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[2025] NSWSC 355
General information, not legal advice.
Supreme Court of NSW
2025-04-15
Stern J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation:
Hearing dates: 2 April 2025
Date of orders: 15 April 2025
Decision date: 15 April 2025
Jurisdiction: Common Law
Before: Stern J
Decision: (1) The plaintiff’s amended summons filed 28 March 2025 is dismissed.
(2) The plaintiff is to pay the first defendant’s costs.
Catchwords: ADMINISTRATIVE LAW – judicial review – decision of Racing Appeals Tribunal – where horse tested positive to prohibited substances after a race – appeal by way of fresh hearing – where expert evidence given little weight – where expert was not cross-examined – where plaintiff contended that they were unaware that the Tribunal was contemplating certain adverse findings – whether plaintiff was denied procedural fairness – no denial of procedural fairness
ADMINISTRATIVE LAW – judicial review – failure to give reasons – where expert evidence given little weight – where plaintiff contended that the Tribunal did not give sufficient reasons – adequate reasons provided
Legislation Cited: Australian Harness Racing Rules, rr 15, 90, 90A, 181, 188A, 188B, 190, 299
Harness Racing Act 2009 (NSW), s 22
Racing Appeals Tribunal Act 1983 (NSW), ss 5, 17A
Cases Cited: Ausenco Operations Pty Ltd v Ferretti International Ottoway Pty Ltd [2020] SASC 46
Azzi v State of New South Wales [2024] NSWCA 169
Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576
Day v Harness Racing New South Wales (2015) 90 NSWLR 764; [2015] NSWCA 324
Demex Pty Ltd v McNab Building Services Pty Ltd (2023) 113 NSWLR 282; [2023] NSWCA 261
F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295
Gautam v Health Care Complaints Commission [2021] NSWCA 85
McDonough v Harness Racing Victoria [2008] VRAT 6
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Stowers v Minister for Immigration and Border Protection (2018) 265 FCR 177; [2018] FCAFC 174
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Texts Cited: Australian Government, Rural Industries Research and Development Corporation, The Pharmacokinetics of Equine Medications, (January 2012)
C Fenger and T Tobin, “Medication Migration: The Charles Town Naproxen Experience and Why It Matters to All Racing Jurisdictions”, The Horsemen’s Journal. 64(3)
Category: Principal judgment
Parties: Aaron Goadsby (Plaintiff)
Harness Racing New South Wales (First Defendant)
Racing Appeals Tribunal (Second Defendant)
Representation: Counsel:
D P Sheales (Plaintiff)
K Richardson SC / S Jeliba (First Defendant)
Solicitors:
Hammond Nguyen Turnbull (Plaintiff)
Cadre Moss (First Defendant)
Crown Solicitor for NSW (Second Defendant)
File Number(s): 2024/00412837
Publication restriction: Nil.
On 6 December 2023, a Harness Racing New South Wales (HRNSW) stewards’ inquiry was held in relation to the results of analytical tests on a post-race urine sample taken at Newcastle Raceway on 26 May 2023 from the horse Luvareschs, trained by the plaintiff. Upon analysis of the sample by the Australian Racing Forensic Laboratory (ARFL), phenylbutazone (PBZ) and its metabolites, oxyphenbutazone (OPB) and gamma-hydroxyphenylbutazone, were detected as being present. These are all prohibited substances (the Prohibited Substances) under r 188A of the Australian Harness Racing Rules (the Rules), made by HRNSW, the first defendant, under s 22 of the Harness Racing Act 2009 (NSW).
As he was then the holder of an A Grade trainer’s licence issued by HRNSW, the plaintiff was bound by those rules: rr 90(1), 90A, 299 of the Rules.
During the stewards’ inquiry (conducted under rr 15, 181 of the Rules) the plaintiff was charged with an offence against rr 190(1)-(2), (4) of the Rules which provide:
Presentation free of prohibited substances
(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.
…
(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.
“[the plaintiff], being the licensed trainer of the horse Luvareschs, did present that horse to race at Newcastle on Friday, 26 May 2023, not free of a prohibited substance, namely phenylbutazone and/or oxyphenbutazone and/or gamma-hydroxyphenylbutazone as reported by two laboratories approved by Harness Racing New South Wales.”
The stewards imposed a penalty of disqualification for three months, to commence immediately. That penalty was fully served by early 2024.
The plaintiff appealed against the penalty to the NSW Harness Racing Appeal Panel. On 2 February 2024 this appeal was dismissed.
The plaintiff then appealed to the Racing Appeals Tribunal of NSW (the Tribunal) constituted under s 5 of the Racing Appeals Tribunal Act 1983 (NSW) (the Tribunal Act). As was common ground, the role of the Tribunal was to determine the relevant penalty afresh having regard to the Rules and the evidence before it: s 17A(1) of the Tribunal Act.
The appeal was heard on 12 August 2024. Before the Tribunal, the plaintiff did not dispute that the offence was made out. Taking a different position from that he took before the stewards’ inquiry, however, he contended that the presence of the Prohibited Substances came about because of contamination which occurred at the racecourse, not at his stables. He contended, on this basis, that his culpability was lowered such that it was properly reflected in the imposition of a fine only: Tribunal reasons for decision (TD) [13].
In support of this contention the plaintiff relied upon two reports from each of Dr Major (dated 5 December 2023 and 3 May 2024), an equine veterinary surgeon, and Professor Tobin (dated 7 March 2024 and 10 May 2024), an equine veterinary pharmacologist. The reports of Dr Major assume particular significance in the proceedings before this Court. HRNSW relied upon a report from Mr Keledjian, the general manager of ARFL, who also gave oral evidence before the Tribunal, and a report from Dr Wainscott, a regulatory veterinarian employed by HRNSW. The evidence before the Tribunal also included the transcript of the hearing before the stewards, at which the plaintiff and Dr Wainscott gave evidence.
The Tribunal dismissed the plaintiff’s appeal.
By amended summons filed on 28 March 2025, the plaintiff seeks judicial review of the Tribunal’s decision. The plaintiff seeks an order that the Tribunal decision is quashed and that the matter is remitted to the Tribunal for fresh determination, and costs.
The second defendant, the Tribunal, filed a submitting appearance.
For the reasons set out below, the plaintiff’s application for judicial review is dismissed. It is thus unnecessary to consider the question of what, if any, utility there would have been in granting the relief sought by the plaintiff in circumstances where the period of disqualification imposed by way of penalty expired over a year ago.
“(1) In circumstances where neither the Second Defendant nor the First Defendant availed themselves to the opportunity to cross-examine Dr. Major, and where the First Defendant did not litigate any of sub-paragraphs (a) – (f) of this ground in final submissions, the Second Defendant denied the plaintiff procedural fairness by failing to afford the Plaintiff the opportunity to make further submissions in circumstances that the Second Defendant was considering each of the below recited findings that Dr. Major:
a. Had not explained why the OPB reading supports his opinion;
b. Had not explained what he meant by a ‘small dose’, resultantly a ‘small dose’ being rendered inherently vague, and entirely unexplained.
c. Had not explained what he meant by ‘very close’ to the time of racing, resultantly ‘very close’ being inherently vague, and entirely unexplained;
d. Had shifted from expressing his opinion by reference to a time ‘very close to the time of racing’ to a time ‘close to the time of testing’;
e. Holding the opinion that the contamination occurred ‘within 2 hrs of collection’ was inconsistent with Dr. Major’s opinion that the time of contamination ‘very close to the time of racing’;
f. Had given no consideration what the Plaintiff had said occurred at the Plaintiff’s stables the morning of the race, as opposed to what occurred at the racecourse.
(2) The Tribunal erred by failing to give sufficient reasons for the conclusion that Dr. Major’s evidence was of ‘little weight’.”
Luvareschs’ race was at 9.32 pm on the night of 26 May 2023 but the plaintiff also had a horse running in an earlier race, at 6.37 pm, that night. Whilst no finding was made as to this, and nothing ultimately turns on it, the plaintiff contended that Luvareschs arrived at the Newcastle Raceway between 4.45 and 5 pm that night but there was no direct evidence of this. Luvareschs won the race, starting as the $1.12 favourite. The plaintiff did not have a bet in the race. The post-race urine sample was taken at 9.53 pm. Upon analysis the Prohibited Substances were detected as being present in the sample.
PBZ is an anti-inflammatory substance widely used in equine medicine. The evidence before the Tribunal was that it acts on virtually every bodily system, but especially the musculoskeletal system, which brings it within the list of prohibited substances in r 188A(1)(a) of the Rules. As an anti-inflammatory, it also falls within the list of prohibited substances in r 188A(1)(b). As already set out, its metabolites are also prohibited substances under the Rules, r 188A(1)(c). Under the Rules, r 188B(3), it is provided that screening limits for certain therapeutic substances shall be promulgated by Harness Racing Australia. Under r 188B(2), as a minimum requirement, the initial screening test or screening analysis is to determine whether or not the prescribed substance exceeds the relevant screening limit. If so, the sample is to be further tested.
The screening limit for PBZ is set at 100 ng/ml in urine.
The concentration of PBZ identified in the ARFL analysis report was 308 ng/ml, well in excess of the screening limit. The concentration of OPB was reported at 76 ng/ml and gamma-hydroxyphenylbutazone was reported at 354 ng/ml. The analysis of OPB and gamma-hydroxyphenylbutazone was qualitative not quantitative and was used only to satisfy minimum requirements for identification: TD [39].
Before the stewards’ inquiry, the plaintiff said that four other horses in his stables had been treated with PBZ between 6 and 7 am on 25 May 2023. The dose was 5 cc, which equates to a 1 mg dose. As to why Luvareschs returned the positive result, he said that cross-contamination was “the only thing it can be”. His evidence before that inquiry included that, in the normal stable environment, Luvareschs was located near the other horses treated with PBZ, that it was highly likely that the horses would have been in contact, that it was quite possible that cross-contamination could have occurred “due to the fact [of] where the horses were after they were treated”, that the horses shared the jogging machine, the walker, the wash bay and the cross-ties and that the horses treated with PBZ would have gone onto the jogger and walking machine after the treatment. The plaintiff told the stewards’ inquiry that the jogger, the wash bay, the cross-ties, the walker and the stable environment were all potential causes of contamination. He also said that it was “more than likely” that Luvareschs was tied up next to one of the other horses after they were treated with PBZ.
Consistent with that evidence, the stewards found that the detection of the Prohibited Substances resulted from contamination within the plaintiff’s stable environment, most probably following the administration of PBZ to four horses other than Luvareschs.
Taking a different position from that taken before the stewards’ inquiry, before the Tribunal the plaintiff contended that the contamination of Luvareschs with PBZ most likely occurred at the Newcastle Raceway.
The Tribunal observed that, before the stewards’ inquiry:
“Nothing said by the Appellant went specifically to the possibility of the contamination having occurred at the racecourse within a short period before the race, a proposition which forms the basis of the present appeal.”
The plaintiff did not give evidence before the Tribunal or rely upon any factual evidence in support of his contention as to the timing and likely location of the event by which Luvareschs became exposed to PBZ. Rather, he relied solely upon the expert evidence of Dr Major and Professor Tobin, outlined above at [9], going to the timing of this. Neither Dr Major nor Professor Tobin was required for cross-examination. However, when asked whether she wished to cross-examine Dr Major or Professor Tobin, counsel for HRNSW said that she did not but “[w]e’ll make submissions as to the weight of their evidence.”
For its part, HRNSW contended that the plaintiff had not proved that contamination occurred at the Newcastle Raceway. It relied upon the oral evidence of the plaintiff and of Dr Wainscott before the stewards’ inquiry and a report from Dr Wainscott dated 12 April 2024. HRNSW also relied upon a report from Mr Keledjian, and his oral evidence before the Tribunal.
Before the Tribunal, the plaintiff’s key contention was that the fact that the reported level of OPB was less than that of PBZ meant that the Tribunal should be satisfied that Luvareschs became exposed to PBZ at the Newcastle Raceway and not at the plaintiff’s stables. The Tribunal ultimately did not accept this contention.
Correctly observing that the expert evidence assumed “considerable significance”, the Tribunal directed itself at TD [47] that:
“The evaluation of all of the evidence remains a matter for me. It follows that it is for me to determine what evidence to accept, what evidence to reject, and what weight should be attached to the evidence I do accept. In terms of the evaluation of expert evidence, and even though the rules of evidence do not apply, a relevant consideration will necessarily be the extent to which, and the terms in which, an expert explains the path of reasoning which resulted in the opinion expressed. As a matter of common sense, the expression of an opinion without an underlying explanation for its basis is likely to be afforded less weight than an opinion which is supported by the exposition of the reasoning process which led to it.”
The plaintiff did not contend that this direction was in any way erroneous.
For reasons that I will come to, the Tribunal placed “little weight” on the opinions of Professor Tobin and Dr Major: TD [48], and did not accept their evidence as to the likely time frames between Luvareschs becoming contaminated with PBZ and the testing having been carried out: TD [66]. Rather, the Tribunal accepted the opinion of Dr Wainscott that “the contamination is likely to have occurred within the 24 hour period prior to the collection of the sample, and that further refinement of the time is not possible”: TD [66]. On that basis the Tribunal found:
“66. … It follows that I am not able to accept the Appellant’s fundamental proposition that the contamination occurred after the horse arrived at racecourse to compete in the race. In my view, particularly in light of the Appellant’s own evidence before the Inquiry, there is a high likelihood that the contamination occurred at the Appellant’s premises. However, I am not satisfied that this is more probable than not.
67. It follows that the Appellant’s culpability falls within the second category identified in McDonough.
68. The practices adopted at the Appellant’s stables at the relevant time about which the Appellant gave evidence, particularly those which allowed facilities to be shared, were at odds with taking proper care against the possibility of contamination. They were also generally at odds with the terms of the Notice issued to industry participants. Whilst I accept that the Appellant has taken steps with a view to ensuring that the conditions at his stables properly address the danger of contamination, the necessity for both general and personal deterrence leads me to the view that the penalty imposed was appropriate.”
“at the conclusion of any evidence and plea the Tribunal is left in the position of having no real idea as to how the prohibited substance came to get into the horse. This may be with the trainer giving some explanation which the Tribunal is not prepared to accept or the trainer may simple concede that he has no explanation.”
As set out at [14] above, the plaintiff’s first ground of review alleges a denial of procedural fairness by the Tribunal in making the particularised observations or findings about the evidence of Dr Major in circumstances where Dr Major was not cross examined and (the plaintiff submits) HRNSW did not contend for most of those findings. In this regard, the plaintiff contends that he was “unaware that the Tribunal was contemplating making the adverse findings particularised”.
Two preliminary observations are apt. First, the “underlying purpose of the requirements of notice or disclosure as aspects of procedural fairness” is “to provide an opportunity for meaningful participation by the potentially aggrieved person and to enable the person fairly to respond to adverse matters”: Stowers v Minister for Immigration and Border Protection (2018) 265 FCR 177; [2018] FCAFC 174 at [44] (Flick, Griffiths and Derrington JJ). A meaningful opportunity to be heard entails that a party must be given the opportunity “of ascertaining the relevant issues” in the case: Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576 at 590-591 (Northrop, Miles and French JJ). It does not follow that the detail, or specificity, of the reasoning process ultimately deployed by the Tribunal in resolving relevant issues, of which the parties were well aware, must be signposted during the course of the hearing.
As Justice Doyle observed in Ausenco Operations Pty Ltd v Ferretti International Ottoway Pty Ltd [2020] SASC 46 at [61] (cited with approval by Kirk JA (Mitchelmore and Adamson JJA agreeing) in Demex Pty Ltd v McNab Building Services Pty Ltd (2023) 113 NSWLR 282; [2023] NSWCA 261 (“Demex”) at [33]), the requirements of procedural fairness may depend upon “the level of abstraction or specificity at which one articulates the issues in dispute”. As to this, Kirk JA held in Demex that “a reviewing court should view sceptically arguments involving high degrees of specificity”. Whilst that observation was made in a very different statutory context, it has resonance in the present case. The enquiry for the purpose of considering the plaintiff’s contentions as to procedural fairness is not whether the plaintiff had advance notice of the Tribunal’s precise criticisms of Dr Major’s evidence. Rather, the relevant question is whether the plaintiff was aware that a live issue before the Tribunal was the reliability of, and whether weight could be placed upon, the evidence of Dr Major. So to frame the issue recognises both the way in which the parties framed their contentions before the Tribunal and that the concern of the law is to “avoid practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] (Gleeson CJ).
Second, procedural fairness does not require a decision-maker to disclose what he or she is minded to decide so that the parties may have a further opportunity of criticising his or her mental processes before a final decision is reached. Nor does it require a “running commentary” of what the decision-maker thinks about the evidence that is given: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [48], citing Lord Diplock in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369; recently applied in Azzi v State of New South Wales [2024] NSWCA 169 at [81] (Kirk JA, Ward P and Leeming JA agreeing).
Having regard to these principles, a close examination of the way in which the proceedings were conducted before the Tribunal demonstrates that there was no procedural unfairness.
“that levels of phenylbutazone and its metabolites in the urine are dependent on the pH of the urine. If the urine’s alkaline, these substances will attain much higher levels because they are trapped in an alkaline urine as opposed to an acidic urine. We don’t have any information on the pH of the urine, but levels can vary considerably depending on urinary pH.”
Dr Wainscott was then asked how long it would take to get a two gram dose of PBZ out of a horse’s system, and when responding to this question, Dr Wainscott referred to a study (which in context was clearly the study from the Australian Government, Rural Industries Research and Development Corporation, The Pharmacokinetics of Equine Medications, (January 2012) (the RIRDC study)) where 12 horses were given repeated doses of PBZ over a five day period starting off with two grams twice a day on the first day. Dr Wainscott identified that in that study it was not until 48 hours after the five days of treatment that the levels of PBZ got down to the level identified in the urine sample from Luvareschs (having earlier in his evidence said that this took “the best part of 48 hours”). As to the significance of this study, Dr Wainscott identified that different formulations of PBZ may have different effects, referred again to the confounding effect of the pH of urine and said that the “whole situation in summary, I guess, is cloudy”.
Dr Wainscott was asked by the stewards whether anything could be drawn from the levels of OPB and gamma-hydroxyphenylbutazone. He responded “no”. He explained that urine pH can “affect the values quite markedly. And in varying amounts for each of those substances as well”.
Later in the stewards’ inquiry, Mr Hammond, solicitor for the plaintiff, put the following question to Dr Wainscott:
“Because this has got a parent drug of 300 and the oxyphenbutazone of only 76, that would lend support to the theory that this horse received a small ingestion of Bute close to the race rather than a therapeutic doping of it five days out? You’d agree with that?”
Dr Wainscott responded only to confirm that there was no question that Luvareschs was given a therapeutic dose by mistake. Notwithstanding that Dr Wainscott had not responded to all of the matters raised in the question, Mr Hammond did not take the question of the time frame of exposure further.
A fair reading of Dr Wainscott’s position before the stewards’ inquiry is that no conclusions could be drawn from the level of OPB as reported and that the confounding effect of the (unknown) pH of the urine sample and the many variables meant that it was difficult to draw conclusions in this case from the RIRDC study. This starting point meant that the issues of whether any conclusions could be drawn from the OPB level as reported or from the RIRDC study were very much live before the Tribunal.
In his report of 5 December 2023, Dr Major referred to the RIRDC study. In this report Dr Major extracted a table of the mean urine and plasma levels of PBZ and OPB both during the five days of treatment (taken immediately before administering the next dose) and for 216 hours thereafter. The table showed that the 12 horses in the study were given two grams of PBZ twice on day one and then one gram twice daily for 4.5 days.
I have extracted the table below, highlighted as it appears in Dr Major’s report:
As is immediately apparent from the table, over the five days of treatment, testing was carried out only once per day. There was thus no testing of urine within 24 hours of the first administration of PBZ. By the time two hourly testing was carried out, there had been a full five days of treatment, at doses well in excess of anything to which Luvareschs might have been exposed to by way of contamination.
Dr Major did not, however, confront this fundamental difficulty in his report. Rather, having extracted this table, Dr Major said:
“It is noteworthy that:
(I) The metabolite was, as would be expected, on each occasion in greater quantity [than] the original substance. This is to be expected as the substance is progressively metabolised in the body.
(II) The trough levels [meaning levels taken immediately before the dose was administered] recorded on the first day and a half, where the drug would be expected to be therapeutically active, are many times higher [than] the result recorded for this horse (308 ng/ml).
(III) At the time where the test horses’ average urine approximates the level of the sample in question (between 38 and 42 hours), their average major metabolite level was 2091.
The fact that the Goadsby horse had a OPB as low as 76 when the phenylbutazone was 308 ng/ml strongly suggests that the horse has been exposed to a small dose very close to the time of racing.”
That is the sum total of Dr Major’s reasoning on the question of the likely timing of exposure.
Dr Major also referred to a report by Fenger that indicated that horses can immediately trigger readily identifiable positive tests in post-race samples from urine contamination of their hay and bedding: C Fenger and T Tobin, “Medication Migration: The Charles Town Naproxen Experience and Why It Matters to All Racing Jurisdictions”, The Horsemen’s Journal. 64(3), p. 32, and a statement from Barker (with no citation) that “the major contaminants are nonsteroidal anti-inflammatory drugs, such as flunixin, phenylbutazone and naproxen, present in the soil in stalls, on stall surfaces”.
Without any further reasoning or explication, Dr Major concluded that:
“The most likely explanation for the results obtained in this horse’s urine is direct oral contact (licking or eating) an imperceptibly small quantity of phenylbutazone close to the time of testing.”
“It is most likely that the exposure event occurred close to the time of urinary sample collection, namely within three hours or less of the actual sample collection time.”
HRNSW relied before the Tribunal upon the report of 11 April 2024 from Dr Wainscott responding to the reports of Professor Tobin and Dr Major. Dr Wainscott observed that there was very limited literature available involving the study of urinary concentrations of PBZ and both of its metabolites. He identified that a paper by H Knych et al was the only paper of which he was aware that had reported urinary concentrations of all three substances, and that involved a single dose of two mg of PBZ to nine horses, with urinary samples taken after 24 hours, then at 48, 72 and 96 hours post treatment. At all measured times the concentration of the metabolites was greater than the concentration of the parent drug.
As to the RIRDC study, he observed first that once “se” (standard error) is converted to standard deviation by multiplying it by 3.46 (being the square root of the sample size of 12), it was clear that both in the RIRDC and the Knych study there were large degrees of dispersion around the mean values. Second, he observed that in the RIRDC study, at all measured time points, the concentration of the metabolites was greater than of the parent drug. Third, he said that the interpretation of the post-treatment OPB concentrations must “involve a degree of caution because of the ‘carry over effect’ of OPB concentrations being derived from previous treatments”. This is clearly a reference to the five days of treatment reported in the study.
He then said that:
“13. Nothing contained in the reports of Dr Tobin, Dr Major or the letter by Mr Reay [a witness who was ultimately not relied upon by the plaintiff] change any of my opinions expressed during the Stewards Inquiry. I believe the most likely source of exposure was at Mr [Goadsby’s] property for the following reasons:
a. Gloves were not worn when the horses were treated.
b. Mr Goadsby used the same cross ties for Luvareschs and the treated horses.
c. Oral administration of any paste formulation carries a risk of spillage acting as a source of contamination.
d. There were other possible sources of contamination through the sharing of equipment such as the jogger and sharing of swimming head stalls.
e. All the above potential sources of contamination were exacerbated by the fact that Mr Goadsby treated a total of 4 horses on or around 25th May 2023 in that shared environment.
…
- In conclusion:
• There is limited published data on which to make assumptions and, what data is available has a high measure of dispersion. Even the effect of urine trapping of phenylbutazone in an alkaline urine is highly variable as shown in Figure 6 on page 6 of Dr [Tobin’s] report.
• The study of [Knych] et al provides the most comparable data to the Goadsby situation.
• Assuming an oral route of ingestion of PBZ, the time of ingestion and amount ingested remain unknown.
• The urinary pH is unknown and as Dr Tobin points out in paragraph1.2 of his report, it is ‘notoriously challenging’ to correlate a urinary concentration to a plasma concentration. Therefore, in my view there is no reliable way to estimate whether or not a concentration of 308ng/mL of phenylbutazone in the urine would result in a plasma concentration of ‘well sub 100ng/mL’ as Dr Tobin opines in paragraph 1.9 of his report.
• Dr Tobin provides no supporting references or calculations explaining how he arrived at a timeframe for exposure of 3 hours or less.
• On this basis, I believe it is only possible to surmise that the exposure event most likely occurred less than 24 hours prior to the collection of the urine sample, and any further refinement of this timeframe is largely speculative.”
“[13] … The estimates for oxyphenbutazone and gamma-hydroxyphenylbutazone are not to be relied on as they are based on comparison with a single spiked control sample. The qualitative confirmation of oxyphenbutazone and gamma-hydroxyphenylbutazone, as urinary metabolites of phenylbutazone, is only to provide corroborative evidence that the horse was exposed to phenylbutazone.”
“[26] The Major Report and the Tobin Report are littered with speculation, and it is respectfully submitted that those reports fall far short of evidence upon which the Tribunal could comfortably make a finding that a contamination occurred at the racetrack.
[27] Whilst the expert evidence is seemingly lengthy, the substantive issues arising from the reports are not complex.”
The submissions then set out that Dr Major did not explain how he had narrowed the source of exposure to “licking or eating” nor what “close to the time of testing” meant.
The plaintiff contended that HRNSW’s submissions should not be understood as having made a generalised assertion that Dr Major’s report could not be relied upon. Rather, he contended that the apparently general contention to this effect should be understood as having been limited to the more specific matters elaborated upon in the submissions.
That contention must be rejected. HRNSW made a general submission that Dr Major’s report could not be relied upon because it was “littered with speculation”. HRNSW then elaborated upon the “substantive issues” arising from the report. In these submissions, HRNSW clearly put in issue (as should in any event have been obvious) that an issue before the Tribunal was the weight to be given to Dr Major’s conclusions and, in particular, whether the Tribunal should find that Dr Major’s opinions were speculative.
“I am in receipt of report of Dr Martin Wainscott dated 11th April 2024, and offer the following brief comments:
• Dr Wainscott clearly acknowledges that the phenylbutazone detected in this case is trace contamination, rather than therapeutic dosing, and proposes a number of possibilities:
o Gloves were not worn when the horses were treated.
o Mr Goadsby used the same cross ties for Luvareschs and the treated horses.
o Oral administration of any paste formulation carries a risk of spillage acting as a source of contamination.
o Contamination through the sharing of equipment such as the jogger and sharing of swimming head stalls.
• Dr Wainscott appears to overlook the data obtained by Charles Sturt University in the RIRDC/Agrifutures Study, in favour of the Knych paper. I find this curious, considering that the Agrifutures study was in part sponsored by Harness Racing Australia, its purpose being to obtain reliable data for such issues.
o The Agrifutures study measured urine levels of PBZ and OPB 7 times in the first 24 hours, with the first being at 2 hours post dosing
o The Knych study first measured these levels at 24 hours
• The purpose of including multiple horses (12 or more), is to increase confidence in the results. That is why, as Dr Wainscott explains, the standard error becomes smaller with more horses tested – to be precise, as he states, the Standard Deviation is divided by the square root of the sample size.
• In my view it is unwise to challenge the opinion of Professor Thomas Tobin. Professor Tobin is unquestionably the most pre-eminent Equine Veterinary Pharmacologist in the world.
• The only significant variance between Dr Wainscott’s opinion and mine is the timing of the ‘contamination’ event. I strongly believe it occurred within 2 hrs of collection, whereas Dr Wainscott prefers to incriminate the trainer’s practices some time within 24 hours of racing.”
“a. The weight that can be attached to the concentrations of each of phenylbutazone and the metabolites of phenylbutazone, namely, oxyphenbutazone and gamma-hydroxyphenylbutazone detected in the sample upon analysis by the ARFL; and consequentially
b. The weight to be attached to the opinions of Dr. Major and Dr. Tobin that upon the known evidence it is more likely than not that the contamination occurred within three hours of the sample being taken; and consequentially
c. Has the appellant satisfied the Tribunal on the balance of probabilities that the horse was contaminated within three hours of the sample being taken?”
The only oral evidence before the Tribunal on 12 August 2024 was from Mr Keledjian. In cross-examination, Mr Keledjian said that the estimate of the OPB was “a rough estimate with a significant margin of error”. He was not shaken in his evidence as to this. However, he did agree that, as a matter of probability, the level of OPB was likely to be less than the detected level of PBZ, adding later that: “[t]he phenylbutazone reading that we got was based on good screening precision work. The oxyphenbutazone was not. It was estimated to be lower. And that’s all I have”.
It was put to him that the only way that this could be explained was if the PBZ had been introduced within two hours before the sample was taken, but he responded that he was not in a position to answer when a substance may have been given and at what time and what dose.
The plaintiff did not seek to call Dr Major to explain what conclusions he would draw from the level of OPB recorded having regard to Mr Keledjian’s oral evidence.
“[10] … founded in the weight (if any) that can be ascribed to the relative concentrations detected of phenylbutazone (308 ng/ml) (‘PBZ’) and oxyphenbutazone 76 ng/ml”.
The plaintiff referred to, and was thus plainly well aware, that HRNSW’s position was that, on the scientific evidence available, the period of exposure could not reliably be refined within the 24 hour period leading up to the race.
The plaintiff contended, however, that the “only reasonable explanation for very little conversion [of PBZ to OPB] having taken place at the time of the urine sample being taken is Dr Major’s opinion”.
“[10] Dr Wainscott (who was not cross-examined at the Tribunal hearing) also explained the variables affecting levels of the parent drug and metabolites. Those variables mean that the Tribunal ought to find that the opinions of Dr Major and Dr Tobin relied upon by Mr Goadsby do not amount to more than ‘guesswork’ and cannot be relied upon to refine the window of contamination to the immediate hours before the race.”
“[14] … The expert evidence relied upon by Mr Goadsby does not assist his case. It is flimsy.”
HRNSW then made a number of discrete criticisms of Dr Major’s evidence. HRNSW raised the variance in Dr Major’s opinion in his first report between exposure being “very close to the time of racing”, on the one hand, and “close to the time of testing” on the other.
Significantly, HRNSW contended that Dr Major’s opinion in his report of 3 May 2024 was reached “without exposing his reasoning”. HRNSW also contended that Dr Major did not expose his reasoning from the “vague reference to ‘close to’ in his [first] report, to ‘within 2 hrs of collection’” in his second report, and contended that his evidence ought not be relied upon.
Again, the plaintiff contended that the more general contentions of HRNSW as to Dr Major’s evidence should be limited by the more specific criticisms. Again, that contention must be rejected. It was crystal clear from these submissions that HRNSW’s contention was that the Tribunal should not rely upon the entirety of Dr Major’s evidence because it was flimsy and he had not exposed his reasoning as to his key conclusion that the ‘contamination event’ occurred within two hours of collection.
HRNSW further contended that the Tribunal should not place any weight on the qualitative reading of OPB, which removed “what is apparently a central plank underpinning” the opinion of Dr Major. That submission plainly referenced Dr Major’s reliance in his report of 5 December 2023, and by implication also in his report of 3 May 2024, upon the OPB level being 76 ng/ml. At no point in his reports did Dr Major offer any opinion predicated simply upon the OPB level likely being lower than the PBZ level. Having regard to the evidence of Mr Keledjian, that was, however, the only relevant issue in considering the significance of the respective levels of PBZ and OPB as reported.
HRNSW then submitted:
“[28] Taking the whole of the lay and expert evidence into account, the Tribunal could find that contamination occurred within the 24-hours before the race but the evidence relied upon by Mr Goadsby is insufficient to make the finding urged by Mr Goadsby that Dr Major’s opinion is correct. Dr Major merely speculated that the explanation for the result is, ‘direct oral contact (licking or eating) an imperceptibly small quantity of [Bute] close to the time of testing’”.
In reply, the plaintiff contended that HRNSW had not grappled with the expert evidence and that HRNSW had “misunderstood” the evidence and their submissions were thus senseless and without substance and should be rejected. So far as relevant to the issues raised in these proceedings, the plaintiff’s primary response to HRNSW’s contentions as to the weight that should be given to Dr Major’s evidence was to identify that Dr Major’s conclusions were “unchallenged” given that he was not cross-examined and to contend that the respondent’s criticisms offended the rule in Browne v Dunn (1893) 6 R 67. Rather, the plaintiff’s submissions contended that the “fundamental issue in the case” was the weight to be attached to the reported level of OPB.
Whilst the plaintiff asserted that Dr Major’s opinions were not speculative, he did not explain in substance why this was so.
“49. In the case of Dr Major, I have already pointed out the inclusion of an inappropriate opinion which goes substantially beyond his area of expertise and intrudes upon the Tribunal’s functions [being that it was unwise to challenge the opinion of Professor Tobin given his expertise]. That matter aside, the principal opinions he has expressed are largely, if not wholly, bereft of any identifiable basis, and/or bereft of the exposition of any reasoning process which led to them.”
“50. To begin with, in the first of his reports Dr Major expressed the following opinion:
The fact that [the horse] had a OPB as low as 76 when the phenylbutazone was 308 ng/ml strongly suggests that the horse has been exposed to a small dose very close to the time of racing.
51. Three observations may be made about that opinion.
52. First, Dr Major has not explained why the OPB reading supports his opinion.
53. Secondly, what is meant by a ‘small dose’ is inherently vague, and entirely unexplained.
54. Thirdly, what is meant by ‘very close’ to the time of racing is equally vague, and similarly unexplained.” (footnotes omitted)
As to this, the plaintiff was clearly on notice that the Tribunal might make the observation at TD [52] having regard to HRNSW’s contentions as summarised at [87] above and on the face of Dr Major’s report. The matters at TD [53] and TD [54] are obvious on the face of the report and the vagueness of Dr Major’s opinion as to timing was in any event raised in HRNSW’s submissions (see [62] and [78]–[79] above).
The Tribunal then observed:
“55. Dr Major went on to express the following opinion:
The most likely explanation for the results obtained in this horse’s urine is direct oral contact (licking or eating) an imperceptibly small quantity of phenylbutazone close to the time of testing.
56. Two observations may be made about that opinion.
57. First, Dr Major provides no basis whatsoever for the proposition that the most likely explanation is ‘licking or eating’. What may have been eaten or licked by the horse is not identified, nor is there any reference to when, where, or in what circumstances, that may have taken place. The proposition advanced is entirely speculative.
58. Secondly, Dr Major shifted from expressing his opinion by reference to a time ‘very close to the time of racing’ to a time ‘close to the time of testing’. What caused that shift is not explained. More specifically, why the reference point was changed from the time of racing to the time of testing is also not explained. That is of some significance, given the evidence that there was gap of approximately 21 minutes between the time at which the race took place, and the time at which the urine sample was collected from the horse.
59. In his second report, Dr Major expressed a ‘strong belief’ that the contamination occurred ‘within 2 hrs of collection’. Whilst not entirely clear, the reference to ‘collection’ is presumably interchangeable with his earlier reference to ‘testing’. What it was that enabled Dr Major to progressively refine the relevant time period from a point ‘very close to the time of racing’, to a point ‘very close to the time of testing’, to a point ‘within 2 hours of collection’, is wholly unexplained.” (footnotes omitted)
The matter at TD [57] was expressly raised by HRNSW in its submissions (see [62] above). The shifts in how Dr Major expressed his opinion as to timing, and his lack of reasoning in support of these opinions, were also expressly raised by HRNSW (see [78]–[79] above).
The Tribunal continued:
“60. Further, I infer that Dr Major was not provided with the details of the statements made by the Appellant when interviewed, nor with the transcript of his evidence before the Inquiry. As a consequence, Dr Major has given no consideration to that evidence, in circumstances where almost the entirety of it concentrated on what occurred at the Appellant’s stables, as opposed to what occurred at the racecourse. Specifically, Dr Major has not taken into account the Appellant’s own acknowledgement of (inter alia) the possibility of contamination arising out of the circumstances which prevailed at his stables, particularly in respect of the horses sharing facilities. That is a not insignificant omission, and is one which, leaving aside the shortcomings I have identified, goes directly to the veracity of the opinions he has expressed.” (footnotes omitted)
The matters at TD [60] were obvious on the face of Dr Major’s reports. It was not a shortcoming that the Tribunal was obliged to draw to the plaintiff’s attention in circumstances where the plaintiff had given evidence before the stewards’ inquiry as to potential causes of contamination, HRNSW submitted in opening submissions that the plaintiff’s “husbandry failures” were the most likely cause of exposure, and in closing submissions HRNSW maintained that the evidence of what occurred at the plaintiff’s property was “of more importance” to the Tribunal in determining the source of contamination..
Having regard to these matters the Tribunal concluded at TD [61]:
“For all of these reasons, Dr Major’s report is of little weight. That conclusion having been reached, the significance attached by the Appellant to the evidence of Mr Keledjian is significantly reduced.”
Ground two can be dealt with briefly. As is plain from the extracts from the Tribunal’s reasoning set out above, the Tribunal adequately explained why it was that the evidence of Dr Major should be given only little weight.
As Leeming JA held in Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [16] (Payne and Simpson JJA agreeing):
“[16] … The content of the judicial duty to give adequate reasons depends on the circumstances of the matter being considered: Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 at [61]. The position with tribunals is a fortiori, bearing in mind the range of matters determined by tribunals and the absence of any free-standing common law duty to give reasons: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [43].”
“[62] The ultimate question remains whether the failure to explain the basis of a crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done.”
The question for the Tribunal was one of evaluation. In the 13 paragraphs of the Tribunal’s reasons devoted to the evidence of Dr Major, the Tribunal more than adequately explained why it was that the issue of the reliability of, and weight to be given to, the evidence of Dr Major should be resolved against the plaintiff. Nothing more was required.
Ground two must be dismissed.
This application for judicial review must be dismissed. There was no submission that anything other than the usual order for costs should be made. Accordingly, the plaintiff should pay the first defendant’s costs.
The orders are:
The plaintiff’s amended summons filed 28 March 2025 is dismissed.
The plaintiff is to pay the first defendant’s costs.
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Goadsby
Harness Racing New South Wales [2025] NSWSC 355
(1994) 49 FCR 576
(2015) 90 NSWLR 764
(2023) 113 NSWLR 282
(2003) 214 CLR 1
(2018) 265 FCR 177
(2006) 228 CLR 152
(2017) 263 CLR 85
(2013) 252 CLR 480