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Representation: Counsel:
D P Sheales (Plaintiff)
K Richardson SC (First Defendant)
S Jeliba (First Defendnat)
Solicitors:
Hammon Nguyen Turnbull (Plaintiff)
Cadre Moss (First Defendant)

File Number(s): 2024/00430132

Publication restriction: Nil

JUDGMENT

1. This judgment concerns an application for judicial review of a decision of the New South Wales harness racing regulatory body against a horse trainer.

2. The plaintiff is Aaron Goadsby, he is represented by D P Sheales of counsel. The first defendant is Harness Racing New South Wales (Harness Racing NSW), it is represented by K Richardson SC and S Jeliba of counsel. The second defendant is the Harness Racing New South Wales Appeal Panel (the Appeal Panel), an internal appeal panel of Harness Racing NSW, it was not an active participant in these proceedings.

3. On 17 December 2024, the Appeal Panel made a submitting appearance. The proceedings have been conducted on the basis that Harness Racing NSW made submissions for both itself and the Appeal Panel.

Statutory framework

4. Harness racing is a form of horse racing in which the horse pulls a two-wheeled cart called a ‘sulky’ or ‘bike’, carrying a driver rather than a jockey on the horse’s back.

5. In New South Wales, harness racing is governed by the Harness Racing Act 2009 (NSW) (the Act). All reference to legislation is in reference to this Act unless otherwise stated. Harness Racing NSW is constituted as a body corporate under s 4. It is the key body charged with the administration of the law as established by the Act. It is independent of the government: it ‘does not represent the Crown and is not subject to direction or control by or on behalf of the Government’: s 5. As set out in s 9(2), some of Harness Racing NSW’s chief functions are:

(a) to control, supervise and regulate harness racing in the State,

(b) to register harness racing clubs, harness racing horses, owners, trainers and drivers of harness racing horses, bookmakers for harness racing and other persons associated with harness racing,

(c) to initiate, develop and implement policies considered conducive to the promotion, strategic development and welfare of the harness racing industry in the State,

…

(e) to allocate to harness racing clubs the dates on which they may conduct harness racing meetings,

(f) to initiate, develop and implement policies relating to the welfare of harness racing horses.

6. Harness Racing NSW 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’: s 10(1). In particular, under s 10(2), it may:

(c) inquire into and deal with any matter relating to harness racing and to refer any such matter to stewards or others for investigation and report and, without limiting the generality of this power, to inquire at any time into the running of any harness racing horse on any course or courses, whether or not a report concerning the matter has been made or decision arrived at by any stewards,

(h) prohibit a person from attending or taking part in a harness racing meeting,

(i) impose a penalty on a person registered by it or on an owner of a harness racing horse for a contravention of the rules,

7. The Governor has the power to make regulations under the Act: s 48. However, no regulations seem to have been made. Subsidiarily, Harness Racing NSW has the power to make rules for or with respect to the control and regulation of harness racing: s 22(1). A rule may be made by applying, adopting, or incorporating any publication in force at a particular time: s 23(2). In particular, under s 22(2), Harness Racing NSW may make rules for or with respect to:

(c) the effect of a disqualification of, or other penalty imposed on, a person or harness racing horse under section 21(1),

(i) the appointment of stewards by HRNSW and the functions of those stewards (including functions that do not relate to harness racing meetings),

8. The parties agree that the applicable rules include both the Australian Harness Racing Rules (the Australian Rules) and the Harness Racing New South Wales Local Rules (the NSW Local Rules). Section 48(4) provides that ‘[a] regulation may create an offence punishable by a penalty not exceeding 5 penalty units’; no analogous provision exists with respect to the rules.

9. Rules 1-1A of the NSW Local Rules provide:

1 The Australian Harness Racing Rules and the Local Rules of Harness Racing New South Wales (including the Rules of Betting) shall be read, interpreted and construed together and as so combined shall be and be known as “The Rules of Harness Racing New South Wales” and such rules apply to the administration, supervision and control of Harness racing throughout New South Wales. Insofar as there is any inconsistency between the Australian Harness Racing Rules and these Local Rules, these Local Rules shall prevail.

1A Any person who takes part in any matter coming within the Rules of Harness Racing New South Wales shall be held thereby to consent to be bound by them.

10. The disciplinary capacity of Harness Racing NSW is delineated by s 21. It reads:

21 Disciplinary and work health and safety action may be taken by HRNSW

(1) HRNSW may, in accordance with the rules, do any of the following—

(a) cancel the registration under this Act of—

(i) any harness racing club, or

(ii) any harness racing horse, or

(iii) any owner, trainer or driver of harness racing horses, or bookmaker or other person associated with harness racing,

(b) disqualify, either permanently or temporarily, any owner, trainer or driver of harness racing horses, or bookmaker or other person associated with harness racing,

(c) prohibit any person from participating in or associating with harness racing in any specified capacity,

(d) prohibit any horse from competing in any harness race,

(e) prohibit any person from attending or taking part in a harness racing meeting,

(f) impose fines, not exceeding 200 penalty units, on any harness racing club or on any owner, trainer or driver of harness racing horses, or bookmaker or other person associated with harness racing for breaches of the rules,

(g) suspend, for such term as HRNSW thinks fit, any right or privilege conferred by this Act or the rules on any owner, trainer or driver of harness racing horses, or bookmaker or other person associated with harness racing,

(h) prohibit any person registered under the rules from taking part in any harness racing meeting held by any harness racing club that is not registered under the rules.

(2) Any fine imposed under subsection (1)(f) is to be paid to and be the property of HRNSW.

(3) HRNSW may only take action under this section for disciplinary purposes or for the purposes of work health and safety.

11. Under the Australian Rules, Harness Racing NSW may appoint ‘Stewards’: r 14. Rules 15-18 set out some significant powers held by the stewards. Under r 15, some include:

(a) to direct and control at any time the activities of persons licensed under these rules and anyone else appointed, employed or engaged in any aspect of the harness racing industry, concerning the application of these rules;

(b) to entertain and determine all matters under question or in dispute at or arising out of a meeting or race, or concerning the meaning or application of these rules, or concerning any aspect of the harness racing industry;

(c) at any meeting or race to appoint or remove any person from or to any office, position, responsibility or task;

(d) to exclude or direct the removal of a person from any property being used for any aspect of the harness racing industry;

(e) to suspend or disqualify any person from participating in or being employed or engaged in or about the harness racing industry;

(f) to furnish information about any person excluded, directed or warned off any racecourse to such persons and in such form as they consider appropriate;

…

(m) to impose fines;

(n) to impose any other penalties provided for in these rules;

…

12. In Trainor v Harness Racing New South Wales [2023] NSWSC 1278 (Trainor), having reviewed the same provisions as above, Nixon J stated at [35]:

“[35] The stewards are therefore responsible for performing a number of different roles. They act as investigators of potential contraventions of the Rules; they decide whether any person should be suspended pending the outcome of such investigations; they decide whether charges should be brought against persons who have been the subject of the investigation; and they then act as decision-makers in determining those charges and imposing penalties.”

13. The Harness Racing NSW Appeal Panel is constituted under pt 5A of the Act. Section 34B sets out when an appeal may be made:

34B Right of appeal

(1) A person aggrieved by any of the following decisions of a racing authority may appeal against the decision to the Appeal Panel—

(a) a decision to disqualify or warn off a person,

(b) a decision to disqualify a harness racing horse,

(c) a decision to revoke or suspend the registration of a person,

(d) a decision to fine a person a sum of $200 or more,

(e) a decision specified in the rules for the purposes of this section.

…

14. A racing authority includes ‘a racing official’: s 34A. A ‘racing official’ includes a steward appointed by Harness Racing NSW: s 3(1).

15. Section 34C sets out the procedure to be followed by the Appeals Panel. Significantly, the proceedings are ‘to be conducted as a new hearing’: s 34C(1). As appears from the section, the appeals panel is more in the nature of an inquisitorial administrative body, rather than a judicial body. It reads:

34C Procedure on an appeal

(1) An appeal to the Appeal Panel is to be conducted as a new hearing.

(2) 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.

(3) The Appeal Panel may, subject to this Act and the rules, decide its own procedure.

(4) On an appeal, the Appeal Panel—

(a) is not required to act formally, and

(b) may inform itself on a matter in a way it considers to be just and is not bound by the rules of evidence, and

(c) must make its decision on the merits and justice of the case and is not required to follow legal precedent.

(5) The Appeal Panel is to sit as in open court when hearing the appeal but may sit in private if the Appeal Panel considers it necessary to do so in the public interest or to protect the safety of a person.

…

16. Section 34D sets out the decisions available to the Appeals Panel. It reads:

34D Decisions on appeal

(1) The Appeal Panel may do any of the following in relation to an appeal—

(a) dismiss the appeal,

(b) confirm the decision appealed against,

(c) vary the decision by substituting a decision that could have been made by the racing authority,

(d) refer a matter relating to the decision to the racing authority for rehearing in accordance with directions given by the Appeal Panel,

(e) make another order in relation to the disposal of the appeal as the Appeal Panel thinks appropriate.

(2) A decision of the Appeal Panel must be given effect.

17. An aggrieved person may further appeal to the Tribunal (the Racing Tribunal) established under the Racing Appeals Tribunal Act 1983 (NSW) (Racing Appeals Tribunal Act). Section 15B of the Racing Appeals Tribunal Act provides:

15B Appeals to Tribunal relating to harness racing

(1) A person who is aggrieved by any of the following decisions may, in accordance with the regulations, appeal against the decision to the Tribunal—

(a) a decision of the Appeal Panel on an appeal under the Harness Racing Act 2009,

(b) a decision for which an appeal is properly made to the Appeal Panel under the Harness Racing Act 2009 if the Appeal Panel—

(i) neglects or refuses to hear the appeal or

(ii) fails to make a decision on the appeal,

(c) a decision of HRNSW.

(2) HRNSW may, in accordance with the regulations, appeal to the Tribunal against a decision referred to in subsection (1)(a) or (b).

18. As with the appeal to the Appeal Panel, an appeal to the Racing Tribunal is conducted afresh:

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.

19. Under NSW Local Rules r 181, a person aggrieved may not go to the Racing Tribunal before first going to the Appeal Panel.

Background

20. The plaintiff has been involved with the harness racing industry for about 25 years. On 25 November 2016, the plaintiff was issued a Grade A trainer’s licence. A holder of a Grade A trainer’s licence is licensed to train any horse: Australian Rules r 90A(2.7)(c).

21. On 6 December 2023, the plaintiff plead guilty to a charge brought by the stewards under r 190 of the Australian Rules which reads as follows:

190 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.

(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.

22. That charge against the plaintiff arose out of the stable contamination of a horse that he presented to race. The horse was subsequently found to have trace amounts of a legitimate veterinary medicine which he had administered to other horses. The penalties which the stewards may impose are set out in r 256 of the Australian Rules:

256 Penalties

(1) One or more of the penalties set out in sub rule (2) may be imposed on a person, club or body guilty of an offence under these rules.

(2)

(a) A fine within the limits fixed by legislation or by the Controlling Body,

(b) conditional or unconditional suspension for a period;

(c) disqualification, either for a period or permanently;

(d) warning off, either for a period or permanently;

(e) exclusion from a racecourse, either for a period or permanently;

(f) a bar, either for a period or permanently, from training or driving a horse on a racecourse, track or training ground;

(g) conditional or unconditional suspension of registration for a period or cancellation of registration;

(h) conditional or unconditional suspension of a licence for a period or cancellation of a licence;

(i) a severe reprimand;

(j) a reprimand or caution.

(3) Should a rule of its own terms impose a penalty in respect of an offence created by that rule then, subject to any contrary intention expressed or otherwise apparent in that rule, that penalty is the only one which can be imposed in respect of that offence.

(4) Penalties, whether under this or any other rule, attach from the time they are imposed, except that the Controlling Body or the Stewards may postpone such attachment.

(5)

(a) Penalties other than a period of disqualification or a warning off under this or any other rule may be suspended for a period not exceeding two years upon such terms and conditions as the Controlling Body or Stewards see fit;

(b) If the offender does not breach any term or condition imposed during the period of suspension, the penalty shall be waived;

(c) If the offender breaches any term or condition imposed during the period of suspension then, unless the Controlling Body or Stewards otherwise order, the suspended penalty thereupon comes into force and penalties may also be imposed in respect of any offence constituted by the breach.

(6) Although an offence is found proven a conviction need not necessarily be entered or a penalty imposed.

(7) Before an offence is found proven, the following conditions shall be satisfied:-

(a) the offender shall be afforded reasonable opportunity to cross examine witnesses, make submissions, present evidence to the Controlling Body or the Stewards as the case may be;

(b) those submissions or evidence shall be taken into account;

(c) evidence relied upon in establishing the offence shall be identified;

(d) in a matter before the Stewards, those Stewards who finally determine that an offence has been committed shall be present during the whole of the proceedings.

23. ‘Suspension’ in relation to a licensed person means the temporary or permanent withdrawal of all rights provided by any licence issued by a controlling body: Australian Rules Dictionary. ‘Warned off’ or ‘warning off’ means a decision or penalty prohibiting a person from entering any racecourse or place under the control of a club or the controlling body and a person warned off is subject to the same prohibitions as a disqualified person as described in r 259: Australian Rules Dictionary. Rule 259 of the Australian Rules provides as follows:

259 Restrictions

(1) A disqualified person or a person whose name appears in the current list of disqualifications published or adopted by a recognised harness racing authority or a person warned off cannot do any of the following -

(a) associate or communicate with persons connected with the harness racing industry for purposes relating to that industry;

(b) be a member or employee of the Controlling Body;

(c) be an office holder, official, member or employee of a club;

(d) enter a racecourse or any place under the control of a club or Controlling Body;

(e) race, lease, train, drive or nominate a horse;

(f) conduct breeding activities;

(g) enter any premises used for the purposes of the harness racing industry;

(h) participate in any manner in the harness racing industry.

(i) permit or authorise any person to conduct any activity associated with the harness racing industry at his/her registered training establishment;

(j) place, or have placed on their behalf, or have any other interest in, a bet on any Australian harness racing race.

(k) associate with licensed persons connected with the thoroughbred or greyhound racing industry including but not limited to entering any premises owned or occupied by such licensed persons.

(2) A licence or other authority held by a disqualified person to do any of the things mentioned in sub rule (1) automatically lapses upon disqualification.

(3) The prohibitions mentioned in sub rule (1) come into effect immediately upon disqualification, subject to any contrary directions which might be given by the Stewards.

(4) If during a period of disqualification the Stewards form the opinion that the circumstances relating to the disqualified person have materially changed, they may remove one or more of the prohibitions set out in sub rule (1) either permanently or for a time.

(5) The power conferred by sub rule (4) does not empower the Stewards to remove the prohibition on an activity which can only lawfully be carried on under licence.

(6) Notwithstanding the foregoing provisions of this rule the Controlling Body may make determinations waiving, varying or qualifying the prohibitions set out in the rule.

(7) A disqualified person who fails to comply with this Rule is guilty of an offence and is liable to a penalty.

24. The stewards convicted the plaintiff of the breach of r 190 of the Australian Rules and imposed a period of disqualification on him of three months, commencing 6 December 2023 and expiring 6 March 2024.

25. On 7 December 2023, the plaintiff filed a notice of appeal with the Appeal Panel seeking to appeal the stewards’ decision on penalty.

26. On 17 January 2024, 30 January 2024, and 1 February 2024, in the course of interlocutory steps relating to that appeal between the plaintiff and Harness Racing NSW, Harness Racing NSW’s stewards directed the plaintiff, on those three separate dates, to produce, among other things, the mobile telephones used by him during the period of disqualification as set out above (6 December 2023 to 6 March 2024). The direction of 17 January 2024 directed the plaintiff to produce ‘any mobile phone(s) used by [the plaintiff] during the Disqualification period.’

27. The power of the stewards to issue directions is found in r 15(1)(a) of the Australian (reproduced above). Failure to comply with a direction is an offence under r 187:

187 Offences

(1) A person who is directed to do so by the Stewards shall attend an inquiry or investigation convened or conducted by them.

(2) A person shall not refuse to answer questions or to produce a horse, document, substance or piece of equipment, or give false or misleading evidence or information at an inquiry or investigation.

(3) A person shall comply with an order or direction given by the Stewards.

(4) A person shall undergo any inspection, examination or test required by the Stewards.

(5) A person shall not abuse, intimidate or be deliberately obstructive of the Stewards.

(6) A person shall not frustrate or endeavour to frustrate an inquiry or investigation.

(7) A person who fails to comply with any provision of this rule is guilty of an offence.

[my emphasis]

28. The stewards’ power to conduct an ‘inquiry’ is found in r 181 of the Australian Rules which provides as follows:

181 Conduct and scope

The Stewards may, and when directed by the Controlling Body shall, conduct inquiries or investigations in such manner as they think fit into any occurrence or matter at or arising out of or connected with a meeting, race or event, or into any aspect of the harness racing industry, or into anything concerning the administration or enforcement of these rules.

29. On 6 February 2024 the stewards commenced an inquiry into each of the three directions given to the plaintiff. The stewards charged the plaintiff with three separate breaches of r 187(3) reproduced just above, one in relation to each direction. The breach consisted in not surrendering the phones used during the disqualification period. Although irrelevant to these proceedings, the plaintiff seems to have resisted production on the basis that the phones contained confidential and privileged information which the plaintiff was adamant not to divulge.

30. On 5 March 2024, the stewards found the plaintiff guilty of charge one. Charges two and three were withdrawn.

31. On 26 June 2024, the stewards handed down their penalty decision relating to the ‘conviction’ for charge one. The penalty was:

32. “(1) [The plaintiff] is warned off until such time as he produces the Mobile Phones in compliance with a direction of HRNSW Stewards issues on 17 January 2024;

33. (2) Following production of the Mobile Phones in compliance with a direction of HRNSW issues on 17 January 2024, [the plaintiff] is disqualified for a period of 12 months.”

34. On the same day, 26 June 2024, the plaintiff appealed to the Appeal Panel under s 34B(1)(a) of the Act. The appeal was advanced on three grounds, namely that:

35. The plaintiff was not guilty of the offence;

36. The decision was not the correct or preferable decision; and

37. In the alternative, the penalty was too severe.

38. Before the Appeal Panel, the plaintiff advanced two main points on penalty:

39. The penalty imposed by the stewards/ Harness Racing NSW was ultra vires as the Australian Rules did not permit a penalty of warning off being imposed conditionally (that is, linked to the production of the phones); and

40. The stewards had misdirected themselves as to the objective seriousness of the offending—the previous penalties by reference to which they fashioned their penalty were in relation to systematic corruption of races, from which the plaintiff’s offending was clearly distinguishable.

41. Harness Racing NSW submitted that the original penalty should be confirmed.

42. On 22 October 2024, the Appeal Panel handed down its decision. It concluded:

The Appeals Panel dismisses [the plaintiff’s] appeal, confirms the finding that Charge 1 is proven and substitutes a penalty of warning off for five years from 5 March 2024 in lieu of the penalty imposed by the Stewards.

36. At the time of the hearing before this Court, the plaintiff had still not produced the phones subject to the directions. That is the common ground between the parties.

The summons

37. On 9 May 2025, leave was granted to the plaintiff to file a further amended summons (the amended summons) (T7 [32]-[33]). By way of the amended summons, the plaintiff sought:

38. An order under s 69 of the Supreme Court Act 1970 (NSW) in the nature of certiorari quashing the decision of the Appeal Panel handed down on 22 October 2024;

39. An order that the decision be remitted to the Appeal Panel to be reheard by a differently constituted panel and determined according to law; and

40. An order that Harness Racing NSW pay the plaintiff’s costs.

41. The plaintiff set out the following grounds in support of the relief sought:

“1. The [Appeal Panel], upon contemplating an increase in the penalty under appeal, denied the Plaintiff procedural fairness by its failure to adhere to the established practice or convention of signalling that possibility to the Plaintiff, so that the Plaintiff may have considered making application [sic] under Harness Racing New South Wales Local Rule 181C(8) to seek the leave of the [Appeal Panel] to withdraw his appeal.

2. The [Appeal Panel], upon contemplating an increase in the penalty under appeal, denied the Plaintiff procedural fairness by its failure to adhere to the established practice or convention of signalling that possibility to the Plaintiff and resultantly did not afford the Plaintiff the opportunity to make submissions directed to the contemplated increase in penalty.”

39. A third ground based on the Wednesbury unreasonableness (after the case of Associated Provincial Picture House v Wednesbury [1948] 1 KB 223) of the Appeal Panel’s decision as to penalty is no longer pressed (T6 [39]-[44]).

Response to the summons

40. In its response, Harness Racing NSW stated that the Appeal Panel did not deny the plaintiff procedural fairness, that it did not act beyond its jurisdiction and that, as a matter of discretion, that the Court ought to deny the plaintiff relief because the plaintiff did not exercise his statutory right of appeal to the Racing Tribunal s 15B of the Racing Appeals Tribunal Act.

41. In particular, Harness Racing NSW submitted that the penalty imposed by the Appeal Panel could not properly be characterised as an increase. It submitted that the hearing before the Appeal Panel was de novo and that both liability and penalty fell to be reconsidered, and the appropriate penalty was a live issue expressly addressed by the parties before the Appeal Panel.

42. The two grounds set out by the plaintiff raise substantially the same matters and it will be convenient to treat them together in the following pages.

Judicial review grounds one and two: was the plaintiff denied natural justice?

43. The plaintiff seeks that the decision of the Appeal Panel be quashed on the basis that it was vitiated by a denial of natural justice. It is said to be constituted by the failure of the Appeal Panel, in departure from its usual practice, to signal to the plaintiff that it was considering an ‘increase’ in penalty. That failure is said to have deprived the plaintiff of the opportunity to withdraw its appeal and accept the penalty imposed by Harness Racing NSW and to have deprived the plaintiff of the opportunity to make submissions on an appropriate penalty. Harness Racing NSW contests the proposition that the penalty imposed by the Appeal Panel can be properly characterised as an increase.

44. It is necessary to say at this early stage that it will not be decided whether the five-year warning-off period, in relation to the former one-year warning-off beginning at compliance with the order, can, or cannot, be properly characterised as an ‘increase’ in penalty. Neither the defendant nor the plaintiff put authority before this Court supporting the proposition either way. Duration is not the only factor defining the severity of a penalty. Which of the two penalties here is the more severe depends on the subject of the penalty, it is therefore highly subjective and not amenable to objective determination.

45. It is unnecessary to decide this issue. The rules of natural justice exist to ensure persons a fair hearing in the determination of issues which might affect their interests. It is sufficient to engage those rules, in this instance, that the penalty imposed by the Appeal Panel was significantly different in nature to the penalty imposed by Harness Racing NSW, thereby differently affecting the plaintiff’s interests.

Plaintiff’s submissions

46. The plaintiff relied upon the well-known decision Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 (Parker). In Parker the NSWCA held that a failure of a judge of the District Court of New South Wales, in the course of an appeal, to disclose that they were contemplating imposing a custodial sentence in lieu of a non-custodial sentence, in the circumstances, amounted to a denial of procedural fairness warranting the issue of a writ of certiorari quashing that trial judge’s decision. The key passage can be found at 295-297 per Kirby P (with whom Handley and Sheller JJA agreed, stated at 295-297).

47. The plaintiff submitted that, in appropriate cases, it is not a matter of controversy that the Appeal Panel and the Racing Tribunal (to which an appeal was not made) are obliged to give a ‘Parker warning’. The plaintiff referred to NSW Thorough**bred Racing Board v Waterhouse (2003) 56 NSWLR 691; [2003] NSWCA 55 (Thoroughbred Racing), Ings v Racing New South Wales [2022] NSWSC 1127 (Ings) and Vasili v Racing New South Wales [2018] NSWSC 451 (Vasili) to support that proposition. I will deal with these cases below. It is also submitted that it has been the practice of the Appeal Panel to give Parker warnings in appropriate cases. It cites several decisions of the Appeal Panel to support this proposition.

48. The plaintiff submitted that, in this instance, it is of some importance that the person whose decision was on appeal was also the respondent to the appeal. It urged that this heightens the standard of natural justice demanded:

“The jurisdiction of the [Appeal Panel] is to be carefully distinguished from the criminal law, the jurisdiction that was the genesis of the Parker warning. A significant distinction is that all criminal penalties subject to an appeal are imposed by an independent court. The respondent to appeals to the [Appeal Panel] is the decision-maker at first instance.”

49. The plaintiff submitted that Harness Racing NSW did not ‘squarely raise’ that the Appeal Panel ought to impose a ‘greater’ penalty. The plaintiff conceded that there may be no obligation to give a Parker warning where the appellant is ‘sufficiently on notice that an increased penalty is a real possibility’: Thoroughbred Racing at [111] per Hodgson JA (Handley and Sandow JJA agreeing). However, the plaintiff that the he was not sufficiently on notice.

Harness Racing NSW’s submissions

50. In short, Harness Racing NSW first submitted that the plaintiff’s appeal to the Appeal Panel was requesting precisely, among other things, that the Appeal Panel review the penalty imposed by Harness Racing NSW. In these circumstances, it is untenable to say that the plaintiff was not sufficiently on notice as to the possibility that there would be an ‘increase’ in the penalty. Secondly, it submitted that, in fact, the plaintiff made substantial submissions on the penalty before the Appeal Panel, and therefore, was afforded natural justice.

Resolution

51. Where, as here, the power to decide derives from a statutory source, the content of procedural fairness is determined by statutory construction. In Kioa v West (1985) 159 CLR 550 at 612-613:

“The principles of natural justice have a flexible quality which, chameleon-like, evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power. The variable content of the principles of natural justice was articulated by Tucker L.J. in an oft-cited passage in his judgment in Russell v. Duke of Norfolk [[1949] 1 All E.R. 109, at p. 118]:

“The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.””

52. Earlier in that same judgment at 587, Mason J stated:

“In this respect recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it. F.A.I. [(1982) 151 C.L.R. 342.] is one illustration. Cole v. Cunningham [(1983) 49 A.L.R. 123.], is another, as are Reg. v. Gaming Board for Great Britain; Ex parte Benaim and Khaida ([1970] 2 Q.B. 417, at p. 431.); and Daganayasi v. Minister of Immigration ([1980] 2 N.Z.L.R. 130.).”

53. The nature of proceedings before the Appeal Panel is primarily set out in s 34C (earlier reproduced). An appeal to the Appeal Panel is conducted as a new hearing: s 34C(1); fresh evidence may be given: s 34C(2). The Appeal Panel, may, subject to the Act, decide its own procedure: s 34C(3). It is not required to act formally nor to follow legal precedent nor to follow the rules of evidence: s 34C(4). It is to sit as an open court but may sit in private it if it considers it necessary to do so for the public interest or to protect someone’s safety: s 34C(5).

54. Generally speaking, the standard of procedural fairness demanded of a court, as in Parker, is higher than that demanded of many administrative bodies. As a matter of construction, the capacity for the Appeal Panel to ‘decide its own procedure’ (s 34C(3)) does not empower it to exclude procedural fairness. The requirement to offer parties before it procedural fairness is implied as a constraint on the Appeal Panel’s statutory powers. Its nature is qualified by the provision that it is not required to act formally (s 34C(4)). Nothing to the contrary was argued before me.

55. As stated, the rules of natural justice are directed towards giving parties whose interests may be affected by a decision a fair hearing. In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Gleeson CJ stated at [37]:

“[37] Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”

56. In Thoroughbred Racing the NSWCA considered the decision of the Racing Tribunal (constituted under the Racing Appeal**s Tribunal Act as it then stood) to increase, unprompted, the penalty on an appeal. The opponent before the Racing Tribunal in that matter had sought an increased penalty and the same was pressed orally, citing the need to deter the offending conduct.

57. In Thoroughbred Racing, counsel for the offender, submitted that since Parker, a practice had developed of explicit warnings being given that an increase in penalty was under serious consideration and that this process was followed by the Racing Tribunal. The absence of such an explicit warning in this case meant that the offender was denied the opportunity to consider applying for leave to withdraw the appeal.

58. Importantly, the NSWCA held in Thoroughbred Racing at [100] that as a matter of statutory construction, the hearing before the Racing Tribunal was not de novo but limited to the detection and correction of error. The effect of this judgment has been overcome by statutory amendment (see Racing Appeals Tribunal Act s 16). This consideration is crucial, because it is the basis on which the NSWCA set aside the Racing Tribunal’s new penalty. It was said that the increase in penalty was bad for want of jurisdiction, there having been no error identified below. At [106] Hodgson JA stated:

“[106] In this case, I accept that the Tribunal did not approach its task as one where detection of error was required before the decision of the Panel could be interfered with. On the appeal against sentence, the Tribunal took the view that it could substitute its own view without first deciding that there was error. That was in my opinion an error going to jurisdiction, or at least an error of law on the face of the record. I am unable to say that it was not material.”

59. The plaintiff relied on [111] of Thoroughbred Racing where Hodgson JA stated:

“[111] It is not necessary to decide the question of denial of natural justice. However, I am inclined to the view that, if the case had been one where the Panel decision was vitiated by an error raised by a ground of appeal, Mr Waterhouse would have been sufficiently on notice that an increased penalty was a real possibility. I do not think the material referred to by Mr Brereton, contained in reports of cases decided by the Tribunal, indicates a uniform practice of informing appellants that an increase in penalty was seriously under consideration, such that any failure to do this in circumstances where a penalty is increased is a denial of natural justice. In this case, in my opinion, the question of increase and the view of the Tribunal that it could increase the penalty were well and truly on the table. The case is in my opinion very different from Parker.”

60. As is readily apparent, that statement defeats, rather than proves, the proposition that it is adduced to support. That proposition was that ‘in appropriate cases before both the [Appeal Panel] and the [Racing] Tribunal a Parker warning must be given is not a matter of controversy’. The statement actually supports the proposition that a party to an administrative proceeding before a body such as the Appeal Panel, can be afforded procedural fairness where, although not ‘squarely raised’ with them by way of a Parker warning or something analogous, they are put sufficiently on notice by the general conduct and submissions of the parties and the administrative body.

61. The next case cited by the plaintiff in support of the alleged requirement (not stated to be absolute) to give a Parker warning was Ings. Basten AJ set out the facts of that case at [1]-[4]

“[1] The plaintiff is a trainer of thoroughbred racehorses. She was charged by stewards with a breach of rule AR 255 of the Australian Rules of Racing which prohibited administering “stomach tubing” to a horse within one clear day prior to 12am on the day of a scheduled race. The horse, Chur Bro, was engaged to race at Wellington on 25 September 2021; the stomach tube was administered on 24 September 2021. The breach of the rule was self-evident. The plaintiff entered an early plea of guilty when charged by the stewards. The only remaining issue was the appropriate penalty.

[2] The breach was subject to a mandatory period of disqualification of 12 months, in the absence of special circumstances. The stewards found special circumstances and reduced the mandatory period by 25%. Accordingly, the plaintiff was initially disqualified for a period of nine months.

[3] The plaintiff exercised her right of appeal to an Appeal Panel which conducted a hearing on 24 March 2022. By majority, the Appeal Panel determined that there were special circumstances warranting a discount of 75% and therefore reduced the period of disqualification to three months.

[4] Not content with that outcome, the plaintiff pursued a further appeal to the Racing Appeals Tribunal constituted under s 5 of the Racing Appeals Tribunal Act 1983 (NSW) ( ‘Tribunal Act’ ). That appeal was by way of a fresh hearing and, in circumstances which will be considered further below, the plaintiff was made aware that Racing NSW, the prosecutor of the disciplinary charge, sought to have the original penalty imposed by the stewards reimposed. On 2 May 2022, the Tribunal dismissed the severity appeal and reimposed the penalty originally imposed by the stewards, namely disqualification for 9 months.”

62. The plaintiff drew attention to [83]-[87], [83]-[88] (citations omitted):

“[83] Ground 10 was expressed in terms which revealed its origins, namely criminal procedure in New South Wales. It complained of the absence of a “Parker warning”, referring to the decision of the Court of Appeal in Parker v Director of Public. Parker bore a similarity to the present proceedings in that it was concerned with an appeal by way of fresh hearing from the Local Court to the District Court. Mr Parker had been charged with three offences arising out of a fight in a carpark. In the Local Court, he was fined and received a recognizance to be of good behaviour for two years. He appealed to the District Court. Without adequate warning that he proposed to impose a custodial sentence, the District Court judge sentenced him to imprisonment for four months. The Court of Appeal held that there had been procedural unfairness in failing to warn Mr Parker that such a course was being considered, so as to allow him an opportunity to withdraw his appeal.

[84] The case provides an example of circumstances of procedural unfairness. The use of the label “Parker warning” takes the matter no further. The common element with the present case is that the proceedings before the Tribunal involved a fresh hearing with the question of penalty being potentially at large. There are two matters which differentiate the cases. First, this was a second appeal, in circumstances where the initial decision-makers (the stewards) had imposed a higher penalty than that imposed by the Appeal Panel from which the appeal to the Tribunal was brought. Secondly, and importantly, the plaintiff was made aware by two express statements that the defendant would propose at the hearing the higher penalty imposed by the stewards.

[85] It is to be recalled that the Tribunal heard the appeal on 26 April 2022. More than two weeks earlier, on 8 April, the defendant sent an email to the Tribunal, to the plaintiff and to the plaintiff's counsel, identifying the defendant's position before the Tribunal. First, the email noted that, in accordance with the decision of this Court in Vasili v Racing New South Wales, the whole of the decision was at large. The email continued:

“Accordingly, by way of notice, Racing NSW will contend at the appeal before the Tribunal that:

1 Special circumstances pursuant to [LR] 108(2)(b) are not established;

2 The maximum discount that can be applied in respect of special circumstances pursuant to [LR] 108(2)(a) (plea of guilty at an early stage and assistance to the Stewards) is a discount of 25%;

3 Accordingly, the appropriate penalty is a period of disqualification of nine months being the mandatory minimum penalty of 12 months disqualification discounted by 25% in respect of special circumstances pursuant to [LR] 108(2)(a).”

[86] Thus, well before the hearing the plaintiff was on notice that the defendant was seeking to have the penalty imposed by the stewards reinstated. That would be sufficient to dispose of this ground. However, that position was reinforced on 25 April 2022 when the Tribunal, the plaintiff and her counsel were provided with an outline of submissions for Racing NSW which repeated the notice by way of introduction and concluded by identifying the order sought as disqualification for nine months. Finally, the defendant's position was confirmed orally at the commencement of the hearing on 26 February.

[87] Unsurprisingly, there was no evidence from the plaintiff as to what approach she would have taken had she not received such a warning. In a sense, that did not matter because all that procedural fairness required was an opportunity for her to consider her position. Had she sought to withdraw her appeal, it is quite possible that the defendant would have lodged its own appeal, a course it has now taken, not as a concession that such a step was necessary, but to allow a submission that upholding the ground on the basis that there had been no notice of appeal by the defendant would lack utility, because the matter would simply be remitted for the hearing of any outstanding appeal.

[89] It is not necessary to explore the last point further; there was no denial of procedural fairness. Ground 10 must be rejected.”

63. Again, as with Thoroughbred Racing, Ings is authority for the proposition that a party before an administrative body such as the Appeal Panel may be afforded procedural fairness where, absent a Parker warning, by the submissions of the parties and the conduct of proceedings generally they are put sufficiently on notice that the question of penalty is at large and may increase.

64. Finally, the plaintiff drew this Court’s attention to Vasili. In Vasili, two opposing appeals were held by the Racing Tribunal (to repeat, the tertiary administrative decision maker for various racing sports), the authority appealed against the leniency of the punishment given by the appeal panel below, whereas the offender appealed to the Racing Tribunal on the question of liability. There, Garling J, having considered Parker continued at [150]-[155], discussing the role of the Racing Tribunal and the de novo nature of appeals to it:

“[150] By analogy with the proceedings here, the Tribunal is a body sitting above the internal Appeal Panel of Racing NSW. Its function is to provide an external body, independent of Racing NSW, which can hear and determine appeals between Racing NSW and parties who are the subject of the nominated decisions.

[151] The independent Tribunal is given the power to rehear the proceedings. It is not necessary for error to be established on the part of the Panel. In so doing, it must apply the rules of procedural fairness. But, given that it is undertaking a rehearing and that the evidence before it is not necessarily the same as that before the Panel, there is no reason, in the absence of express statutory provision, to hold that its jurisdiction can be limited by the election of one party or another to proceedings before it to nominate only particular grounds of appeal.

[152] That proposition may be tested in this way. Assume that, as here, Racing NSW appeals against leniency of penalty. That order was made on the basis of underlying facts. For example, it may be contended that the Panel found that the breach was inadvertent, whereas, on appeal, Racing NSW wishes to contend, on the basis of later-acquired evidence, that the breach was intentional. It may ordinarily be expected that if the breach was intentional, then a greater or more severe penalty would be imposed.

[153] In the hearing of that factual dispute dealing with a fact underlying the appropriateness of the penalty imposed by the Appeal Panel, and consideration of the most appropriate penalty to be imposed by the Tribunal, it would be surprising if, in considering the evidence, it would not be open to the Tribunal to come to the conclusion that there had been no breach of any rule because the conduct demonstrated before it did not prove such breach. Of course, before coming to such conclusion, the Tribunal would need to give the parties the opportunity to make submissions with respect to such a possible conclusion. In that way it would accord procedural fairness. But it would be most unjust if the Tribunal, having heard all the evidence about the conduct of the party concerned, could not consider whether in truth the conduct constituted a breach of the rule, just because, in the example given, Racing NSW chose not to nominate a specific ground of appeal, and the other party could not raise such issues.

[154] What this analysis shows is that there is no reason to restrict the jurisdiction of the Tribunal. The jurisdiction with which the Tribunal is seized was that of the whole matter, even though it was the appeal of Racing NSW, which nominated its grounds of appeal as being related to the inadequacy of the penalty. There is no basis for the Tribunal to prevent the other party, here Mr Vasili, from raising any matter relevant to the decision appealed against which includes whether or not there had been any breach of the Rule.

[155] It follows from this conclusion that the interlocutory decision of the Tribunal was wrong in law and must be set aside.”

65. In Vasili, Garling J gave the appellant relief where the Racing Tribunal had misconceived its jurisdiction and failed to afford the offender an opportunity to challenge the factual findings concerning liability but confined him to commenting on the severity of penalty.

66. The decision in Vasili does not assist the plaintiff here except insofar as it is an example where this court has granted relief against an administrative appeal body such as the Appeal Panel where it improperly prevents a person from utilising its jurisdiction of considering the whole of the matter afresh or preventing a person from being heard on a decision that it will make.

67. In the present proceeding, the plaintiff appealed to the Appeal Panel from the decision of Harness Racing NSW both on liability and the penalty imposed. The plaintiff took issue with the conditional nature of Harness Racing NSW’s penalty. The Appeal Panel was responsive and imposed an unconditional penalty.

68. In written submissions before the Appeal Panel, the plaintiff submitted that Harness Racing NSW should have imposed a penalty at first instance which ‘finalised the charge’. Under the subheading ‘Penalty excessive’, the plaintiff submitted as follows:

“[36] The Stewards misdirected themselves as to the objective seriousness of the appellant’s breach of AHRR 187(3). Each of the cases referred to by the Stewards in their penalty decision involved non-compliance with directions that pertained to investigations into allegation sof the systematic corruption of races (Green Light Scandal: Vallender, Byrnes, Bennett, Sarina, or a (mistaken) belief as to systematic doping using cobalt: McDowell and Day).

[37] The appellant repeats to this Panel and relies on the “Submission son Penalty” dated 25 April 2023 made to the Stewards as to the relevant matters to be taken into account when determining the proper penalty.”

69. In its written submissions before the Appeal Panel, Harness Racing NSW submitted:

“[60] The Appeal Panel ought to find that the Direction stands. By failing to produce the Mobile Phones, Mr Goadsby continues to frustrate the work of the Stewards in connection with their investigation. It is open to Mr Goadsby to comply with the Direction at some time in the future, at which point the warning off aspect of the penalty imposed by Stewards, will lift (and the start date for the 12 month disqualification will commence).

[61] AHRR 256(c) and (d) permits the imposition of a disqualification or warning off for a period, or permanently.

[62] As to the warning off period imposed by the Stewards, that is for the period of time until such time as he has produced the Mobile Phones. That is an objectively-ascertainable period of time: c.f. AS, [26(b)], [29].

[63] The disqualification period is then stated to commence upon production for a period of 12 months. AHRR 256(4) provides that penalties attach from the time they are imposed except that the Controlling Body or Stewards may postpone such attachment. The Stewards validly postponed the attachment of the disqualification period.

[64] The failure to comply with a direction is objectively very serious. It is interfering with the work of Stewards by frustrating the investigation into the AHRR 259 matter. The risk of data being destroyed or damaged increases each day the Direction is not complied with. It has been about nine months since the Direction was issued.

…

[66] None of the arguments relied upon by Mr Goadsby on penalty are persuasive. Mr Goadsby apparently relies on his earlier penalty submissions to the Stewards, which suggested a fine was appropriate: RAB, V1, p. 26. That demonstrates Mr Goadsby continues to lack insight as to the seriousness of this matter.”

70. Extracted below are some key exchanges which took place during the hearing before the Appeal Panel:

“SHEALES: So the question then is, if I may, with respect, deal with the penalties that have been imposed at this stage. You cannot impose a disqualification or a warning off that's conditional on conduct. You cannot do it. Because the rules don't permit it and it’s duplicitous.

…

KANE: Well, a warning off appears to me to be a permanent warning off until such time as the phones are produced. So if the phones—

SHEALES: Never be.

MR KANE: —are never if the phones are never produced, then

SHEALES: That would be a condition.

KANE: —he's warned off forever.

SHEALES: Yep, that would be a condition. So there's no period at all. The rule permits a period, but there's no period, there's a condition. And, with respect, you can't structure it any other way, respectfully, honestly, looking at the language. But I do posit the question genuinely to let's say you're allowed to have this condition, to whose satisfaction that the condition's been complied with?

SHEALES: … The inquiry is where you can — again, you can't coerce, but you can make orders in relation to people who are licensed, obviously my client wasn't, in that they cannot participate in licence activities. For example, a condition might be until you provide whatever. For now. That's before you charge them. And that can be ongoing till the end of an inquiry when the charge is dealt with.

But here, they're using a penalty provision coercively to facilitate inquiry. You've only got to look at the condition they're purporting to put on, which is, "You are warned off until you comply with the inquiry." It doesn't work like that.

CONVENOR: So what they should have said was, "You're warned off permanently"?

SHEALES: No.

CONVENOR: "But you can make an application"—

SHEALES: Well, no.

CONVENOR: —"at any time."?

SHEALES: Well, permanent warning off would be a ridiculous penalty, in my submission. You know, this is the point. It's not the function of stewards, it's not the function of the Panel, it's not the function of the Racing Appeals Tribunal as to whether he's licensed or not.

All that can be said in this context — to warn someone off for life. I'm not talking about not relicensing. Warning off is not an order for — you know, a determination of a period of warning off is not a right to a licence. It's just a capacity to apply for a licence. A warning off for life for this would be ridiculous, with respect.

…

CONVENOR: Well, let's say they warned him off for six months?

SHEALES: Well, then it's a question of what's the appropriate. But you see, this is where

CONVENOR: But all of these things achieve the same objective, though, don't they?

SHEALES: But it's got to be done lawfully. CONVENOR: All right.

SHEALES: So that

CONVENOR: I understand your point.

SHEALES: No, but the thing is, if you warn him off for six months, right, he serves that. Well, then, he doesn't have to comply anymore, he's done his penalty.

…

SHEALES: … And here, it's a really simple matter, I'm not being disrespectful, the quantum might be in dispute, but it's all about what is the appropriate penalty for this breach, if it's found proven, in the wider circumstances. And you've got Greg Bennett and Sarina and those guys who, non-compliance, warned off for life because of the nature of the investigation.

You know, of course, you would have — Bennett could expect — Bennett decided, "I'm going to do nothing and protect myself in relation to criminal proceedings." But the ambit of the gravamen of the offence will be highly relevant to what the appropriate penalty is. …

…

RICHARDSON: So in terms of penalty, we rely on our written submissions. Firstly, in terms of the relevant material here, unlike the Vallender case, Mr Goadsby has not produced anything. And all of that, and the correspondence that's in our aide-memoire after 5 March, which is after the liability decision, all of the conduct before and the conduct after is relevant to penalty in the sense of not only has Mr Goadsby not produced, we say there has been nine months of hindering the investigation and putting up roadblocks and so on where the stewards have continued to make accommodations and so on, and all of which have been rejected. So all of that material is pressed on the seriousness of the offence and the extent of the frustration of the stewards' work.

…

RICHARDSON: … So in our submission, there's no basis, as my learned friend urges on the Panel, to suggest that it is a non-serious, de minimis investigation and that he should be penalised accordingly. There's no basis in the evidence for that contention.

…

RICHARDSON: So if we look at the way the warning off is structured, it's not excessive because the period of the warning off ends when the production occurs. And then in respect of the disqualification, the period commences with the production of the phones.

So the submission is made in writing on behalf of Mr Goadsby that a fine is appropriate in this case. We submit that that is manifestly inadequate and no submissions in terms of substance have been addressed to how it could be that a person who has frustrated this investigation and still refused to comply, that a fine would be appropriate.

And if we think about this in terms of the protective function of stewards with control in relation to the industry, that it is manifestly inadequate for it to be the public position that you can frustrate the investigation by stewards, still refuse to produce and just get a ne at the end of it. It would make the system quite unworkable in terms of the protective function of stewards.

In terms of alternative submissions as to penalty, we submit that the penalty that the stewards imposed was proportionate. It was lawful because the period can be determined. And it was tailored in the sense that once Mr Goadsby produces, then the penalty is tailored to the fact that he has produced. And so it's not excessive in that respect.

If the Panel is of the view that the way the warning off and disqualification is structured is that it does not meet the description in 256 of being for a period, then our alternative submission is that Mr Goadsby should be both disqualified and warned off for a very significant period.

…

SHEALES: … So that's — but that — you might — that's quite a — it's a pretty thorough — well, Mr Armati's are — but it does set out this interrelationship of the effect of 259 and how that works and, if I may say, with respect, it's pretty non-controversial. And so we would say, if you want a number, in my submission, the upper limit would be six months' disqualification or warning off.”

71. The plaintiff appealed to the Appeal Panel both in order to challenge the finding on liability but also to challenge the penalty if liability was affirmed. From the submissions extracted above and excerpts of the transcript of the proceedings before the Appeal Panel that the parties joined issue on both the objective severity of the plaintiff’s contraventions and the appropriate penalty that ought to have been imposed. Harness Racing NSW all the way through maintained its emphasis on the severity of the plaintiff’s contraventions. On the contingency that the Appeal Panel agreed with the plaintiff’s contention that a conditional warning off was without the power of Harness Racing NSW or that it was inappropriate, Harness Racing NSW submitted, as reproduced above, that the plaintiff “should be both disqualified and warned off for a very significant period”.

72. On penalty, the Appeal Panel stated the following it its written decision:

“[29] Counsel for the Appellant effectively repeated the "Submissions on Penalty" dated 26 April 2024 provided at Inquiry. The matters contained therein were set out in the decision of the Stewards. The Panel considered those matters in deciding the outcome of the appeal.

[30] Whilst the Respondent argued for confirmation of the Steward's decision on penalty, she also made a submission in the alternative by way of response to the submissions of counsel for the Appellant that a lengthy, fixed period of warning off would overcome the technical arguments concerning the conditional basis of the penalty imposed by the Stewards. The submission was made on the Respondent's behalf, that the conduct of the Appellant in failing to produce the mobile phones, of which production was sought and ordered, amounted to a frustration of the investigative functions of the Stewards.

[31] The Panel, rather than embarking on an exhaustive analysis as to the correctness of the contentions of counsel for the Appellant concerning the correctness of the Steward's formulation of the penalty imposed, chooses to accept the force of the Respondent's alternative submission. A more concise formulation identifies with greater clarity the seriousness of the conduct engaged in by the Appellant.

[32] Contrary to the submission of counsel for the Appellant, the Stewards did not misdirect themselves and were correct in identifying the underlying seriousness of the offence committed by the Appellant. As Senior Counsel for the Respondent observed, the outcome of the Appellant's refusal to produce the mobile telephones would be nothing less than 'catastrophic' for the harness racing industry.

[33] The Panel regards the obfuscation by the Appellant with the utmost disapproval. In order to meet arguments about the finality of the Inquiry and the conditions imposed by the Stewards, the Panel elects to substitute the penalty imposed by the Stewards with an order for the warning off of the Appellant for a period of five years commencing on 5 March 2024 (the date on which the charge was proven).

[34] Accordingly, the Appeals Panel dismisses the Appellant's appeal, confirms the finding that Charge 1 is proven and substitutes a penalty of warning off for five years from 5 March 2024 in lieu of the penalty imposed by the Stewards.”

73. As revealed by the details of the proceedings before the Appeal Panel extracted above, it is my view that the plaintiff and his legal representation were sufficiently on notice as to the possibility of a significant variation of penalty. It is of some significance that half of the plaintiff’s appeal to the Appeal Panel expressly requested a variation of penalty. The plaintiff’s main contention with the penalty imposed by Harness Racing NSW was that it was conditional in nature, and that for so long as the condition was unfulfilled, for that long would the plaintiff be excluded from the harness racing industry in New South Wales. It was urged that a fine would be appropriate. It cannot be plausibly suggested that the plaintiff, in appealing against the conditional 12-month warning off, did not sufficiently contemplate the possibility that, in it’s lieu, a longer unconditional warning-off would be imposed, the increase in length compensating for release of the condition.

74. The decisions of this Court in Thoroughbred Racing and Ings make clear that in appeals to administrative bodies such as the Appeal Panel, in the context of the various racing industries in New South Wales, an express Parker warning, as may be rightly expected where the court exercises its criminal jurisdiction, is not required to afford a person procedural fairness where an increase in penalty is contemplated and imposed. The question is whether the person whose interests are at stake have been sufficiently put on notice as to such a possibility. The concern at all times is to ensure practical justice. The question of penalty was sufficiently discussed by the parties, the plaintiff was heard on the matter, and that is the very purpose of the hearing rule which was invoked by the appeal to procedural fairness. Harness Racing NSW maintained its emphasis on the severity of the plaintiff’s contravention and urged that if the penalty were to be varied, the plaintiff “should [instead] be both disqualified and warned off for a very significant period”.

75. The plaintiff was put sufficiently on notice of Harness Racing NSW’s insistence on the severity of the contravention and that it urged in the alternative a relatively drastic variation of penalty. The plaintiff was free to withdraw his appeal and sit with the conditional penalty having heard Harness Racing NSW’s submissions. There has been no practical injustice.

76. If I am wrong in this matter, I would have nonetheless dismissed the summons on a discretionary basis. The appellate scheme established by Parliament for persons aggrieved such as the plaintiff is extensive and contains three tiers in this instance. Here, the plaintiff omitted to go to the Racing Tribunal which had and still has jurisdiction to hear his matter afresh, before approaching this Court.

Result

77. The plaintiff was afforded procedural fairness in his hearing before the Appeal Panel. The decision of the Appeal Panel handed down 22 October 2024 was within jurisdiction and lawful. Hence, the further amended summons taking effect 9 May 2025 is dismissed.

78. As a result of the Court’s finding that the decision of the Appeal Panel was lawful, it is unnecessary to consider whether or not the ‘liability decision’ and the ‘penalty decision’ of the Appeal Panel constituted a single decision or not, although it is my view that they constituted a single decision.

Costs

79. Costs are discretionary. The general rule is that costs follow the event: Uniform Civil Procedure Rules 2005 (NSW) r 42.1. There is no reason to depart from this rule. The plaintiff is to pay the first and second defendants’ costs.

The Court orders that

1. The plaintiff’s further amended summons dated 8 May 2025 is dismissed.
2. The plaintiff is to pay the first and second defendants’ costs of these proceedings.

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