, that there was "nothing to stop you hearing from [Mr Day] before you did that [ie suspend his licence] was there?".
ChemCentre received the sample on 17 April 2014, and reported on 5 May 2014 that cobalt had been detected at a concentration of 710 µg per litre. On 6 May 2014, HRNSW advised Mr Day that the reserve sample had been tested, attached the report from ChemCentre, and directed him to attend an inquiry to be held on 21 May. Proceedings in the Supreme Court were commenced on 9 May, as a result of which that inquiry has not taken place.
Samples were taken from two horses trained by the second appellant, Mr Dean McDowell, which had won in races at Bankstown on 28 February 2014. The chronology is essentially the same. The samples were received by the Australian Racing Forensic Laboratory on 3 March 2014, and by NMI on 11 April 2014. NMI produced reports dated 28 April 2014 which indicated cobalt concentrations of 550 µg and 570 µg.
Mr McDowell received notification of those results, and of his suspension, on 30 April 2014. It seems that at the time proceedings were commenced, on 9 May 2014, Mr McDowell had not received a second certificate. Nor had he been notified of a date of any inquiry.

[9]

Proceedings at first instance

The proceedings were commenced on 9 May 2014, came before the duty judge on 14 May 2014 and were listed for final hearing, with an estimate of three days, in August 2014. Elaborate points of claim (of 191 numbered paragraphs) were filed. There was a contested interlocutory hearing on 24 and 25 July 2014, following which further amendments were made to the points of claim. There had been some delay on both sides, and the amendments caused more; moreover it seemed likely that three days would not be sufficient. The August hearing was vacated and the matter set down for hearing over five days from 29 September until 3 October 2014: see the ex tempore reasons in Day v Harness Racing New South Wales [2014] NSWSC 1024. There was evident and understandable dissatisfaction concerning the way the proceedings were being prepared, which is best illustrated by the evocative catchwords: "excessive material placed before duty judge - ridiculous estimates as to length of case".
The adjourned final hearing took place. The primary judge delivered reasons of 216 paragraphs over 66 pages only 11 days later, on 14 October 2014. It should be said immediately that the factual and legal issues before her Honour were significantly more numerous than those arising on the appeal, and that her Honour carefully attended to all submissions and made findings of fact resolving disputes between lay witnesses and experts. Most of her Honour's findings and reasoning are not challenged on appeal.
The primary judge dismissed the proceedings. An appeal was filed on 21 October, and given an expedited hearing on 18 November 2014. The appeal contains seven grounds. To the extent that her Honour's reasoning is challenged, it will be exposed below in the course of dealing with the grounds of appeal.
In submissions served on the Friday before the appeal was heard (on the following Tuesday), the respondents pointed out that it had not been shown that leave was not required, by reason of Supreme Court Act 1970 (NSW), s 101(2)(r). The operation of that provision in judicial review proceedings challenging the power to suspend a valuable licence is not straightforward, and no detailed submissions were advanced by any party. Without expressing a view one way or the other on whether the appeal lay as of right, it is plain that there should to the extent necessary be a grant of leave. The matter affects the reputation and livelihood of both appellants, and raises questions of general importance in the administration of the Act.

[10]

Ground one - validity and construction of AHRR 188A

The appellants had contended at trial that AHRR 188A was invalid. Accordingly, as Local Rule 188A(2) depended for its validity upon the validity of the national rule, it was also invalid. In order to resolve this ground, it is important to appreciate the structure of AHRR 188A, which is reproduced in its entirety in an annexure to these reasons.
AHRR 188A(1) identifies three categories of prohibited substances. The first category is defined by reference to a direct or indirect action and/or effect within one or more of ten named mammalian body systems. If it be read literally, a substance capable of causing an action or effect on the nervous system, or the digestive system, or the blood system, falls within this category. The second category is substances "falling within but not limited to the following categories" and thereafter around 60 categories of substances are identified, at a level of chemical or biochemical detail, including "acidifying agents, adrenergic blocking agents, adrenergic stimulants, agents affecting calcium and bone metabolism, alcohols, alkalinising agents [and] anabolic agents". The third category is metabolites, artifacts and isomers of the first and second categories.
AHRR 188A(2) exempts certain classes of substances from the prohibition in r 188A(1) when they are present "at or below the levels set out" in the rule. Thus, for example, "[a]rsenic at a level of 0.30 micrograms per millilitre in urine" and "[f]ree hydrocortisone at a concentration of 1.00 micrograms per millilitre in urine" are exempted.
Rule 188A(3) identifies a list of eleven substances which are not prohibited substances (irrespective of the concentration in which they are present). Some are particular chemicals (including ranitidine, omeprazole and ambroxol). Others are classes of substances, including "registered vaccines against infectious agents" and "antimicrobials (antibiotics) and other antiinfective agents but not including procaine penicillin".
The appellants' submission on appeal took the following form (substantially the same attack appears to have been mounted at trial): 1. Local Rule 188A(2) depended upon the validity of AHRR 188A(1), to which it expressly referred. As it was put in writing: "NSWLR 188A(2) is indelibly linked to AHRR 188A(1) by its express language. Its validity should therefore abide by that of AHRR 188A(1)." 1. The appellants relied on an admission that "each of water, oats, Lucerne hay, carrots and iron supplements are substances capable of having effects described by AHRR 188A(1)(a)." 2. Accordingly, AHRR 188A(1) meant that: "Horses cannot be affected by feed or water on race day. They must be presented free of water and nutriment". 1. This made AHRR 188A(1) capricious or arbitrary, or involving such an oppressive or gratuitous interference with people's rights that it "could not in any proper sense be regarded as an exercise of the power conferred by the statute".
The primary judge acceded to the submissions of the defendants that it was not necessary for her to determine the meaning or validity of AHRR 188A(1), on the basis that the deeming in Local Rule 188A(2) was to remove a doubt which might otherwise exist and to "put beyond doubt that cobalt at or above the specified concentration is a prohibited substance". Her Honour said (at [144]): "Accordingly, it is not necessary to address the attacks made by the plaintiffs on the breadth of rule 188A(1)(a) as it would apply without the deeming provision of NSWLR 188A(2) since the question does not arise for determination in the present case."
I am not sure that I agree with the approach taken by the primary judge. If, as the appellants contended, AHRR 188A(1) is invalid, then the effect of Local Rule 188A(2) is to deem cobalt at a particular level to be a prohibited substance under an invalid rule. It seems to me to be at least arguable that a premise of the validity of Local Rule 188A(2) is the validity of AHRR 188A(1) for reasons analogous to those given by Gummow J in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 at 144 ("The provisions of Pt 1 ... are ancillary to Pt 2 and fall with it"), especially if Local Rule 188A(2) was merely confirmatory, as her Honour found.
However, it is unnecessary to express a concluded view, because it is plain that the extreme literalism for which the appellants contend, and on which their submission depends, is not the proper construction of AHRR 188A(1).
First, it is trite that the ordinary grammatical or literal meaning of any legal text is not necessarily its legal meaning: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78]; Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; 88 ALJR 473 at [65]. An example is Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; 251 CLR 1 where Hayne J said at [173] that, because an Act must be read as a whole, "the grammatical meaning of s 31(3) is not its legal meaning".
Secondly, the AHRR are (expressly) to be construed so as to promote their purpose: AHRR 309. It is absurd to construe the rule so as to prohibit horses presented on a race day from drinking water or eating carrots, even though both substances have an impact on systems within horses. That literal construction cannot promote the purpose of the rule.
Thirdly, the rule expressly mentions around 80 particular chemicals, agents or other substances. Some artificial substances are prohibited per se by subrule (1)(b); others are permissible by subrule (2) only if they are present below certain concentrations; yet others are expressly excluded from the scope of the rule by subrule (3). None of those chemicals, agents and other substances which are specifically named in AHRR 188A(1)(b), 188A(2) or 188A(3) are familiar, naturally occurring foods which form a regular part of the diet of horses.
In those circumstances, it should be concluded that the legal meaning of the rule has nothing to say about ordinary, naturally occurring foodstuffs. The scope of the general words in AHRR 188A(1)(a) is the same as the scope of AHRR 188A(1)(b), 188A(2) and 188A(3). Long ago the Earl of Selborne said that "there is as much danger of error in extreme literalism as in too much latitude": McCowan v Baine [1891] AC 401 at 403. Dixon J said (by reference to earlier authorities) that "the manifest intention of a statute must not be defeated by too literal an adhesion to its precise language": H Jones & Co Pty Ltd v Kingborough Corporation [1950] HCA 11; 82 CLR 282 at 318. The appellants' construction illustrates the point both judges were making.
It is not necessary in order to resolve this appeal to determine all aspects of the construction of AHRR 188A, which is not straightforward and far from clearly worded. It is sufficient to conclude that it does not bear the meaning on which the appellants' submissions depend. This ground fails.
It is convenient to deal, out of order, with grounds six and seven, which also attack aspects of the rules, and share other similarities with ground one.

[11]

Ground six - validity of AHRR 90, 90A and 91

By ground six, the appellants submitted that the primary judge had erred in finding that AHRR 90, 90A and 91 were valid, and in rejecting the contention that those rules were invalid because: "(a) they effect a prohibition of harness racing subject to a discretionary exemption, and (b) they are not consistent with the scheme of registration and licensing provided for by the [Act]".
Those rules authorise the issuing of licences, including to drivers and trainers. The power to do so is broadly worded. A licence may be granted for a period and on such terms and conditions as is thought fit, and an application may be refused without assigning any reasons: AHRR 90(4) and (5).
The appellants contended that the scheme of a prohibition relieved by discretionary licensing was "ultra vires the Act", relying upon the references to "control and regulation of harness racing" in ss 9 and 10. The appellants placed particular reliance upon Williams v City of Melbourne [1933] HCA 56; 49 CLR 142 at 155 and Swan Hill Corporation v Bradbury [1937] HCA 15; 56 CLR 746 at 762, in which cases it was said that a regulation-making power to regulate did not extend to a power to prohibit. Although the written submissions were elaborate, no mention was made of s 22 in relation to this ground of appeal.
It is vital to distinguish between (a) the power of HRNSW to make a rule, and (b) the power of HRNSW to act in implementing the rules. The challenge in ground six (and ground seven) is to the former.
Moreover, the starting point in any such challenge must be "the true nature and purpose of the power": Williams at 155. The power is conferred in broad terms. The primary power is one to make rules, not inconsistent with the Act, "for or with respect to the control and regulation of harness racing". That power extends to making "rules for or with respect to" "any of the matters referred to in Division 1 of Part 3", which includes s 21.
It follows immediately that the power conferred by s 22 is not limited in the way in which the appellants contended. The words "for or with respect to the control and regulation" are broader than the power "for the purposes of ... regulating" in Williams (at 151) and Swan Hill (at 755) (decisions based upon the by-law making powers conferred by Victorian local government legislation enacted in 1915 and 1928). Unlike the by-law making powers on which the appellants relied in Williams and Swan Hill, s 22 is not a purposive power. (Substantially the same argument was rejected, in this Court, in Orellana-Fuentes v Standard Knitting Mill Pty Ltd [2003] NSWCA 146; 57 NSWLR 282 at [103]-[104].)
The appellants' submissions must therefore be rejected, for reasons which may in light of the foregoing be stated concisely. First, the power is not purposive. Secondly, it is not confined to regulation; it extends to the "control" as well as to the "regulation" of harness racing. Thirdly, the Act in terms confers a power to prohibit a person from taking part in a harness racing meeting: s 10(2)(h), and for the reasons given in answer to ground seven, the qualification that the power be used, relevantly, for disciplinary purposes is not to the point. It follows that there can be no occasion to read the words "control and regulation" to exclude a power to prohibit. For that reason, her Honour was with respect correct to rely upon what Dixon J said in Williams at 155-156: "But this doctrine [that regulation does not permit prohibition] does not altogether exclude the prohibition of particular acts or things which may be contained within the subject matter. The nature, operation, and apparent purpose of the restraints imposed must be considered and, if they fairly answer the description of a regulation of the subject matter, the power will sustain them." The use of licences is a conventional means of regulating occupations which are thought to require external control. The fact that the rule-making power extends to those mechanisms is confirmed by s 3(3) of the Act, which provides that references in the Act to registration, register and registered extend to licence, license and licensed.

[12]

Ground seven - AHRR 183(d) inconsistent with s 21(1)(g)?

By ground seven, the appellants submitted that the primary judge had erred in deciding that ss 10 and 21(1)(g) of the Act supported the making of AHRR 183(d). Rule 183(d) conferred power on the Stewards to direct that a licence be suspended pending the outcome of an inquiry.
The appellants submitted that one of three aspects of s 21(1)(g) was inconsistent with what would otherwise be the unfettered power in s 22, and engaged the qualification "not inconsistent with this Act". They added that s 10 had no additional effect so as to render the qualified operation of s 21 superfluous.
The first of the three aspects of s 21(1)(g) was that a rule to suspend "pending the outcome of an inquiry", which did not specify a particular time, fell outside the grant of power in s 21(1)(g) to "suspend, for such term as HRNSW thinks fit"; it was said, by reference to criminal sentencing, that the term had to be fixed. The second was that the licence was not a "right or privilege conferred by this Act or the rules". The third pointed to the restriction in s 21(3) and said that the purpose of the challenged rule fell outside the restriction of "for disciplinary purposes or for the purposes of work health and safety".
Each of those submissions should be rejected. First, there is no reason to read the words "for such term as HRNSW thinks fit" as amounting to a restriction upon the power of HRNSW to authorise a rule which provides for suspension for a period whose end date is presently unknown ("pending the outcome of an inquiry"). There is an express power to inquire, and an express power to suspend; why ever would the former be construed so as to exclude suspension until the determination of the inquiry contemplated by the latter? The notion of "suspending, for such term as HRNSW thinks fit", in contradistinction to "disqualification, either permanently or temporarily", is inherently interim, and is a world away from a sentence imposed following a criminal conviction. Such an inherently interim power should not be limited as the appellants contend.
Secondly, the licensing of a trainer under the rules is a "right or privilege" conferred by the rules. It is ordinary legal language, such as, for example, was used to describe the commercial fishing licence considered in Harper v Minister for Sea Fisheries [1989] HCA 47; 168 CLR 314 at 325 ("statutory right or privilege which a commercial licence confers upon its holder").
Thirdly, "disciplinary purposes" within the meaning of s 21(3), in a context which includes cancellation of registration of clubs, horses, owners, trainers and drivers, temporary or permanent disqualifications, fines and other prohibitions as well as suspensions, picks up the protective disciplinary purposes familiar in the regulation of professional associations. For example, the power of this Court to discipline a barrister is "entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved": New South Wales Bar Association v Evatt [1968] HCA 20; 117 CLR 177 at 183-184.
When a power to make delegated legislation is conferred in terms confined by "not inconsistent with", an important consideration is "the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned": Morton v Union Steamship Co of New Zealand [1951] HCA 42; 83 CLR 402 at 410; Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; 251 CLR 1 at [54], [133] and [174]. The Act identifies broad subject matters, such as "control, supervise and regulate harness racing", makes specific provision for disciplinary powers of cancellation, disqualification and suspension, and contains a generally worded, non-purposive rule-making power. It is thus clear that the challenged rule is entirely within the subject matter delineated by the Act, which leaves it to the rules to prescribe such matters with more precision.
Finally, there is nothing inconsistent in s 10 so as to cut down the rule-making power conferred by s 22. The appellants' challenge to power based on s 21 must therefore fail.

[13]

Ground two - "cobalt" or "cobalt chloride" in Local Rule 188A?

The primary judge found that the Local Rule as made on 16 December 2013 was not as appeared in the board papers, or the board minutes signed as correct by the Chairman, or as originally published physically and electronically, with the mistaken reference to the concentration of "cobalt chloride". To the contrary, her Honour found that the rule as made was in terms of the concentration of "cobalt", not cobalt chloride.
The appellants challenged that finding. They invited the Court to review all evidence which bore upon it. That is no small thing. There is no need to do so, because even if the appellants are right, they must fail, and for two independent reasons.
First, let it be assumed, favourably to the appellants, that the rule as made on 16 December 2013 used the language of "Cobalt Chloride at a level of 200 micrograms per litre in urine". What is the legal meaning of the rule so expressed?
The appellants' construction is decidedly unattractive. They acknowledged the impossibility of testing for the concentration of "cobalt chloride". They said that the rule had no operation at all.
Courts should strain against a construction which gives no work whatsoever to legal language. The rule is required to be construed purposively; a construction which gives a rule no operation at all is necessarily inconsistent with its purpose.
Obvious drafting errors may be corrected, even where they occur in legislation: Minister for Immigration and Citizenship v SZJGV [2009] HCA 40; 238 CLR 642 at [12]. See for example the reading of "person who will forfeit an interest in property" as "person who has forfeited an interest in property" in New South Wales Crime Commission v Kelly [2003] NSWCA 245; 58 NSWLR 71 at [23]. It is tolerably clear that if the appellants' factual finding is upheld, there was an obvious drafting error, of "cobalt chloride" for "cobalt".
It is important to appreciate that the Local Rule was not drafted by Parliamentary Counsel, nor scrutinised in the way that tends to occur of a bill as it passes through Parliament and receives assent. It is legitimate to have regard to the fact that regulations are less carefully drafted, and less keenly scrutinised, than primary legislation: Environment Protection Authority v Schon G Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) [2014] NSWCA 149 at [44]-[45]. It is equally legitimate to have regard to the fact that Local Rule 188A(2) was drafted by Mr Sanders, and adopted by the five members of HRNSW. I mean no disrespect, but none of those men would profess to expertise in legal drafting. Their rules should be construed bearing as much in mind.
In Porter v National Union of Journalists [1980] IRLR 404 at 407, Lord Diplock applied a similar approach in a comparable context: "I turn then to the interpretation of the relevant rules, bearing in mind that their purpose is to inform the members of the NUJ of what rights they acquire and obligations they assume vis-à-vis the union and their fellow members, by becoming and remaining members of it. The readership to which the rules are addressed consists of ordinary working journalists, not judges or lawyers versed in the semantic technicalities of statutory draftsmanship."
Likewise, it was said in Jacques v Amalgamated Union of Engineering Workers [1987] 1 All ER 621 at 628 that: "the rules of a trade union are not to be construed literally or like a statute, but so as to give them a reasonable interpretation which accords with what in the court's view they must have been intended to mean, bearing in mind their authorship, their purpose and the readership to which they are addressed."
So too here. It is impossible to measure the concentration of "cobalt chloride". It is possible to measure the concentration of cobalt, in its ionised form when dissolved. (It is also possible to measure the concentration of dissolved chlorine, but that would be equally nonsensical in a rule whose context is the prohibition of a performance enhancing substance, namely, cobalt.)
Further, it is plain on the face of the rule that the drafting is inexact in many other respects. The syntax is less than perfect. The opening words "In addition to AHRR 188A(2)" are infelicitous (for AHRR 188A(2) is a series of exceptions which are not prohibited substances). The reference to "AHRR 188A(1)(c)" is unnecessary - how could (c) apply? There is no good reason, where every other part of the language is less than exact, to conclude that its legal meaning is the nonsensical literal meaning as opposed to what plainly accords with its purpose.
In short, there is an obvious mistake, and only one meaning which the words could bear, in an instrument which is less formal than a statute or regulation, to which a more relaxed approach to construction is available and appropriate. If the rule as made was in the terms for which the appellants contend, such that it prescribed the nonsensical concentration of "cobalt chloride", it should be construed so as to refer to the concentration of cobalt. This is not to "divine unexpressed legislative intention or to remedy perceived legislative inattention"; cf Taylor at [65]. It is to give to the new Local Rule a legal meaning which is indubitably that which HRNSW is taken to have intended.
Secondly, the Act speaks of HRNSW acting by making "decisions". It is plain from the uncontroversial evidence of what happened in January, culminating in the formal correction recorded in the January minutes, that the Board's decision was in fact to make a rule which referred to "cobalt", not "cobalt chloride". Complexities would arise on this approach had it been alleged that there was a contravention of the rule prior to 28 January 2014, but that is not this case.
The "decision" of HRNSW, when all that occurred in December 2013 and January 2014 is considered, was to make a rule which referred to a concentration of cobalt. The decision of HRNSW unanimously made on 16 December 2013 was unanimously amended on 28 January 2014. The fact that the signed minutes of the December meeting were not corrected is precisely the sort of "minor [irregularity] in the manner in which any meetings of the body have been ... conducted" to attract the protection of s 52 of the Interpretation Act.
Either of those reasons suffice to dispose of ground two. It follows that the question whether there was appellable error in the factual finding made by the primary judge, which occupied a great deal of time at first instance and on appeal, is entirely arid, and need not be addressed further.

[15]

Ground four - procedural fairness

The appellants contend that the primary judge erred in finding that they did not have a right to be heard prior to their licences being suspended. Her Honour addressed the complaint that there had been a denial of procedural fairness at [191]-[210], and concluded at [209]-[210]: "In my view, the overall process in the present case, which includes an imminent inquiry and, if the plaintiffs chose to avail themselves of it, a right of appeal to the Tribunal on the merits, accords procedural fairness to the plaintiffs. In these circumstances I do not consider that they had a right to be heard before their licences were suspended on an interim basis following the results of the post-race urine samples. Had I been of the view that there was an obligation to afford a hearing before interim suspension of the plaintiffs' licences I would have declined relief in the exercise of my discretion. First, there was nothing the plaintiffs could have said that would have altered the outcome of the decision to suspend their licences pending the inquiry (Stead v State Government Insurance Commission at 145). Secondly, the plaintiffs could have appealed to the Tribunal against the interim suspension and could have sought a stay of the interim suspension from the Tribunal and chose not to do so: see Foster v Jododex Australia Pty Limited (1972) 127 CLR 421 at 427 per Walsh J."
I respectfully disagree with the primary basis of her Honour's reasoning, that having regard to the "overall process" there was no right to be heard prior to the decision to suspend the appellants' licences. I also respectfully disagree with both aspects of the alternative basis of her Honour's reasoning, that relief should be refused because nothing could have been said that would have altered the outcome, and by reason of the failure to approach the Racing Appeals Tribunal. I address each of these matters below, while at the same time dealing with HRNSW's submissions in support of them.

[16]

(a) An obligation to accord procedural fairness applied to suspension decisions

"The first step in addressing a question of procedural unfairness is to identify the decision reached which was said to be tainted by such unfairness": Greyhound Racing NSW v Cessnock & District Agricultural Association [2006] NSWCA 333 at [79] (Basten JA, Beazley and Hodgson JJA agreeing). There were two distinct powers the subject of argument at trial and on appeal. The first was the power actually exercised on 30 April 2014 to suspend the appellants from training and driving horses pending the outcome of an inquiry; the validity of the decision to do so was challenged in the proceedings. The second has not been exercised, although it was at the forefront of HRNSW's submissions on "overall process". If, following an inquiry, it is found that either or both appellants are guilty of an offence (such as being the trainer of a horse presented for a race which is not free of prohibited substances, contrary to AHRR 190(2)), then there is a separate power to punish by fine, suspension or disqualification pursuant to AHRR 256.
It has always been common ground that an obligation to accord natural justice will accompany the exercise of the second power. The issue is whether there is an obligation to accord natural justice in connection with the exercise of the first power. Contrary to the tenor of HRNSW's submissions, that question is not answered affirmatively by reason of the fact that a hearing will take place in connection with the second power.
Secondly, it is useful in light of HRNSW's submissions and the reasoning of the primary judge to repeat what was said in Kioa v West [1985] HCA 81; 159 CLR 550 at 584 concerning whether there is a duty to accord procedural fairness: "The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention."
Two updating qualifications to that familiar passage may be noted. One is that it is unproductive to consider whether that "common law duty" is to be seen as sourced in common law, or as a matter of statutory construction; statutory construction is part of the common law, and the result is ultimately the outcome of the interaction between the three branches of government in the manner stated in S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at [97]. The other is that reference to "legitimate expectations" must be refined in light of decisions including Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1, as may be seen in the formulation in Saeed v Minister for Immigration and Citizenship [2010] HCA 23; 241 CLR 252 by five members of the Court at [11]: "[I]t could now be taken as settled that when a statute confers power to destroy or prejudice a person's rights or interests, principles of natural justice regulate the exercise of that power."
Subject to those qualifications (which are not presently relevant), the approach stated in Kioa is general. It applies whenever statute confers power to destroy or prejudice a person's rights or interests. This has been endorsed repeatedly, most recently in S10/2011 at [66], where Gummow, Hayne, Crennan and Bell JJ agreed with Brennan J's statements in Kioa that: "The presumption that the principles of natural justice condition the exercise of a statutory power may apply to any statutory power which is apt to affect any interest possessed by an individual whether or not the interest amounts to a legal right or is a proprietary or financial interest or relates to reputation" and "There are interests beyond legal rights that the legislature is presumed to intend to protect by the principles of natural justice. It is hardly to be thought that a modern legislature when it creates regimes for the regulation of social interests - licensing and permit systems, means of securing opportunities for acquiring legal rights, schemes for the provision of privileges and benefits at the discretion of Ministers or public officials - intends that the interests of individuals which do not amount to legal rights but which are affected by the myriad and complex powers conferred on the bureaucracy should be accorded less protection than legal rights."
A direct affectation of a statutory licence which is necessary to conduct a person's occupation, such as a suspension, attracts these principles, even though (a) the right is a creature of statute, and (b) the power to suspend is less than a cancellation. That is the point of the generality of the language of "affect" and "any interest" in those passages. In all cases, it is necessary to identify plain words of necessary intendment in order to exclude the principles of procedural fairness. This was said to be "settled" in Annetts v McCann [1990] HCA 57; 170 CLR 596 at 598 and Saeed at [11], and "well established" in Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 at [74].
However, the passage in Kioa on which her Honour relied at [196] (and which was prominent in the defendants' written and oral submissions at trial) addresses a different question. That passage concerns the flexible content of the duty to accord procedural fairness, once it be held that the duty has not been excluded. For many decades, it has been thus, as may be seen from the authorities cited by Kitto J in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; 113 CLR 475 at 503-504. This aspect of Kioa was not in the slightest degree innovative.
Likewise, questions of what amounts to "practical injustice" are not directed to the existence of the obligation to accord procedural fairness, but to its content: see Frost v Kourouche [2014] NSWCA 39 at [41]. The caution given by this Court in CSR Ltd v Eddy [2008] NSWCA 83; 70 NSWLR 725 at [39] is apt: "Care must be taken in relation to the application of phrases such as 'practical injustice' which can, taken out of context, appear to have a broad and indefinite scope of operation." The same caution may be seen in the reasons of Allsop CJ and Katzmann J in NBNB v Minister for Immigration and Border Protection [2014] FCAFC 39; 220 FCR 44 at [4].
The test for whether there is a duty to accord procedural fairness does not turn on its flexible content or "practical injustice". If a statutory power will prejudice or affect a particular person's right or interests, there is a duty to accord procedural fairness to that person unless it has been excluded by plain words of necessary intendment. That issue was not separately addressed by the primary judge, although it will be seen from [209] reproduced above that her Honour seems implicitly to have accepted that the suspension of the licences attracted these principles. Plainly enough, that was so. The suspension of the appellants' licences was an exercise of public power which attracted the obligation to accord procedural fairness. The licences were the source of the appellants' income. They were indispensable to their ordinary occupations. Both appellants were required to cease to train (and therefore no longer receive fees for training, or prize money).
Against this, the respondents submitted that the terms of AHRR 183 impliedly excluded the right to be heard. It was put thus in oral address: "[T]he express power to suspend is conferred pending an inquiry. In other words, that's what happened and that seems to be, in our submission, an exclusion, by necessary implication, of any right to be heard prior to suspension. There is no doubt that there is a right to be heard at the investigation of an inquiry. That was common ground. That's not been ever challenged. The reason her Honour made reference to Gageler J in Pompano, why we make reference to it in our submissions as well as to Kioa, one has to look at these questions in the round in the context of the whole of the procedure afforded to a person. And the starting point is obviously [rule] 183 and the important word is 'pending.'"
There are three reasons why I cannot accept those submissions. The first is that there is nothing like the clear language necessary to displace the obligation to accord procedural fairness. As Basten JA said, with the agreement of Spigelman CJ and Santow JA, in Commissioner of Police v Ryan [2007] NSWCA 196; 70 NSWLR 73 at [28], "[t]he fact that the statute does not expressly provide for prior notification of an application to an affected party is of little weight". The words on which the respondents rely are "[p]ending the outcome of an inquiry ... the Stewards may direct ... that a licence ... be suspended". Those words well answer the description of "indirect references, uncertain inferences or equivocal considerations" which Dixon CJ and Webb J regarded as insufficient in Commissioner of Police v Tanos [1958] HCA 6; 98 CLR 383 at 396. It is to be recalled that the regulation in question in Tanos in terms permitted the order to be made "immediately and ex parte if this seems to [the judge] necessary or desirable". The express language of an ex parte order was construed so as to be available only in exceptional or special cases. The language of AHRR 183 is much less clear than that which was insufficient in Tanos.
The second is that it is wrong to submit that the analysis has to be undertaken "in the round" or by reference to the "whole of the procedure". The invocation of what was said by Gageler J in Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 87 ALJR 458 as to the "overall process" was misplaced. It is one thing to look at the overall processes of a court, which include ex parte orders, for the purpose of determining whether an Act is contrary to essential notions of the State courts within the Australian legal system. It does not follow from the conclusion that a court can make orders ex parte, which of their nature exclude the hearing rule, and yet have an overall process which remains fair, that executive power may be exercised without notice contrary to the ordinary incidents of procedural fairness. The respondents' submission is inconsistent with a long line of authority, whose history was traced by Dixon CJ and Webb J in Tanos at 395-396, that clear language is required.
The third is that the contrast with a court order made ex parte and the suspensions issued by HRNSW in the present case is marked. An ex parte order will be for a limited time, rather than until further order, and a court will invariably permit a person directly affected by it to be heard as to why it should not be varied or set aside. Neither of those features, designed to minimise the unfairness of making an order without being heard, accompanied the licence suspensions on 30 April 2014; indeed, HRNSW refused to listen to the appellants' protests in the immediate aftermath of their licences being suspended.
This is not a case where a want of procedural fairness at the first stage of a multi-stage decision process may be "cured" by a full and fair hearing after a recommendation, or preliminary decision had been made, as discussed by McHugh JA in Carroll v Sydney City Council (1989) 15 NSWLR 541 at 548-549. The operative decision was made on 30 April 2014. Its effect was direct and immediate. Mr Day was served with a notice on 1 May and had to scratch one of his horses from racing in the second race at Goulburn the following day. The first appellant had been training 28 horses, the second appellant 16, when they were suspended. Both were required to transfer those horses to other trainers.
The duty to accord natural justice may be excluded where urgent action is required. But here it is necessary to distinguish between "powers which, by their very nature, are inconsistent with an obligation to accord an opportunity to be heard" and powers which may on occasion, but not always, need to be exercised urgently: Marine Hull and Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234 at 241; Commissioner for Police v Ryan [2007] NSWCA 196; 70 NSWLR 73 at [29]. The power to suspend the appellants' licences is in the second category. Moreover, even where statute mandates swiftness, such as the five days in Lisafa Holdings Pty Ltd v Commissioner of Police (NSW) (1988) 15 NSWLR 1, that has been insufficient to exclude the obligation to accord procedural fairness.
Although there was a focus in HRNSW's submissions and in the reasons for judgment on the relatively short probable duration of the suspension for the purpose of its "overall process" submission, that is a distraction. The question whether the valid exercise of the power is conditioned upon the obligation to accord procedural fairness does not depend on the particular facts of a case, but upon the nature of the power. The power to suspend is not invariably of short duration. When it was exercised, a stewards' inquiry was contemplated but a time had not been fixed (the evidence does not suggest that a time was fixed in respect of the second appellant prior to the commencement of proceedings on 9 May 2014).
The particular facts of a case do, of course, impact the content of any obligation to accord procedural fairness: it would be unrealistic, for example, to expect that procedural fairness will demand an oral hearing with cross-examination in respect of a proposed suspension for a week. But it is necessary to bear in mind what five Justices of the High Court said in Saeed at [47]: "the proposition that natural justice may, in some cases, require less does not lead to the conclusion that none is intended to be provided and that no consideration is to be given to what could and should be provided in an individual case."
Her Honour relied at [207]-[209] on the example given by Aickin J in Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; 137 CLR 487 at 515. The example given was that where there was "likely immediate detriment to the public", then it might be appropriate to issue a warning-off notice without notice "but limited to a particular meeting or meetings over a short period of time, coupled with a notice that the Commission proposed to make a long-term order on stated grounds and giving an opportunity for the person concerned to make representations on the matter to the Commission".
However, in fact Heatley supports the appellants, not the respondents. At 513, Aickin J considered that even though there might be occasions where a warning-off notice might need to be issued urgently, that was not "a sound basis for excluding altogether all the requirements which natural justice would otherwise require". Having confirmed that the duty to accord procedural fairness was not displaced, his Honour at 514 extracted a passage from Kitto J's reasons in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; 113 CLR 475 at 503-504 to the effect that the content of the obligation in any particular case is flexible and had been so regarded for many decades, and concluded: "It would not I think be in accordance with the requirements of natural justice to meet an emergency situation by an order such as was made in the present case, that is, an order made without notice and without opportunity to make representations, but which has the effect of excluding the applicant from all racecourses in Tasmania for an indefinite period."
Of course, an order made without notice and without any opportunity to make representations, excluding the appellants from training and driving throughout New South Wales for an indefinite period precisely describes the effect of HRNSW's suspension orders.
Moreover, after giving the example on which her Honour relied, Aickin J said that: "Fairness requires that the person affected should, save in an emergency, be given notice by the Commission of its intention to issue a warning-off notice and of the grounds for that proposed action and should be afforded an opportunity to make representations to the Commission on his own behalf, which it must consider before taking action. A notice effective for an indefinite period should not be issued without compliance with at least those procedural requirements."
Heatley thus confirms the basal distinction between the existence of the obligation to accord procedural fairness and its content. Moreover, the "emergency" exception in Aickin J's example was not applicable to the facts in the present case. Finally, even if it were, what HRNSW did went beyond what Aickin J would have countenanced, in that the order was of indefinite duration, and HRNSW did not permit those affected by it to be heard either before or after it was made.
Commissioner of Police v Ryan also resembles the present case in a number of respects. The power in question was one to close a hotel for a period of 48 hours where there was a significant threat or risk to the public interest, and a serious breach of the law had occurred, or was likely to occur. That is to say, for a strictly limited period of time, the exercise of the power denied the licensee of the ordinary commercially valuable rights available under the licence.
This Court held, in accordance with settled principle, that the obligation to accord procedural fairness was not excluded, although its content would be subject to the exigencies of the particular case: at [28]-[33] (Basten JA, Spigelman CJ and Santow JA agreeing).
There was nothing, so far as the evidence records, to prevent HRNSW or Mr Sanders from, say, informing Mr Day sometime between 15 April (when NMI advised the results, but suggested retesting), or alternatively 24 April (when NMI confirmed the test results) and 30 April that one laboratory had detected elevated levels of cobalt, and that HRNSW was considering suspending Mr Day's licences pending an inquiry in light of the results of the testing, subject to anything he might wish to say within the next (say) 24 or 48 hours. The same is true of Mr McDowell, although it is true that HRNSW only received the laboratory results for his horses on 28 April. Eight or nine weeks had elapsed since the horses had raced and no additional delay at all need have been involved.
Moreover, it appears from the evidence of Mr Sanders that there was no consideration of what procedural fairness might require in the particular circumstances of the appellants. To the contrary, his evidence was that the board members told him that "the usual approach [of immediate suspension] must apply".
It is not necessary, in order to resolve this appeal, to consider whether there was power to make a sufficiently clearly worded rule to exclude procedural fairness from the power to suspend pending inquiry. The Court heard no argument on that question, and it is inappropriate to express a view on it.

[17]

(b) Nothing that could have been said could have made a difference?

The first aspect of her Honour's alternative basis for upholding the decision (at [210]) turned on the application of Stead.
If there be a duty to accord procedural fairness, which was breached, but even so the defendant is "able to demonstrate that the [breach] could have made no difference to the result", then relief may be declined: Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 147. At 145 (the page to which the primary judge referred), the High Court said that "[i]t is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact". Similar language was repeated in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at [80] by Gaudron and Gummow JJ ("[i]t cannot be predicted that ... it would inevitably have had a result which did not involve an adverse finding with respect to the prosecutor's credit"). It is only where an affirmative conclusion is reached, that compliance with the requirements of procedural fairness "could have made no difference" that relief will be withheld: Bax v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 55; 75 ALD 34 at [18]. The emphasis given in those passages to "could" and "inevitably" is mine; it emphasises the difficulty of maintaining an exercise of power which was required to be, but which was not, procedurally fair.
The trial proceeded on the basis that neither appellant received any notice, or was permitted to be heard, prior to the exercise of the power. The appellants had served evidence directed to their attempts to be heard, by themselves and by their solicitor, in the hours after first learning of the suspension. It was common ground that HRNSW did not permit the appellants to be heard pending the inquiry (transcript 29 September 2014, p 31 lines 3-17). On that basis, evidence of the appellants' attempts to do so was excluded as irrelevant. In the course of so ruling, there was the following exchange (transcript 29 September 2014, p 28 lines 41-45): "SMALLBONE: My learned friends conceded that they didn't consult. It is of some use for your Honour to know that this was not an academic question, it was a real matter of concern. HER HONOUR: I would accept that to be the case."
However, by the end of the trial, HRNSW was contending that relief should be refused as a matter of discretion because it had not been shown that anything could have been said that could have made a difference. For example, in closing address, it was put (transcript 3 October 2014, p 272 line 27 - p 273 line 3): "BELL: ... it is significant that we don't really have my friend presenting by way of submission, or the plaintiffs saying in evidence what they would have said. What could have been said? ... [W]e have this evidentiary deficit. ... The cases do say there are some situations where you would expect some evidence of what would or could have been said to have been forthcoming."
In reply, the appellants criticised this submission in light of the conduct of the trial (transcript 3 October 2014, p 298, lines 24-29): "SMALLBONE: My learned friends made a submission about evidence. I just remind your Honour that my learned friend objected to a lot of evidence and it was rejected as irrelevant some of it on the basis of concessions ... I'd submit that to make the submission now about a want of evidence on those kinds of matters is not consistent with that approach that was taken ..."
Because of the way the case was run, it was wrong for her Honour to have acceded to HRNSW's objections to evidence and yet to have relied upon Stead in order to refuse relief in the exercise of her discretion. Secondly, there is an unwarranted dilution of "could" to "would" in the formulation of the test at [210]. It is no small thing to conclude that a procedurally unfair exercise of power should stand, when the hearing as to factual matters which the law ordinarily insists upon has not taken place. Finally, let it be assumed, favourably to the respondents, that the offence is one of absolute liability, that HRNSW was in possession of prima facie evidence of guilt, and that nothing could be said to engage AHRR 191(7). Even so, it does not follow that the outcome of hearing the appellants before deciding whether to suspend their licences in advance of an inquiry was preordained so as to amount to a "solemn farce": at [197]. It is not possible to be satisfied, in circumstances where trainers with some sixty years' experience between them, who maintained that they had done nothing wrong and had been pro-active in engaging with HRNSW and following that body's advice, that the suspension would necessarily have occurred. That could not be the case, unless HRNSW had validly fettered itself to its penalty guidelines such that the discretion conferred by AHRR 256(6) (which provides that "a conviction need not necessarily be entered or a penalty imposed") could in no circumstances be available, and very properly that was no part of HRNSW's case.

[18]

The second aspect of her Honour's discretionary refusal of relief turned on the existence of a right of appeal. True it is that the appellants had a right to approach the Racing Appeals Tribunal by way of an "appeal" from the suspension decision: Racing Appeals Tribunal Act 1983 (NSW), s 15B; Racing Appeals Tribunal Regulation 2010, r 9(1)(g). They were entitled to make a written application to seek a stay: Racing Appeals Tribunal Regulation 2010, r 14. They had no right to legal representation.
The existence of a right of appeal may influence the analysis in two ways. It may be contended that the existence of a right of appeal by implication denies the existence of a duty to accord procedural fairness. Alternatively, the existence of a right of appeal, in which a complaint as to a want of procedural fairness can be made, may be said to be a discretionary reason to withhold relief in a court's supervisory jurisdiction.
On a fair reading of her Honour's reasons, the right of appeal was invoked not to exclude the right to procedural fairness, but as a discretionary reason. That did not prevent HRNSW from contending that "the fairness of the overall process can also be seen having regard to the ability to make a stay application on appeal to the Racing Appeals Tribunal".
The question whether an appeal excludes the obligation to accord procedural fairness was considered in detail by McHugh J in Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22; 206 CLR 57 at [146], by reference to whether the decision is preliminary or final, whether it is public or private, the nature of the formalities required by the original decision, its urgency, the breadth of the appeal, and the nature of the interest. Those factors point in both directions in the present case: the suspension decisions were, in a sense, preliminary, although they had immediate effect and were publicised to the harness racing community. The suspension decisions were attended by no formality, seem not to have been particularly urgent, but were subject to full de novo appeal. But those factors are apt to distract from the ultimate question, which is whether the Legislature, by providing for an appeal, is to be taken to have cut down by implication the basal requirement that public power be exercised in accordance with procedural fairness? Once that is appreciated, there is force in the proposition that "the idea that a right of appeal, no matter how full, might provide evidence of a legislative intention to exclude natural justice is now untenable": M Aronson and M Groves, Judicial Review of Administrative Action 5th ed, Law Book Co, 2013, p 473; M Robinson, Judicial Review, Thomson Reuters, 2014, p 349. Absolute propositions are problematic, especially in this area, but about this particular regulatory regime, one can be quite confident. Where (as here) an appeal applies to a wide range of decisions, and especially where (as here) it is located in a different statute, there is no basis for concluding that the general right of appeal excluded an obligation to accord procedural fairness when HRNSW exercised its power to suspend a licence.
However, contrary to HRNSW's submissions, her Honour relied on the existence of an appeal as a discretionary reason to refuse relief. As much is confirmed by her citation of Walsh J's reasons in Forster v Jododex Australia Pty Ltd [1972] HCA 61; 127 CLR 421 at 427. In that respect, Walsh J was in dissent. Gibbs J considered that the declaratory relief would be "quicker, simpler and attended by less doubts" than the alternative statutory procedure favoured by Walsh J, and all other members of the Court agreed in this respect with Gibbs J. However, it is not necessary to consider in any detail the way in which relief in this Court's supervisory jurisdiction may be refused by reason of the existence of a right of appeal (as to which, see Meagher v Stephenson (1993) 30 NSWLR 736 at 738-739) as opposed to the declaratory jurisdiction considered in Foster v Jododex. It is sufficient to observe the appellants advanced a series of challenges to the validity of the AHRR and the Local Rule which could not have satisfactorily have been determined by the Racing Appeals Tribunal. Those challenges, although unsuccessful, were not said to be made colourably for the purpose of attracting the jurisdiction of this Court. In those circumstances it followed that her Honour erred in concluding that as a matter of discretion she would have refused relief on this basis.

[20]

Orders

It may be accepted for present purposes that the use of prohibited substances is a serious problem in harness racing as well as other competitive activities, and calls for strong measures, including the steps put in place by HRNSW in September and December 2013, and January 2014. For the reasons given above, the errors which occurred throughout the implementation of that process do not mean that the prohibition upon cobalt is inefficacious. However, it does not follow from the perceived seriousness of the problem that basal considerations of fairness, recognised by the law for centuries, are to be set aside.
The appeal must be allowed and the orders made on 14 October 2014 set aside. The decisions made by HRNSW to suspend the licences of the appellants on 30 April 2014 should be set aside. The consequence is that the appellants are able, if they wish, to train and drive. There is no need, in light of these reasons, for declaratory relief. Although the appellants sought injunctive relief preventing the holding of the inquiries (presumably, on the assumption that other aspects of their challenge succeeded), it will be clear from the foregoing that there is no basis for doing so. The challenges to the AHRR and Local Rules advanced by the appellants have failed. The timing of inquiries will be a matter for HRNSW.
I turn to the question of costs. The appellants have succeeded in demonstrating a denial of procedural fairness. They should not have had their licences suspended in the way that occurred. On the other hand, they have failed in the majority of the issues that were litigated on appeal. Each of the issues on which they failed may fairly be described as weak. Rather than confining their challenge to the suspensions, the appellants expanded the dispute to include attacks upon the rules regulating their industry. For that reason, the relief ordered by this Court falls far short of that sought by the appellants in these proceedings.
The appeal was heard in a single day, although in order to do so the Court sat for 45 minutes longer than it ordinarily would. However, most of the time occupying the hearing, and most of the parties' submissions, were directed to grounds on which the appellants failed.
Thus, grounds 1, 2, 3, 6 and 7 were "clearly dominant", in terms of both the time they occupied, and the appellants' forensic goal of striking down the regime as a whole, rather than merely the suspensions of their licences. In those circumstances, it is appropriate to depart from the ordinary order that successful appellants obtain their costs: see the principles restated by Allsop P, Beazley JA and Hoeben J in Hawkesbury District Health Service Limited & Anor v Patricia Chaker (No 2) [2011] NSWCA 30 at [13] and more recently in Doppstadt Australia Pty Ltd v Lovick & Son Developments Pty Ltd (No 2) [2014] NSWCA 219 at [17]-[19]. In such cases, an apportionment will be carried out on a broad brush basis; mathematical precision is illusory: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [36]. An appropriate order, reflecting the appellants' limited success, is that the respondents pay half of the appellants' costs of the appeal.
This Court is not well placed to deal with the costs at first instance. In part that is because (appropriately, and in accordance with the obligation in r 51.29, Pt 51 of the Uniform Civil Procedure Rules 2005 (NSW) to include only those documents which are relevant and necessary for the appeal) a great deal of material relevant to issues fought and lost at first instance was not included in the appeal books (that includes large amounts of the documents tendered, and most of the transcript).
The parties are entitled to be heard as to the re-exercise of the costs discretion. However, it is appropriate to say the following, in case it may avoid the need for further argument about costs. It may well be that this is an appropriate case for there to be no further order as to costs at first instance, the primary judge's order as to costs having been set aside. It is not possible, without the benefit of submissions and with an incomplete knowledge of the course of the trial, to express anything other than a tentative view on the point; however, the parties are presently better placed to assess that than am I. If they do not hold that view, then they are free, if they choose, to apply in accordance with r 36.16 of the UCPR for an order as to costs at first instance. If they do so, their submissions should indicate their position as to whether that question can be determined by this Court (as it usually would), or whether in the particular circumstances of this case, it should be remitted to the primary judge.
I propose these formal orders:
To the extent it is necessary to do so, grant leave to appeal.
Appeal allowed.
Set aside the orders made at first instance on 14 October 2014, and in lieu thereof, order that the decisions made by Harness Racing NSW to suspend the appellants' licences on 30 April 2014 be set aside, and that the summons otherwise be dismissed.
Order the respondents to pay 50% of the appellants' costs of the appeal.

[21]

Annexure Australian Harness Racing Rules Determination of prohibited substance 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 (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 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). (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, 5a-estrane-3b, 17a-diol in urine (including both the free substance and that liberated from conjugates) at a concentration equal to or less than that of 5(10)-estrene-3b, 17a-diol in urine (including both the free substance and that liberated from its conjugates). (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 (including both free testosterone and testosterone liberated from its conjugates): (i) in geldings: at a concentration of 20 micrograms per litre in urine. (ii) in fillies and mares: at a concentration of 55 micrograms per litre in urine. (iii) in fillies and mares that have been notified as pregnant so as to comply with Rule 103B at any concentration. (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) Theobromine at a mass concentration of 2.00 milligrams per litre in urine. (k) Cobalt at a concentration at or below 200 micrograms per litre in urine. (3) The following are not prohibited substances: - antimicrobials (antibiotics) and other anti infective agents but not including procaine penicillin - antiparasitics approved and registered for use in horses - ranitidine - omeprazole - ambroxol - bromhexine - dembrexine - registered vaccines against infectious agents - orally administered glucosamine - orally administered chondroitin sulphate - altrenogest when administered to fillies and mares (4) A trainer must notify the Stewards no later than 1 hour prior to the scheduled starting time of a race if the trainer's horse has been treated with Antimicrobials (antibiotics and other anti infective agents) except Procaine Penicillin, Vaccines and antisera for the prevention of disease, or Mucolytics within the preceding 7 days. (5) A trainer who fails to comply with sub-rule (4) is guilty of an offence.