Day v Sanders; Day v Harness Racing New South Wales

Court of Appeal (NSW)|2015-08-05|Before: Basten JA, Leeming JA, Simpson JA, Adams J, Adamson J

Background to the Harness Racing Rules

In September 2013 Harness Racing NSW took steps to control the use of cobalt compounds administered to horses prior to races. That was effected by changes to rules promulgated by Harness Racing NSW making the presence of cobalt at a concentration above 200 mcg/l in the horse's urine a prohibited substance, giving rise to an offence under the Australian Harness Racing Rules, as adopted in New South Wales.
Because the construction of the specific rules depends upon their particular legal status, it is necessary to identify the context in which the rules were made. The control and regulation of harness racing is governed by the Harness Racing Act 2009 (NSW). Harness Racing NSW is a body corporate constituted under that Act. [1] It is a body corporate which does not represent the Crown and is not subject to direction or control by the government. [2] It is said to consist of five members, appointed by the Minister and recommended by a selection panel established by the Minister. [3]
The functions of Harness Racing NSW include control, supervision and regulation of harness racing in this State and the registration of clubs, horses, owners, trainers and drivers. [4] It has power to do all things necessary or convenient to be done in the exercise of its functions. [5] The purpose of its registration functions is to ensure that individuals are fit and proper persons, having regard to the need to protect the public interest as it relates to the harness racing industry. [6] Harness Racing NSW has power to employ staff and engage consultants, but may also arrange for the use of the staff or facilities of the equivalent bodies having control of greyhound racing and horse racing under the Thoroughbred Racing Act 1996 (NSW). Harness Racing NSW is given power to cancel the registration of any owner, trainer or driver of harness racing horses and to disqualify such a person, either permanently or temporarily. [7] It may also suspend for such term as it thinks fit any right or privilege conferred on such a person by the Act or the rules. [8] However, those powers of cancellation, suspension and disqualification (identified in s 21) may only be exercised for disciplinary purposes or for the purposes of occupational health and safety. [9]

Procedural background

The local rule with respect to cobalt levels was promulgated on 16 December 2013. The charge with respect to Mr Day's horse, Benzi Marsh, arose from a race which took place on 24 February 2014 at Goulbourn. The charges in relation to horses trained by Mr McDowell, Chevals Charlie and Twilightdancer, arose from two races conducted at Bankstown on 28 February 2014.
Having received advice from the Australian Government National Measurement Institute that urine samples above the limit had been detected in each of those horses, Mr Sanders as the Chairman of Stewards, advised each of the applicants on 30 April 2014 that his "training and driving licence" had been suspended "until the further investigation and/or inquiry is concluded."
On 6 May 2014 Mr Day was advised that the inquiry with respect to his matter would take place on 21 May 2014, with the result that the interim suspension would have lasted for three weeks. On 9 May 2014 each applicant commenced proceedings in the Supreme Court challenging what became known as the interim suspension orders. The holding of the inquiry was adjourned to allow the applicants to challenge the validity of various rules, including the rule rendering cobalt in the urine above the specified level to be a prohibited substance. The proceedings were heard by Adamson J over five days in September and October 2014: judgment was delivered expeditiously on 14 October 2014. [17]
The summons filed on 9 May 2014 challenged various rules, including the adoption of rr 188-188A and 190, as "ultra vires and void" or as "contrary to public policy". The summons sought a declaration that those rules were invalid and, consequentially, that the interim suspension order was invalid. It also sought an order prohibiting the stewards from proceeding with the proposed inquiry. The thirteenth prayer for relief was for a declaration that r 190 "does not create a disciplinary offence of absolute liability."
It is not necessary to refer to the amended points of claim, except to note that they ran to 191 paragraphs over 26 pages, a factor which could have consequences for any argument based on issue estoppel. The present respondents did not seek alternative declarations. On 14 October 2014 the Court dismissed the summons; that was the only order made with respect to the relief sought by the applicants.
By a notice of appeal filed on 21 October 2014, the applicants sought largely the same relief which had been sought before the primary judge. The case was given expedition, being heard on 18 November 2014 and decided on 8 December 2014. [18] The appeal considered and dismissed challenges to the validity of rr 188A, 90, 90A, 91 and 183(d). A challenge with respect to the construction of r 188A was also dismissed. The appeal was upheld, but only with respect to one issue, namely the validity of the interim suspension order (which would probably have expired, absent the otherwise unsuccessful proceedings, on 21 May 2014 when the inquiry was due to be heard). There is one other aspect of the first decision of this Court which should be noted: ground 5 in the notice of appeal had alleged error on the part of the primary judge in holding that r 190(4) excluded a defence of honest and reasonable mistake of fact. As Leeming JA explained in the first judgment: "[130] At first instance, the plaintiffs contended that the defence was available, and the defendants that it was not. The submissions were advanced in the abstract, without any precise articulation of what might be said to constitute the defence, and in order to buttress their respective submissions about procedural fairness. The appellants accepted, properly, that this ground fell away if they were otherwise right as to procedural fairness. [131] This appeal has been granted very extreme expedition. The proper construction of AHRR 190(4) (a) is important, (b) is unnecessary to decide in order to resolve this appeal, and (c) has emerged as a collateral issue divorced from any factual content. It is inappropriate to address it."
It was the finding of Adamson J with respect to the operation of r 190, not overturned in this Court, which was said to give rise to either an issue estoppel or res judicata, precluding the applicants from further challenge.
The immediate effect of the first judgment of this Court was to require that, if Mr Sanders proposed to impose an interim suspension order, the applicants would be entitled to an opportunity to say why such an order should not be made.
On 9 December 2014, the day following the delivery of judgment in this Court, Mr Sanders wrote to both applicants. The letter noted that since the initial letter of 30 April 2014, a second certificate had been obtained confirming the excess cobalt in the urine of the respective horses, which, it was said, amplified the concerns of the stewards noted in the earlier letter as the reason for imposing an interim suspension. The letter concluded: "Show Cause HRNSW invites you, or legal representatives on your behalf, to make any submissions or representations in writing, by no later than 4.30pm on Thursday 11 December 2014, as to why Rule 183 should not be applied, and your license suspended pending the commencement of the Inquiry on 22 December 2014. If we do not hear from you or your legal representatives in that timeframe the decision will be made without considering any submissions on your behalf and without further notice to you."
A similar letter was sent to Mr McDowell except that, in his case, the question of suspension did not arise because his licence had expired and the issue was whether it should be renewed.
Solicitors for both applicants responded on 11 December 2014 setting out reasons why no interim suspension order should be made.
On 12 December 2014 Mr Sanders wrote to Mr McDowell indicating that his licence would be renewed, and further noting that the question of suspension would be dealt with on the afternoon of Monday, 15 February 2015. The letter further advised that submissions relating to a claim of apprehended bias with respect to Mr Sanders' involvement in the process would also be considered at that time.
On 15 December 2014 the applicants commenced proceedings for damages against Harness Racing NSW, alleging defamation and negligent misstatement. On that afternoon, Mr Sanders wrote to the solicitor for the applicants rejecting the allegation against him of apprehended bias and determining that the licence of each should be suspended immediately, pending determination of the inquiry on 22 December 2014. (It will be necessary in due course to return to the allegations of bias and the responses given by Mr Sanders.)
Although the inquiry commenced on 22 December 2014, it was not concluded on that day and was stood over for further hearing in early January. On 12 January 2015 the stewards constituting the panel, one of whom was Mr Sanders, delivered a decision rejecting the application that the Chairman (Mr Sanders) disqualify himself from the inquiry. The reasons for rejection will be considered further in due course. The letter concluded with a direction that the applicants appear at the resumption of the inquiry on Tuesday, 27 January 2015 at 11am (Mr Day) and 2pm (Mr McDowell).
On 16 January 2015 the applicants appealed to the Racing Appeals Tribunal against the refusal of Mr Sanders to recuse himself.
A right of appeal to the Racing Appeals Tribunal ("the Tribunal") arose under s 15B of the Racing Appeals Tribunal Act 1983 (NSW) ("the Tribunal Act"). That provision confers a right of appeal on any person who is "aggrieved by any of the following decisions", which include "a decision of a steward of HRNSW." [19] A view appears to have been taken by the Tribunal that a decision as to the constitution of the panel, and in particular the dismissal of the recusal application, did not constitute a "decision" for the purposes of s 15B(1). Whether or not that was correct, the applicants did not appeal those decisions. Rather, on 23 January 2015, the applicants filed a summons for judicial review in the Supreme Court seeking orders quashing the decision of the stewards made on 12 January 2015 (refusing the recusal application) and the interim suspension order made on 15 December 2014. The summons also sought a declaration that the stewards panel could not continue with Mr Sanders as a member, because he was affected by apparent bias. On the same day, presumably ex parte, an urgent injunction was granted staying the stewards' inquiry. The injunction was expressed to operate until 2pm on Wednesday, 28 January and the matter was stood over before the duty judge in the Common Law Division at 10am on that morning. The parties agreed to a stay of the inquiry pending the outcome of the summons proceedings.
The summons was listed for hearing before Adamson J on 25 February 2015, judgment being delivered on 9 March 2015. [20] That judgment, being the subject matter of the present application for leave to appeal, dismissed the summons.
The allegation of apprehended bias having been rejected, an officer with Harness Racing NSW forthwith sent a letter to each of the applicants directing that each attend an inquiry, commencing at 10.30am on Thursday, 12 March 2015 (Mr McDowell) and at 10am on 13 March (Mr Day).
The following day, being Tuesday 10 March, the applicants filed a summons seeking leave to appeal from the judgment of Adamson J. That course provided a basis for a further application for an interlocutory injunction with respect to the stewards' inquiry. However, no such application was made in this Court. Indeed, the following day the applicants filed a further summons in the Common Law Division seeking similar relief to that sought before Adamson J, together with an order that the proceedings be removed into the Court of Appeal. The specific relief claimed was (a) a declaration that r 190 was an offence of strict liability; (b) a declaration that the defence of honest and reasonable mistake is available in an inquiry concerning an allegation of a breach of r 190; (c) a declaration that the stewards did not have jurisdiction to find a breach of r 190 on the basis that it was an absolute liability offence, and (d) an order restraining Harness Racing NSW from exercising any powers in relation to an inquiry into the applicants, pending the determination of the proceedings.
This last step involved a possible abuse of process. However, prior to commencement of either proceeding, the solicitors for the applicants had written to Harness Racing NSW foreshadowing their intentions. In an affidavit of 11 March 2015, in support of the fresh summons filed in the Common Law Division, their solicitor specifically noted the filing of a summons seeking leave to appeal from the judgment of Adamson J. The affidavit also noted a communication from the solicitors for Harness Racing NSW indicating that the inquiry scheduled for 12 and 13 March 2015 would be limited to certain preliminary matters and would not involve the finalisation of the liability phase of either inquiry.
Why, in those circumstances, it was necessary for relief to be claimed in the Common Law Division at all was not explained. However, the summons issued on 11 March came before Adams J on the same day. In an ex tempore judgment, he declined to grant injunctive relief but referred "the proceedings in the summons" to this Court.
Given that there was a decision (or possibly two decisions) of Adamson J rejecting the argument that a defence of honest and reasonable mistake of fact was available, it was right that Adams J declined to address that issue. Either the matter would be addressed in this Court, or it would not. Whether it was necessary or appropriate to refer to this Court so much of the summons as sought relief in respect of those substantive questions need not be determined: neither party has challenged the referral decision and subject to one qualification, it would appear to be of little moment.
The qualification relates to a point which does not appear to have been fully appreciated by the applicants, namely that the interlocutory restraining order sought in the summons was, in effect, referred to this Court. That course was appropriate, given the pending application for leave to appeal from the second judgment of Adamson J, but no step was taken in this Court to pursue such relief, even after referral of the summons from the Common Law Division. Rather, and perhaps in consequence of a degree of confusion as to the proper procedural course, the applicants filed a summons in this Court on 13 March 2015 seeking leave to appeal from part of the decision of Adams J, "being the order dismissing the application for a declaration restraining the respondent from exercising any powers in relation to the inquiry … pending the determination of these proceedings."
It is true that the orders entered on 12 March 2015, following the judgment of Adams J, did expressly refuse a restraining order, but they also referred "this matter" to the Court of Appeal. From the issue of the summons on 10 March to the hearing on 11 March, to the entry of orders on 12 March and the application for leave to appeal on 13 March, the matter has proceeded with extraordinary speed, not to say undue haste. One might think that if solicitors or counsel had paused for a moment to consider what was being done, the futility of the exercise might have been appreciated. Unfortunately, that did not happen.
Other things had happened in the meantime. On the day following the hearing before Adams J, counsel sought an adjournment of the stewards' inquiry with respect to Mr McDowell. The adjournment was refused, but Mr McDowell did not attend. The stewards then proceeded with the inquiry and found him guilty in his absence. He was disqualified for four and a half years. The following day, similar steps were taken with respect to Mr Day. On 13 March, both were notified of the findings against them and on 13 March, both appealed to the Racing Appeals Tribunal. They sought a stay of the disqualification order pending determination of the appeal, an application refused by the Tribunal on 30 March 2015.
By that stage it must have been apparent to all concerned that the proceedings which had been before Adams J, but which from 12 March 2015 were pending in this Court, lacked utility. However, that was not so. On 11 May 2015 the applicants (represented by three counsel, including senior counsel) filed a summary of argument in support of their application for leave to appeal from the judgment of Adams J.
Although counsel did not seek to file submissions in support of the appeal, nor address orally at the hearing of the matters listed before this Court, the application for leave to appeal from the orders made by Adams J was not abandoned. Nevertheless, it is a patent futility and should be dismissed.
With the addition of one further matter, the background circumstances, both procedural and factual, have been sufficiently outlined. The additional matter is the laying of charges against each of the applicants by the stewards for a contravention of r 187. That rule made it an offence to fail to attend an inquiry when directed to do so by the stewards. The failure of Mr McDowell on 12 March and Mr Day on 13 March to attend otherwise than by briefing counsel to appear on an adjournment application, was alleged to constitute a contravention of r 187. The applicants were given an opportunity to make submissions in relation to the charge, which each did on 16 March 2015. On 26 May 2015 the stewards found each guilty of a breach of r 187 and imposed an additional disqualification, of three years six months with respect to Mr McDowell and three years three months with respect to Mr Day. The disqualification decisions were made on 6 May 2015 and were the subject of appeals to the Tribunal filed on the same day.

Issues in this Court

The issues for consideration fall into two categories, namely (a) those relating to the proper construction of r 190 and (b) those relating to the apprehension of bias on the part of Mr Sanders. However, there is a third issue as to whether relief by way of judicial review is available in this Court against a decision of the stewards, there being a full right of appeal to the Tribunal. The issues should be addressed in that order because the nature of the inquiry will be of immediate relevance to the question of apprehended bias. The answer to the third question will also depend on the statutory scheme.

(a) Introduction

The matters relevant to the proposed defence were threefold. First, as noted above, the respondents contended that the construction issue was either a matter of res judicata or at least issue estoppel between the parties and should not be addressed by this Court. There are three reasons to reject that proposition. One is that a summons seeking to have the issue determined was referred to this Court by Adams J, a procedural order which has not been challenged by the respondents. A second reason is that, as all parties accepted for the purpose of addressing the allegation of bias, the latter issue could not properly be addressed without understanding the issues which were to be determined at the stewards' inquiry. The third reason is that, to the extent that the issue was determined by Adamson J and not disturbed in the first appeal, that outcome was largely a function of the high degree of expedition granted to the proceedings (favourably to the applicants) and the manner in which the submissions were presented on the first appeal, which meant that, although raised by the notice of appeal, the issue was not determined. If necessary, it would no doubt be possible for the applicants to seek to reopen the first appeal in order to have the issue determined.
For these reasons, the respondents' objection to the issue being determined should be rejected.
The second matter related to the substantive issue of construction; in this regard, both the relief sought by the applicants and the argument in this Court were afflicted by a devotion to labels. It is unhelpful to identify the issue as whether r 190 provided for "strict" or "absolute" liability, except in so far as those labels reject the possibility that the elements of the offence include intention, recklessness, negligence or a particular state of awareness on the part of the person charged with the offence.
The distinction sought to be drawn was in fact between the availability of a defence of "honest and reasonable mistake of fact" and the absence of such a defence. That takes the matter a stage further, although it still involves the assumption of alternative approaches based on an imprecise characterisation. In dealing with that formulation on the first appeal, Leeming JA noted that submissions had been advanced in the abstract "without any precise articulation of what might be said to constitute the defence". [21]
The third matter said to arise related to a supposed consequence of the adoption by Adamson J of a construction involving absolute liability. If that were correct, the applicants submitted, the rule would be ultra vires the Harness Racing Act. How that could be is doubtful, because the construction of the rule should take into account the statutory basis for it.

(b) Construction of r 190

Rule 190 is set out at [10] above. Its construction depends upon two separate steps. The first, being the general approach to the construction of any document, is to understand the meaning of the text in its context. The second is to identify whether there are extraneous influences, usually in the form of presumptions, which will affect the ordinary meaning of the language. The relevant presumption relied on in the present case is one which finds its home in the construction of statutes creating offences, namely that, "[i]f the purpose of the statute is to add a new crime to the general criminal law, it is natural to suppose that it is to be read subject to the general principles according to which that law is administered." [22] The relevant principle, taken from the judgment of Dixon J in Proudman v Dayman, was that "an honest and reasonable belief in a state of facts which, if they existed, would make the defendant's act innocent affords an excuse for doing what would otherwise be an offence." [23]
In Proudman v Dayman the offence was that of permitting a person to drive a car on a road when the driver did not hold a driver's licence. The act of permitting a person to drive was undoubtedly required to be an intentional act; as explained by McTiernan J: [24] "In my opinion the defendant was rightly convicted because upon the true construction of the section her guilt did not depend on the question whether she knew or believed on reasonable grounds that the driver was not the holder of a licence. She was guilty because it was proved that he was not the holder of a licence and that she did permit him to drive the car on a road."
Returning to the circumstances posited by Dixon J, namely a statute adding a new crime or offence to the general criminal law, and the supposition as to the operation of general principles, his reasoning continued: [25] "But other considerations arise where in matters of police, of health, of safety or the like the legislature adopts penal measures in order to cast on the individual the responsibility of so conducting his affairs that the general welfare will not be prejudiced. In such cases there is less ground, either in reason or in actual probability, for presuming an intention that the general rule should apply making honest and reasonable mistake a ground of exoneration, and the presumption is but a weak one."
The present case does not involve the addition of a new offence to the general criminal law: it involves the creation by a regulatory body of an offence for breach of the rules governing the industry. While it is true that the available penalties include fines and deprivation of livelihood, the regulatory scheme bears a closer relationship to professional discipline than to the general criminal law. Indeed, it bears an even closer relationship to the law regulating sporting activities, although neither side took the court to that area of the law. [26] Disregarding analogous areas, the fact that the rule does not add a new offence to the criminal law further weaken any statutory presumption beyond the effect noted by Dixon J in Proudman v Dayman in relation public health and safety measures.
In that circumstance, there is limited benefit to be found in discussing cases which involve the addition of a new offence, or new form of prohibition, to the general criminal law, including He Kaw Teh v The Queen [27] and CTM v The Queen, [28] to which the Court was referred. When considering the proper operation of a statutory provision which is silent as to the precise nature of the mental element required for an offence, it may be asked whether it would assist the purpose of the legislative scheme to put a person under strict liability or whether it can be said that, absent some conscious activity which may promote observance of the regulations, "there is no reason in penalizing him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim." [29]
In the present case that inquiry requires attention both to the rule-making power in the Harness Racing Act and the rule itself. So far as the statute is concerned, the rules were made, not by the Governor pursuant to the general regulation-making power (in s 48), but by Harness Racing NSW, pursuant to s 10, which relevantly provided: 10 Powers of HRNSW (1) 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.
The relevant function was identified as that set out in s 22(1), which provided: 22 Rules in relation to harness racing (1) HRNSW may make rules, not inconsistent with this Act or the regulations, for or with respect to the control and regulation of harness racing.
There is no apparent reason to understand s 22(1) as precluding the creation of offences of "strict" or "absolute" liability. Nor is the conferral of power to adopt or incorporate rules promulgated by other bodies, [30] without limitation as to content, conducive to an implied limitation, the full scope of which was not identified in submissions.
Turning to the rules, there are two circumstances which speak strongly, even decisively, against the proposition that a trainer will not be liable for a contravention of r 190 if he or she held an honest and reasonable belief that the horse had not consumed sufficient cobalt to result in an excess of the prescribed level in the horse's urine. The first factor is the requirement of sub-r (4) that the offence is committed by a trainer "regardless of the circumstances in which the prohibited substance came to be present in or on the horse." That language is inconsistent with the availability of a defence of reasonable precautions having been taken; if it would not be a defence to demonstrate the taking of reasonable precautions, it is difficult to understand how it could be a defence to believe that reasonable precautions had been taken.
Secondly, the provision of two certificates certifying the presence of a prohibited substance in urine is stated to be "conclusive evidence of the presence of a prohibited substance" and conclusive evidence that "the horse was presented for a race not free of prohibited substances", being the language of r 190(1). The evidentiary value of certificates is qualified by the terms of sub-r (7): Evidentiary certificates 191. … (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.
The assumption underlying the scheme of r 191 is that two properly obtained certificates are sufficient in themselves to provide conclusive evidence of the offence, unless it can be shown that the method by which they were obtained was materially flawed, in which case they do not "establish an offence". The express statement of such a proviso, with no reference to any other basis for justification or excuse, is powerful evidence that no other defence was intended: these two provisions taken together are decisive in their effect.
There are further considerations which support this view. First, the form of r 190(1) and (2) is significant; by contrast, for example, with r 196A which says that "a person shall not administer or cause to be administered to a horse any prohibited substance …", r 190 is expressed in mandatory but impersonal terms, namely "[a] horse shall be presented for a race free of prohibited substances". Sub-rule (2) is premised on a single condition, namely that the horse is presented otherwise than in accordance with sub-r (1). In other words, the circumstance of the horse is expressed to be the objective precondition to the existence of an offence. As in Proudman v Dayman, there is an activity which may well involve some mental element, namely the act of presenting a horse for a race. Whether a trainer would be liable in circumstances where the horse was removed from its stable without the trainer's knowledge or permission and presented for a race by a person who had no legal authority to take such a step, raises a different question from that which arises in the present case. It need not be considered further.
The second consideration which supports the strictness of the regime is the nature of the licensing scheme. Pursuant to Pt 4 of the Rules, the "Controlling Body" (which in this case is Harness Racing NSW) has power to regulate by licence "any activity connected with the harness racing industry." [31] Part 4 then provides that there be licensing for drivers, trainers, stable hands, stud masters and artificial breeding technicians. Without attempting to identify the range of obligations imposed on the trainer, it is sufficient to note that the trainer is responsible for ensuring that all persons carrying out activities of a stable hand are licenced as stable hands, [32] that the temporary transfer of a horse is approved in advance by the stewards, [33] that the horse is not moved from its approved location without prior approval of the stewards, [34] that a trainer shall adequately condition, prepare and supervise horses trained by that trainer, [35] and, with respect to therapeutic substances, shall maintain a log book recording details of all treatments administered to any horse in the trainer's care. [36] It is clear that, as with any sport, and particularly sports using non-human animals, the public interest requires strict measures to identify unacceptable performance enhancing substances and to control or prevent their administration.
The existence of such regulatory offences, even in the area of driving motor vehicles, is now far stricter than it was in the days of Proudman v Dayman and the evidentiary mechanisms available to a prosecutor, providing conclusive evidence of guilt, are also commonplace: see, for example, the discussion of the South Australian legislation with respect to a prescribed concentration of alcohol in the blood of a driver in Police v Dunstall. [37]
The applicants called in aid a remark by Gleeson CJ in Strathfield Municipal Council v Elvy [38] that "it is not obvious to me that the public has an interest in punishing people for honest and reasonable mistakes of fact." That proposition was transmogrified by Hunt CJ at CL in Griffin v Marsh [39] into the proposition that, "the public has no interest in punishing people for honest and reasonable mistakes of fact: Strathfield Municipal Council v Elvy. [40] "
These propositions do not assist the applicants. First, it is wrong in principle to extract such statements from their specific contexts and confer on them the status of pronouncements at a high level of generality. Both, it may be noted, were made in the Court of Criminal Appeal, in relation to criminal offences. Even more tellingly, the observation by Gleeson CJ in Elvy was directed to an offence (involving voting by a member of council who had a pecuniary interest in a proposal) which expressly provided a defence based on ignorance of the nature of the proposal. The statement was made in rejecting a submission that the statutory defence should be read down so as to prevent a defendant raising an honest and reasonable, but mistaken, belief as to the facts, in circumstances where there was some ambiguity as to the scope of the defence.
Griffin v Marsh involved an offence against a taxation law, for failing to answer a question or produce a document. Hunt CJ at CL rejected out of hand the proposition that failing to answer a question could be subject to a defence of honest and reasonable mistake. The comment about the public interest related to the failure to produce documents. However, the conclusion ultimately reached was that such a defence was not open in relation to either limb of the offence.
It follows that neither of these cases provided any support for the applicants' position. One might add that courts should be cautious about identifying where the "public interest" lies in circumstances where there are undoubtedly conflicting interests and where the enforcement of a legitimate public interest may depend on contestable views about alternative measures. In the present case, there is a legitimate interest of every participant in harness racing (including the general public who bet on races) in a "level playing field" involving "clean" participants. As with all sports, there is a legitimate argument that these conditions can only be created by the imposition of absolute liability on the human participants.
A proper reading of r 190(2) is that it imposes on a trainer an absolute responsibility for the horse presented for a race being free of prohibited substances with the result that, if the trainer presents a horse that does not satisfy that condition, he or she is guilty of an offence.

In the event that r 190 was held to create an offence of "absolute liability", to which the defence of honest and reasonable mistake of fact was not available, the applicants contended that the rule was invalid. That was because it did not conform to the requirements of the rule-making provision in the Harness Racing Act.
The short answer to this contention is that the construction of the rule depends upon the power conferred by the Act. There being no implied constraint of the kind invoked by the applicants within the Harness Racing Act, so as to limit the operation of the rule, there is by parity of reasoning no such limitation which would render the rule, broadly construed, invalid.
None of this is to say that the state of mind and the reasonableness of the applicants' conduct is irrelevant, but merely that it is irrelevant to the question of liability. Rather, its relevance is limited to the question of penalty. How it might apply on penalty does not arise in the present case, if only because the applicants presented no evidence on the question of penalty.

Apprehension of bias

There are reasons, in a case such as this, to give careful attention to the nature of the decision-making body and its functions, as the submissions for the applicants recognised. However, it is necessary first to identify the basis on which it was contended that Mr Sanders was the subject of a reasonable apprehension of bias. The factual elements were as follows: (a) Mr Sanders was the principal architect and promulgator of the restrictions on the use of cobalt and hence had an interest in ensuring that the rules were seen to be enforceable and were indeed enforced; (b) Mr Sanders had expertise in the administration of substances, their effects on urine levels, their effects on performance and means of detection and was thus an expert witness; (c) Mr Sanders had given advice to the applicants (or at least Mr Day), the terms of which were in dispute, hence making Mr Sanders a potential witness in the proceedings; (d) Mr Sanders had been responsible for imposing interim suspensions on the applicants, presumably on the assumption that no other penalty would ultimately be available, and (e) apart from the fact of giving advice, Mr Sanders had an interest in upholding the correctness of his advice, which might mean rejecting Mr Day's evidence as to what he in fact did.
Other matters did not involve facts, but Mr Sanders' view of the law, including, for example, whether there was available to the applicants a defence of honest and reasonable mistake. That issue has now been resolved and cannot form a relevant basis for the present application. Further, because the legal issues have been resolved in favour of the conclusion that the offences were made out by the provision of two certificates (the validity of which was not challenged), none of these issues could have affected the findings as to liability, even had a defence been raised before the stewards' panel.
There remains an issue as to whether the circumstances should be found to invalidate the decisions with respect to penalties. Assuming for present purposes that the facts identified were sufficient to give rise to a proper basis for not allowing Mr Sanders to determine questions of penalty, was the decision of the panel invalidated by his presence, in circumstances where neither applicant appeared before the panel or put any submission in relation to penalty? Even if those decisions were invalid, should the Court intervene in circumstances where the applicants have a right of appeal, before an independent statutory tribunal, that process having been initiated?

Legal principles - apprehended bias

Before answering these questions, it is convenient to identify the relevant legal principles. The approach commonly adopted in this area of discourse is to identify the general approach which has been accepted with respect to judicial officers and apply such qualifications as may be thought to flow from the particular statutory scheme or the functions being exercised. However, as the High Court noted in the recent decision of Isbester v Knox City Council, [41] particular issues will arise where the apprehension is not based on pre-judgment, but on a conflict of interest. [42]
Cases involving potential conflicts of interest include Ebner v Official Trustee in Bankruptcy [43] (involving interests of a judge in shares in a bank which had an interest in the outcome of the litigation), Stollery v The Greyhound Racing Control Board [44] (apparent attempt to bribe the manager of an association, who was present at a hearing of the charge which he had initiated), and Dickason v Edwards [45] (in which a member of a friendly society was accused of insulting an officer of the society who then sat as part of the committee to hear the charge). Isbester itself was a case involving a challenge to a decision of a council panel to order the destruction of the appellant's dog where an officer who was an active participant in the panel decision had also been the prosecutor in proceedings against the owner in the magistrate's court for a series of offences arising out of attacks by the dogs. [46] The council officer was seen to be in a similar position to the interested officials in Stollery and Dickason. In each case the High Court held that the officer should not have participated in the decision-making process, or been present during deliberations leading to the decision.
The joint reasons in Isbester adopted the following principle from Ebner: [47] "The principle governing cases of possible bias was said in Ebner [48] to require two steps to be taken in its application. The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an 'interest' in litigation, the nature of that interest must be spelled out. The second requires the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits. As Hayne J observed in Jia Legeng, [49] essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making."
Gageler J adopted a similar approach stating: [50] "The test for the appearance of disqualifying bias in an administrative context has often been stated in terms drawn from the test for apprehended bias in a curial context. The test, as so stated, is whether a hypothetical fair-minded observer with knowledge of the statutory framework and factual context might reasonably apprehend that the administrator might not bring an impartial mind to the resolution of the question to be decided. [51] Such statements of the test have nevertheless been accompanied by acknowledgement that the application of this requirement of procedural fairness 'must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making'. [52] "
After noting that the test might be differently expressed in order to accommodate decision-making processes over several stages or involving several participants, Gageler J returned to the standard formulation, noting that "the test for the appearance of disqualifying bias in an administrative context is to be understood to mirror the test for apprehended bias in the curial context in two important respects." He continued: "[59] … The first is that it is an 'objective test of possibility, as distinct from probability'. [53] The second is that its application necessarily involves three analytical steps. Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way. [54] [60] Where the factor identified at the first analytical step concerns one person who is a participant in a multi-stage decision-making process or in a multi-member decision-making body, the second analytical step can be seen to divide into two elements: articulation of how the identified factor might affect that person individually, and articulation of how that effect on that person individually might in turn affect the ultimate resolution of the question within the overall process of decision-making. It has accordingly been emphasised that, if an appearance of disqualifying bias is hypothesised to have resulted from conduct or circumstances of a person who is not the ultimate decision-maker, 'then the part played by that other person in relation to the decision will be important'. [55] "

Application of principles

An essential element in each of these statements is, as appears in the joint reasons, "the articulation of the logical connection between [the interest of the decision-maker] and the feared deviation from the course of deciding the case on its merits." [56] Two factors are significant in that respect. First, each of the examples presented by the cases discussed above involved an evaluative judgment on the part of the decision-maker. Secondly, although in two cases the person disqualified had a direct interest in the outcome (being the recipient of a possible bribe, or the object of the insulting conduct) in Isbester itself the only involvement of the disqualified person was in a professional capacity as the person preparing the prosecution brief in respect of the offences. (Nor was she the actual decision-maker with respect to the destruction of the dogs.)
In the present case, once it has been accepted that proof of liability depended purely upon the two certificates, together with the absence of any defence based on mistake or lack of awareness of established facts, it is not reasonable to identify an apprehension of bias with respect to the finding that the charges were proven. There was no logical connection between Mr Sanders' prior activities set out above and the relevant decisions.
With respect to the question of penalty, a different question arises. On the one hand, because the applicants did not seek to present any case in mitigation of penalty, there was, again, no relevant fact finding exercise to be undertaken. On the other hand, it could be said that the actual penalty imposed involved an evaluative judgment in two respects. One was the unwillingness to accept the possibility of any penalty other than disqualification; the second concerned the period of disqualification.
Addressing the interlocutory order first, the panel, in refusing to disqualify the Chairman (which was dealt with by the full panel), stated: "17. Paragraph (c) of the letter of 18 December asserts that Stewards have prejudged the issue of penalty by ruling out one possible penalty option, in their reasons for imposing an interim suspension dated 15 December 2014. 18. This issue needs to be understood in context. The decision made by Stewards on 15 December 2014 was for a different purpose. The applicants' solicitors had urged Stewards not to impose an interim suspension, for reasons including that an appropriate penalty for any breach of AHRR 190 might be to impose no penalty pursuant to Rule 256(6). In the same submissions, the applicant's solicitors indicated that their clients would be 'pleading not guilty' to any such charge. 19. The Stewards' reasons of 15 December 2014 in relation to the potential applicability of any penalty pursuant to Rule 256(6) were for the purpose of assessing whether an interim suspension was justified. The conclusion drawn by the Stewards for that limited purpose only, that such a penalty appeared insufficiently likely to justify avoiding the usual interim suspension cannot be understood to represent a closed mind on the ultimate question of penalty. 20. The HRNSW penalty guidelines, of which any fair minded observer for the purpose of assessing potential bias would be aware, suggests that the starting point for any offence against Rule 190 for a Category 1 substance, is a disqualification of five years for a first offence. Even the lowest category of substance shows that any penalty is a disqualification with a starting point of 12 months. 21. The NSW Racing Appeals Tribunal has consistently held that the minimum starting point for any prohibited substance offence, is one of disqualification. The fair minded impartial observer would also be understood to be so aware."
This reasoning is persuasive: it is consistent with the approach adopted by the High Court to interlocutory applications in Michael Wilson & Partners Ltd v Nicholls. [57]
So far as the second issue was concerned, the material before the Court on the judicial review application did not establish clearly whether there was a significant evaluative judgment to be made. As appears from the foregoing extract from the stewards' reasons on the recusal application, it seems to have been assumed that cobalt was a "category 1 substance". The applicants submitted that the assumption itself involved an element of pre-judgment. The reasons continued: "25. There have been numerous Stewards Inquiries involving this substance in which Stewards have received veterinary advice that the substance should be deemed as a Class 1 substance under the HRNSW Penalty Guidelines. Not limited to, but due to Cobalt having the effect of an hypoxia inducible factor (HIF)-1 Stabiliser, and is prohibited by AHRR 190A(2) it is referred to in the definitions of a Class 1 category of substance. The Racing Appeals Tribunal has recently endorsed Cobalt as a Class 1 substance. 26. Stewards are not aware of any veterinary evidence, opinion, or argument to the contrary. The applicants did not, in their detailed submissions in relation to the AHRR 183 issue, submit that Cobalt should not be regarded as a Class 1 substance."
No doubt there was room to depart from a guideline in the present case (as in fact occurred, the penalties being lower than the guideline for a first offence) however, the applicants did not present any evidence or submissions supporting a penalty lower than that imposed, with the consequence that the element of evaluation was not significant.
If the foregoing reasoning is sound, the applicants have failed to make out a case for judicial intervention in respect of the penalty hearing. (No separate argument was addressed to the penalties for failure to attend.) Against the possibility that the reasoning is unsound, it is appropriate to consider what steps should have been taken.
In Isbester, Gageler J referred to a multi-stage decision-making process as arguably requiring a different form of test: [58] "The test in that alternative form might be stated as whether a hypothetical fair-minded observer with knowledge of the statutory framework and factual context might reasonably apprehend that the question to be decided might not be resolved as the result of a neutral evaluation of the merits. Neutrality in the evaluation of the merits cannot for the purpose of that or any other test be reduced to a monolithic standard; it necessarily refers to the 'kind or degree of neutrality' that the hypothetical fair-minded observer would expect in the making of the particular decision within the particular statutory framework. [59] What must ultimately be involved is 'an assessment (through the construct of the fair-minded observer) of the behaviour of a person or persons in a position to exercise power over another, and whether that other person was treated in a way that gave rise to the appearance of unfairness being present in the exercise of state power'. [60] "
A similar approach was adopted in Twist v Randwick Municipal Council. [61] Like Isbester, Twist involved a local council decision, indeed of a significantly more serious kind, involving the demolition of the appellant's home. The demolition order was made without affording him a prior hearing, but his attempt to gain relief was rejected on the basis that he had a statutory right of appeal to a District Court judge, which he had failed to exercise within time. The precise basis of the reasoning in Twist, which varied between different members of the Court, need not be explored. [62] In The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers' Federation, [63] Mason J (with the agreement of Murphy, Aickin and Wilson JJ) stated: [64] "In Twist v Randwick Municipal Council, this Court held that the existence of a full statutory right of appeal on facts and law was indicative of a legislative intention that the citizen's only right of redress against the council's failure to give him an opportunity to be heard before making a demolition order was by way of appeal."
The fifth member of the Court in Marks, Brennan J, found that there was no denial of natural justice before the Presidential Member of the Australian Conciliation and Arbitration Commission and hence it was not necessary to consider, "whether and in what circumstances a hearing before and an order of confirmation made by the Full Bench might cure a denial of natural justice in proceedings before a Presidential Member, and to consider whether an order of confirmation supersedes an order made by a Presidential Member". [65]
Aronson and Groves note that this Court, in Hill v Green [66] considered a different analysis was available. After identifying the reasoning in these cases, Fitzgerald JA stated: [67] "In both Twist and R v Marks a single statute provided for both the initial determination and the right of appeal. The approach adopted in those cases is consistent with the rule of statutory construction that a remedy provided by an enactment for the enforcement or breach a right created by the enactment is ordinarily exclusive: Barraclough v Brown [1897] AC 615. It is unnecessary for present purposes to embark on a detailed discussion of the rule, which modern authority in this State tends to treat as merely empowering the Court to refuse any remedy other than that provided for by the Act creating the right in its discretion…."
After referring to further authorities, some, but not all of which, post-dated Marks, Fitzgerald JA then said: [68] "In my opinion, the position can be broadly summarised as follows. In the absence of 'plain words of necessary intendment', an initial decision-maker is required to provide procedural fairness and his or her failure to do so will involve legal error. However, the relief available in respect of such an error is ordinarily confined to any statutory right of appeal, provided that an appeal is adequate to provide the appellant with the procedural fairness to which he or she is entitled. A full appeal on facts and law will ordinarily be adequate for that purpose, even if the appeal involves routine forensic disadvantages compared to a 'first instance' re-determination. … Nonetheless, the Court retains a discretion to grant other relief if that is justified in the circumstances of the case. For example, a person charged with a disciplinary offence which involves criminal conduct should not be obliged to give evidence and expose himself or herself to the risk of self-incrimination…".
It is appropriate to apply that reasoning in this statutory context. The reason why the statutory scheme may be seen to provide an exclusive remedy derives in part from the Harness Racing Act and the functions conferred on stewards; secondly, practical considerations arising from the exercise by stewards of their functions in regulating harness racing and, thirdly, the provision for appeals under the Racing Appeals Tribunal Act.
With respect to the Harness Racing Act, the functions conferred on Harness Racing NSW, pursuant to Pt 3, Div 1 of the Harness Racing Act, engage broad controls over the industry. The provision in s 22 for rule-making includes rules "conferring on stewards … the same functions as are exercisable by [Harness Racing NSW] under Division 1". [69] Those powers, identified in rules discussed above, impose on stewards a wide variety of functions, including expansive controls over owners, trainers and drivers, for disciplinary and occupational health and safety purposes. Thus stewards are given control of the day-to-day regulation of harness racing, including the enforcement of rules relating to prohibited substances and disciplinary procedures where contraventions are identified. This scheme is not only inconsistent with a clear division between investigative functions and the exercise of powers to impose penalties for breach, but also envisages speedy determination of any identified breaches.
Thirdly, s 15B of the Tribunal Act expressly identifies a right of appeal against a decision of a steward. That right is restricted by the Racing Appeals Tribunal Regulation 2010 (NSW), relevantly, to the suspension of a licence granted under the rules, but not so as to exclude these cases. Section 16 of the Tribunal Act states: 16 Procedure on appeal (1) An appeal to the Tribunal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the decision appealed against was made, may be given on the appeal. (2) Proceedings on an appeal are to be held as in open court before the Tribunal.
The Tribunal is constituted by a "qualified person" appointed by the Minister, upon the recommendation of the Attorney-General. [70] The term "qualified person" means "a judge of any court in New South Wales, a retired judge of any court … or a person qualified to be appointed as a judge of the District Court." [71] The Tribunal is entitled to seek expert advice from any person having special knowledge of and experience in the racing industry. [72] In short, these provisions ensure an appeal as of right on fact, law and discretion, by way of a new hearing, to an independent tribunal constituted by a qualified lawyer with the appropriate standing in the legal profession and at least qualified for appointment as a judge.
As hinted at by Brennan J in Marks, in the passage cited above, where the Tribunal conducting a fresh hearing makes a decision, it will supersede the decision of the stewards, in accordance with the reasoning in Wishart v Fraser. [73] Where the right of appeal has been invoked, it is not appropriate for the applicants to seek to challenge the original decision in this Court, whilst maintaining an entitlement to have it set aside and replaced by a decision of the Tribunal. Thus, assuming there is a right of judicial review of the decisions of the stewards, the case is at least a proper one, and arguably a necessary one, in which to refuse relief.

Conclusion

Given the nature of the issues involved, and in particular the practical value in dealing with the points of statutory construction and the validity of the rule, it is appropriate to grant leave to appeal. Nevertheless, the appeal must be dismissed and the applicants, having lost on all material issues, must pay the respondents' costs in this Court.
The Court should make the following orders: (1) With respect to the summons issued in the Common Law Division on 10 March 2015 and removed into this Court by order made on 11 March 2015, dismiss the summons and order that the applicants pay the respondents' costs of the summons, both here and in the Division. (2) With respect to the application seeking leave to appeal from the judgment of Adams J of 11 March 2015, dismiss the summons with costs. (3) With respect to the summons seeking leave to appeal from the judgment of Adamson J given on 9 March 2015, (a) grant the applicants leave to appeal; (b) direct that the applicants file the draft notice of appeal contained in the joint red appeal book filed on 26 June 2015 within seven days; (c) dismiss the appeal; (d) order that the applicants pay the respondents' costs of the summons and the proposed appeal.
LEEMING JA: I agree with the orders proposed by Basten JA and, subject to what follows, with his Honour's reasons. The following supplementary reasons are addressed to (a) the respondents' reliance on res judicata, issue estoppel and abuse of process, (b) the construction of r 190, and (c) the appellants' complaint of apprehended bias.

Res judicata, issue estoppel and abuse of process

The primary judge heard argument (twice) as to whether r 190 accommodated a defence of honest and reasonable mistake, and concluded that it did not. That occurred in two distinct contexts. First, in late 2014, her Honour was required to determine whether the power to suspend Messrs Day and McDowell pending the inquiry by the stewards attracted an obligation to give them an opportunity to be heard. [74] Messrs Day and McDowell submitted that three matters tended to confirm that the power did attract such an obligation, the first of which was that an offence under r 190 was not one of absolute liability. [75] The respondents contended that there was no such obligation for four reasons, the first of which was that the offence under r 190 was one of absolute liability. [76] Her Honour concluded that there was no obligation to give Messrs Day and McDowell an opportunity to be heard before exercising the power to suspend pending a steward's inquiry. In reaching that conclusion, her Honour held that a defence of reasonable mistake of fact was not available to the offence created by r 190. [77]
An appeal was expedited and heard the following month. [78] Her Honour's conclusion that procedural fairness did not require that the plaintiffs be given an opportunity to be heard before exercising the power was overturned, the appeal was allowed and her Honour's orders set aside. One ground of the appeal was the question of construction of r 190. Basten JA has reproduced what was said at [130]-[131] as to why the construction of the rule was not definitively resolved.
The second occasion on which the construction of r 190 arose was in the 2015 proceeding. [79] It was determined by her Honour in the same way.
The respondents contended that Messrs Day and McDowell could not argue the point in this Court, either because of a res judicata (notwithstanding that the primary judge's first judgment had been set aside and the second one was subject to appeal) or issue estoppel (notwithstanding that the point was expressly left open by this Court) or an abuse of process.
It is sufficient to state that I cannot see any reason preventing these parties obtaining, for the first time, an appellate decision on the construction of the rule. In order to support the respondents' contrary contention, some submissions were made that this Court's judgment in Forge v Australian Securities & Investments Commission [No 2] [80] was expressed too broadly when it stated that the orders of an appellate court were "now the source of any res judicata estoppels". [81] Given the circumstances in which the issue came to be formulated, (principally in oral submissions when the appeal was heard, which fell short of a submission that Forge was clearly wrong), and considering that there have been full submissions on the question of construction, the better course is to deal with the question on its merits.

The construction of AHRR 190

Rule 190 is in the following terms: "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."
Unlike r 188A, which was made by non-lawyers in circumstances described by this Court in 88 NSWLR 594 at [26]-[30], and which as originally made contained an obvious error, r 190 is a national rule and appears to have been drafted with care.
Reliance was placed upon the mandatory language ("shall be presented") in sub-rule (1) and its passive voice. Reliance was also placed upon the deeming provisions in sub-rules (2) and (3). Those matters alone would not suffice to exclude a defence of honest and reasonable mistake of fact. As was pointed out, there are decisions in which equivalently mandatory language has been construed so as to reserve the defence: see for example, Hawthorne v Morcam Pty Ltd. [82] Little turns upon the passive voice. Here, sub-rule (1) identifies an event, namely, the presentation of a horse for a race, and then sub-rules (2) and (3) attach liability to one or two persons if the circumstances in those sub-rules arise.
It is sub-rule (4) which is directly addressed to the present question, namely, whether there is some mental element to the offence created by sub-rules (2) and (3). The words "regardless of the circumstances in which the prohibited substance came to be present" are squarely directed to excluding what would ordinarily be regarded as exculpatory circumstances (including lack of knowledge or a defence of honest and reasonable mistake of fact). It is, indeed, difficult to give the words of sub-rule (4) any meaning falling short of unequivocally excluding such a defence. The submission was made that the words exclude reliance upon conduct (for example, whether reasonable precautions have been taken), but fall short of excluding a mental element of the defence. I do not agree. There is no sharp distinction between conduct and belief; the latter is ordinarily based upon the former, and once it be accepted that an offence is committed regardless of whether the conduct was exculpatory, it is difficult to see how an offence would not be committed because the trainer had a belief that his or her conduct was exculpatory. Ordinarily the basis for an honest and reasonable mistake of fact is conduct that, considered objectively, supports a belief that no offence was committed.
Other considerations support such a construction of r 190. One is the fact, prominent in the respondents' submissions, that there was a discretion in r 256(6) not to enter a conviction even though an offence has been found to be proven, or alternatively, not to impose a penalty (I return to this below, for a different purpose). Another is that this construction accords with the decision of an enlarged Full Court of the Supreme Court of Western Australia in Harper v Racing Penalties Appeal Tribunal of Australia [83] on a rule with similar language and similar purpose. A third is that in r 191(7), provision is made expressly to detract from the otherwise conclusive effect of an evidentiary certificate.
For those reasons, which substantially accord with those given by Basten JA, I agree that there is no "defence" of honest and reasonable mistake of fact to a charge of contravening r 190.

Apprehension of bias

A reasonable person would consider that Mr Sanders formed the view in advance of the hearing that the discretion in r 256(6) would not be exercised to avoid disqualification. His letter of 15 December 2014 recorded a determination by him of a "high unlikelihood that Rule 256 will have any application if a prohibited substance offence is proven", while the reasons of the panel of 12 January 2015 (reproduced by Basten JA at [100]) are expressed in even stronger language. Yet if it were established that Messrs Day or McDowell had indeed followed advice from Harness Racing NSW, then there would be at least an arguable case for a favourable exercise of discretion, bearing in mind too that this was a first offence, contrary to a rule which had only recently been created.
However, given both men's failure to attend the hearings, the occasion for the exercise of discretion never arose. I agree with Basten JA that where, as here, the appellants have invoked their right of appeal, it is not appropriate to maintain a challenge to the initial decision, including on the grounds of apprehended bias, and it is unnecessary to say anything more as to whether such a challenge would be made out if appropriately raised.
SIMPSON JA: I agree with the orders proposed by Basten JA, and with his Honour's reasons. I also agree with the additional remarks of Leeming JA.

Endnotes

Harness Racing Act, s 4.
Harness Racing Act, s 5.
Harness Racing Act, ss 6 and 7.
Harness Racing Act, s 9(2).
Harness Racing Act, s 10.
Harness Racing Act, s 11(1).
Harness Racing Act, s 21(1)(a) and (b).
Harness Racing Act, s 21(1)(g).
Harness Racing Act, s 21(3).
Harness Racing Act, s 22(1).
Harness Racing Act, s 22(2)(j).
Rules, r 15(1)(e).
Rules, r 15(1)(k).
Rules, r 181.
Rules, r 189(1).
D C Pearce and R S Geddes, Statutory Interpretation in Australia (Butterworths, 8th ed, 2014) at [2.7].
Day v Harness Racing New South Wales [2014] NSWSC 1402.
Day v Harness Racing New South Wales (2014) 88 NSWLR 594; [2014] NSWCA 423.
Tribunal Act, s 15B(1)(b).
Day v Sanders [2015] NSWSC 173.
88 NSWLR 594 at [130].
Proudman v Dayman (1941) 67 CLR 536 at 540 (Dixon J).
Proudman at 540.
Proudman at 543.
Proudman at 540.
See, eg, D Thorpe et al, Sports Law (OUP, 2009) Ch 8 "Doping".
(1985) 157 CLR 523.
(2008) 236 CLR 440; [2008] HCA 25.
Lim Chin Aik v The Queen [1963] AC 160 at 174; referred to by Gibbs CJ in He Kaw Teh at 530.
Section 23(2), set out at [21] above.
Rule 90(1).
Rule 90A(2.9).
Rule 119A(1).
Rule 119C(1).
Rule 225.
Rule 190B.
[2015] HCA 26; 89 ALJR 677.
(1992) 25 NSWLR 745 at 750F.
(1994) 34 NSWLR 104 at 108G.
Elvy at 750-751.
[2015] HCA 20; 89 ALJR 609.
Isbester at [33]ff.
(2000) 205 CLR 337; [2000] HCA 63.
(1972) 128 CLR 509.
(1910) 10 CLR 243.
Isbester at [3] and [10].
Isbester at [21].
Ebner at 345.
(2001) 205 CLR 507 at [183].
Isbester at [57].
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 75 ALJR 982 at [27]-[30]; McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209; [2], [71]-[72], and [234].
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [99], citing Ebner at [4]. See also McGovern at [6]-[13].
Ex parte H at [28].
Cf Ebner at [8].
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438; [2002] HCA 51; at [22].
Isbester at [21].
(2011) 244 CLR 427; [2011] HCA 48 at [71]-[73].
Isbester at [58].
Jia Legeng at [187], [192]; see also at [100].
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [3].
(1976) 136 CLR 106.
But see M Aronson and M Groves, Judicial Review of Administrative Action (LawBook Co, 5th ed, 2013) at [7.350].
(1981) 147 CLR 471.
Marks at 484.
Marks at 499.
(1999) 48 NSWLR 161; [1999] NSWCA 477.
Hill at [162].
Hill at [164].
Harness Racing Act, s 22(2)(j).
Tribunal Act, s 6.
Tribunal Act, s 4(1), qualified person.
Tribunal Act, s 8A.
(1941) 64 CLR 470.
Day v Harness Racing New South Wales [2014] NSWSC 1402.
Day at [183].
Day at [184].
Day at [185]-[190].
Day v Harness Racing New South Wales (2014) 88 NSWLR 594; [2014] NSWCA 423.
Day v Sanders [2015] NSWSC 173.
(2007) 69 NSWLR 575; [2007] NSWCA 42.
Forge at [3].
(1992) 29 NSWLR 120.
(1995) 12 WAR 337.

Amendments 19 October 2015 - [6] Clarifying outcome. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 October 2015

Racing Appeals Tribunal Regulation 2010(NSW)

(1985) 157 CLR 523 Hill v Green (1999) 48 NSWLR 161; [1999] NSWCA 477 Isbester v Knox City Council [2015] HCA 20; 89 ALJR 609 Lim Chin Aik v The Queen [1963] AC 160 McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Police v Dunstall [2015] HCA 26; 89 ALJR 677 Proudman v Dayman (1941) 67 CLR 536 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; 75 ALJR 982 Stollery v The Greyhound Racing Control Board (1972) 128 CLR 509 Strathfield Municipal Council v Elvy (1992) 25 NSWLR 745 The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers' Federation (1981) 147 CLR 471 Twist v Randwick Municipal Council (1976) 136 CLR 106 Wishart v Fraser (1941) 64 CLR 470 Texts Cited: M Aronson and M Groves, Judicial Review of Administrative Action (LawBook Co, 5th ed, 2013)

Solicitors: Hilliard & Berry Solicitors (Appellants/Applicants) Cockburn & Co Solicitors (Respondents) File Number(s): CA 2015/72861; CA 2015/77237; CA 2015/80746 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2015] NSWSC 173 (Adamson J) Date of Decision: 09 March 2015 Before: Adamson J;Adams J File Number(s): SC 2015/22576; SC 2015/72844

HEADNOTE [This headnote is not to be read as part of the judgment] The harness racing industry in New South Wales is regulated under the Harness Racing Act 2009 (NSW) (the Act). An independent body corporate, Harness Racing NSW, was established to control and regulate harness racing. In December 2013 Harness Racing NSW adopted a new rule deeming cobalt in concentrations over 200 milligrams per litre in urine to be a prohibited substance (r 188A(2)). The local rules are to be read and construed together with the Australian Harness Racing Rules (the Rules). Rule 190 made it an offence for a horse to be presented for a race not free from prohibited substances. Dean Albert McDowell and Neil Anthony Day (the applicants) were licensed trainers. In February 2014 urine samples from horses trained by them were found to contain cobalt exceeding the prescribed levels. The applicants' licences were suspended on an interim basis. The applicants challenged the suspensions (imposed ex parte) and also the validity and scope of r 190. On 14 October 2014 Adamson J dismissed the challenge, holding that no defence of honest and reasonable mistake of fact was available. An appeal from this decision was allowed on the ground that the applicants had not been afforded procedural fairness, but did not address the findings on validity and construction of r 190. The stewards' inquiry was scheduled to be held on 22 December 2014. Prior to the commencement of the inquiry the applicants requested that the Chairman of the stewards' panel, Reid Sanders, recuse himself on the basis of apprehended bias said to arise from his involvement in the promulgation of r 188A(2) and from statements he had made to Mr Day in relation to cobalt levels. This application was refused. The applicants sought judicial review of that decision. On 9 March 2015, Adamson J dismissed the summons (recusal judgment), following which Harness Racing NSW ordered the applicants to attend hearings on 12 March (Mr McDowell) and 13 March 2015 (Mr Day). On 10 March 2015 each applicant filed a summons seeking leave to appeal from the recusal judgment and sought an interlocutory injunction with respect to the stewards' inquiry. The next day each applicant filed a further summons challenging the scope and validity of r 190 (in terms similar to those rejected by Adamson J in October 2014). On 11 March 2015 Adams J declined to grant injunctive relief, but referred the summons to the Court of Appeal. At the commencement of the stewards' inquiry (on 12 and 13 March) the applicants' lawyer sought an adjournment of the hearings. These applications were rejected and the panel proceeded to determine the matters in the absence of the applicants. Mr McDowell was disqualified for 4.5 years and Mr Day for 4 years. The applicants appealed their convictions and penalties to the Racing Appeals Tribunal. The issues for determination were whether: (i) the applicants were precluded from arguing the issues relating to r 190 (see (ii) below) either because of res judicata or issue estoppel; (ii) the defence of honest and reasonable mistake of fact was available under r 190 and if not, whether r 190 was a valid exercise of the rule-making power under the Harness Racing Act 2009 (NSW); and (iii) Mr Sanders was affected by apprehended bias. The Court of Appeal (Basten JA; Leeming and Simpson JJA agreeing) held, granting leave to appeal but dismissing the appeal: In relation to (i)

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