Greyhound Welfare and Integrity Commission v Bell

The summons

1. The orders sought in the summons were as follows: "1 An order, pursuant to s 69 of the Supreme Court Act 1970, in the nature of certiorari, quashing the Decision of the Second Defendant in relation to the penalty imposed on the First Defendant. 2 An order, pursuant to s 69 of the Supreme Court Act 1970, in the nature of mandamus, requiring the Second Defendant to dismiss the First Defendant's appeal against penalty brought pursuant to s 15A(2) of the Racing Appeals Tribunal Act 1983. 3 In the alternative to orders 1 and 2 above, an order, pursuant to s 65 of the Supreme Court Act 1970, remitting the Decision to the Second Defendant and requiring the Second Defendant to re-determine the First Defendant's appeal in accordance with law. 4 Costs. 5 Any further or ancillary orders as the Court sees fit."
2. Under a heading "Details of Decision" the summons states the following: "1. The decision maker is the Second Defendant, the Racing Appeals Tribunal. 2 The Decision, including the reasons for decision, was delivered across two separate determinations. The first part of the Decision, delivered on 1 December 2022, dismissed the First Defendant's appeal as to the Plaintiff's finding that he had contravened rule 83(2)(a) of the Greyhound Racing Rules. 3 With one exception, being the conclusion at [173] of the first Decision, the Plaintiff does not seek relief in respect of any aspect of the first Decision. 4 The second part of the Decision delivered, on 24 January 2023, upheld the First Defendant's appeal as to the severity of the penalty imposed by the Plaintiff on the First Defendant for his contravention of rule 83(2)(a) of the Greyhound Racing Rules. The Second Defendant upheld the appeal and imposed a penalty on the First Defendant of a six-week disqualification, which was suspended for two years, subject to conditions. 5 The Plaintiff seeks relief from the second part of the Decision."
3. The Commission particularised four grounds of review as follows: "1. The Second Defendant erred in finding, in the first part of the Decision (at [173]) that the prohibited drug was not present in the greyhound, 'King Reed', when it was originally kennelled before a urine sample was taken, in circumstances where that finding was not open on the evidence before the Second Defendant, or in the alternative, was a finding that was unreasonable, irrational and/or illogical. 2. Further, and in the alternative to ground 1 above the Second Defendant, in finding, in the first part of the Decision (at [173]) that the prohibited drug was not present in the greyhound, 'King Reed', when it was originally kennelled before a urine sample was taken, failed to afford the Plaintiff procedural fairness. 3. The Second Defendant, in imposing a penalty of a six-week disqualification, suspended for two years on conditions, erred in imposing a penalty that was manifestly inadequate. 4. Further, and in the alternative to ground 3 above, the Second Defendant, in imposing a penalty of a six-week disqualification, suspended for two years on conditions, erred in making a finding that was unreasonable, irrational and/or illogical."
4. It was accepted on behalf of the Commission at the hearing of these proceedings that ground 3 does not add anything to ground 4 because the two grounds make the same complaint. Further, although the Commission sought relief in the nature of both certiorari and mandamus in the summons, it was accepted during the hearing of this matter that if the decision was quashed there would be no need for an order in the nature of mandamus as well.

The hearing

1. The matter was listed for a one-day hearing before me on 28 June 2022. Mr Dominic Villa SC appeared with Mr Martin Watts for the Commission and Mr Mark Maconachie of counsel appeared for Mr Bell. As is the usual practice, a submitting appearance was filed by the Crown Solicitor's Office on behalf of the decision maker.
2. At the hearing, a joint court book was tendered. In addition to the Liability decision and the Penalty decision, it included the affidavit of Alice Anne Stafford sworn on 12 May 2023 with annexed documents that were received as evidence before the Tribunal. That material included the transcript of proceedings before the Tribunal on 18 November 2022, the Commission's brief of material, a report of Dr Steven Karamatic dated 30 August 2022, a handbook entitled "Being a Greyhound Attendant", the Commission's Race Day Hydration and Hot Weather Policy, a pilot observational study, Mr Bell's statement dated 17 November 2022, the Commission's Penalty Guidelines in force between December 2021 and June 2022 and from July 2022, a chronology, a schedule of relevant legislative provisions, and the parties' written submissions that were before the Tribunal. Mr Bell's notice of appeal to the Racing Appeals Tribunal dated 27 May 2022 was also tendered at the hearing and added to the court book.
3. The Commission did not identify in its submissions whether the errors relied upon were jurisdictional in nature or errors of law on the face of the record. Although the distinction was a relevant one, given the large amount of material put before the court, I ultimately did not need to consider this question for reasons which I provide below.
4. Before turning to consider the decision under review, I propose to set out the relevant statutory scheme.

Legislative scheme

1. Mr Bell was found to have breached r 83(2) of the Rules which relevantly provides that the trainer in charge of a greyhound nominated to compete in "an Event" shall present the greyhound free of any prohibited substances.
2. Although the relevant race was completed at the time the greyhound was tested, it was common ground that it remained "presented" to race at the time of the testing given the terms of r 42(2), which provides that it remains presented, "until the time it is removed from the racecourse after the completion of that Event with the permission the Stewards".
3. Greyhound racing in New South Wales is governed by the Greyhound Racing Act 2017 (NSW) ("the Act"). The Commission is a body constituted under s 4 of the Act. Pursuant to s 55 of the Act, the Commission can make rulings with respect to any matter relating to greyhound racing and has done so by making the Rules. Section 59 of the Act sets out disciplinary action that may be taken by the Commission for contraventions specified in s 58(1), namely if a person has contravened a provision of the Act, regulations, code of practice or the greyhound racing rules, or is not a fit and proper person to be registered. Section 59(1) provides that the Commission can suspend or cancel the registration of a person, a greyhound or a greyhound trial track. Other penalties include imposing a condition on registration, imposing a fine, and disqualification of the person or a specified greyhound, or prohibition of a person or specified greyhound from participating or competing in a race or trial.
4. Appeals from disciplinary decisions made by the Commission are governed by the Racing Appeals Tribunal Act 1983 (NSW) ("the Racing Appeals Act"). The Tribunal is constituted by s 5 of that Act with qualified persons appointed by the Minister pursuant to s 6. Section 15A provides for the appeals to the Tribunal in accordance with regulations from the decisions of the Commission in relation to greyhound racing. Section 16(1) provides that 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. Section 16(2) provides that proceedings on an appeal are to be held as in open court before the Tribunal.
5. Section 17A(1) provides that in respect of an appeal under s 15A (or 15B), the Tribunal may dismiss the appeal, confirm the decision, vary the decision, and/or make such other order in relation to the disposal of the appeal as the Tribunal thinks fit. Section 17A(2) provides that the decision of the Tribunal is final. Section 18 provides for regulations to be made with respect to appeals including the procedures to be followed and the suspension of a decision appealed against pending the determination of the appeal.
6. Regulation 9(1) of the Racing Appeals Tribunal Regulations 2015 (NSW) identifies decisions from which an appeal may be made to the Tribunal under s 15A of the Racing Appeals Act and includes a decision to disqualify or warn off a person. Regulation 10 provides for the procedure for appeals under s 15A.
7. A handbook described as the "Being a Greyhound Attendant Handbook" ("the Handbook") has been produced by the Commission. It sets out the procedures at a race. Relevantly, under the heading "Before the race", it is stated that a trainer or a person acting on behalf of a trainer must be in the kennels to prepare their dog for its race no later than 20 minutes before the scheduled race time. Under the heading "After the race", the Handbook sets out the post-race care of the greyhound which includes that greyhounds are to be returned to their kennels after the race and the stewards may decide that certain dogs be swabbed for drug testing. Once the stewards have "signed off" on the race, the greyhound may be removed from the kennels unless it has been vetted, swabbed, or otherwise flagged.

The internal appeal to the Tribunal

1. Following the disciplinary hearing on 1 April and 13 and 18 May 2022, the Commission made its decision on 18 May 2022 finding Mr Bell liable and disqualifying him from that date for a period of 16 months. Mr Bell had relied on the expert report of Dr Derek Major dated 13 May 2022 in his defence. Dr Major is a veterinary consultant.
2. On 27 May 2022, Mr Bell filed an appeal from the Commission's decision with the Tribunal. In addition to a ground alleging that the penalty was too severe, there were two grounds of appeal against liability as follows: Ground 1: GWIC erred in finding that the procedures for taking the samples from the greyhound King Reed at Dapto on 16 December 2021 (the event) were complied with. GWIC ought to have found that the procedures relating to the collection of samples were not adhered to, such that the samples could not be relied upon to support the charge brought against Mr Bell. Ground 2: GWIC erred in law in not drawing the correct inference from the uncontested and unchallenged evidence of Dr Major, that the levels of the metabolite detected in King Reed following the event indicate that the animal, or the sample taken from the animal, was contaminated post-race and could not be relied upon to support the charge brought against Mr Bell.
3. Under the first ground of appeal against liability, Mr Bell challenged the procedures for taking the samples and contended that there were two possible ways in which the sample could have been contaminated post-race. It was contended that the certificate should be invalidated due to the possible contamination. The first possible contamination arose from the fact that CCTV footage of the post-race kennelling area depicted an unknown woman appearing to make physical contact with the dog after the race but before the sample was taken. The second possibility was that the dog was given bottled water in the post-race area prior to the sample being taken in breach of the hydration policy and this somehow led to the contamination.
4. Under the second ground, Mr Bell relied on the expert report of Dr Major regarding the presence of metabolites and the relevance of that to the timing of the contamination.
5. The Commission obtained an expert report of Dr Steven Karamatic dated 30 August 2022 to respond to the scenarios advanced by Dr Major. Dr Karamatic is a qualified veterinary surgeon and the Chief Veterinarian at Greyhound Racing Victoria.
6. The hearing of the appeal took place on 18 November 2022. Neither Dr Karamatic nor Dr Major were required for cross-examination; their expert evidence before the Tribunal was confined to the contents of their reports.
7. At the conclusion of the hearing of the appeal, the Tribunal reserved its decision on the question of whether the charge was proven until 1 December 2022.

The Liability decision

1. The Tribunal delivered its decision on 1 December 2022. It dismissed the appeal against the finding of breach and stood the matter over for penalty submissions to be provided.
2. The reasons of the Tribunal for dismissing Mr Bell's appeal were detailed comprising 189 paragraphs. The Tribunal set out the background, relevant Rules, Handbook and grounds at [1]-[19]. Under a heading "The Facts", the Tribunal noted (at [20]) that few facts were contested. The factual issues under the first ground (which do not form part of the challenge in these judicial review proceedings) were set out at [25]-[40]. These factual issues concerned whether a woman had somehow come into contact with the dog and whether the hydration policy was breached leaving open the possibility that somebody had administered the prohibited drug in the post kennelling period. The Tribunal noted at [41] that a substantial number of facts were not known.
3. The Tribunal then turned to consider the expert evidence. Dr Major's evidence was summarised at [42]-[48] as follows: "44. [Dr Major] noted that the qualitative levels reported here were amphetamine at 20 ngl/ml, 4-hydoxyamphetamine at 1 ng/ml and methamphetamine at 5 ng/ml. 45. He stated: 'After administration of a drug, initially, only the parent substance will be found in the blood or urine. Within hours or minutes, the level of metabolites of a drug invariably exceeds the level of the parent substance. Frequently, no parent drug is found, but rather its metabolites. In the case of King Reed, the principal metabolite 4- hydroxyamphetamine has been found at a significantly lower level (approximately 1 ng/ml) than the active substances - 25 and 5 ng/ml respectively.' 46. He therefore concluded: '1. The dog has been exposed, by some route, to a very small quantity of amphetamine or methamphetamine, very close to (within one hour) of sample collection. Or 2. A small quantity of a body fluid, such as sweat or urine, from a person or animal exposed to a high level of amphetamine, has contaminated the collection vessel directly or from the environment.' 47. He then opined that: 'The fact that both the active drugs and the metabolites were in such trace levels, and the fact that the metabolite was present at between 1/20th and 1/5th the level of the parent drug indicate exposure to a very small dose. I consider it highly unlikely that the performance of this dog was in any way affected by the drug. This assumes that the substances were in fact in the dog at the time of racing. I believe the real possibility exists that drugs in the collection vessel came from environmental contamination and were never in the dog at all.' 48. He then repeated his conclusions, as just stated, based on the combination of the drugs found and their estimated levels." (Emphasis added.)
4. The Tribunal then summarised Dr Karamatic's evidence at [49]-[58] as follows: "49. Dr Karamatic in his report of 30 August 2022 set out why the particular three drugs are permanently banned prohibited substances and this being not an issue need not be examined. He noted their absence as registered products. He noted their stimulant and euphoric effect. He noted that in humans it is capable of reducing fatigue and enhancing athletic performance. He noted amphetamine can be a metabolite of methamphetamine. 50. He noted amphetamine has a relatively short half-life of around 4.5 hours in the dog. 51. He then noted that the exposure of a greyhound to methamphetamine or methamphetamine and amphetamine could result in the detection of amphetamine, 4-hydroxyamphetamine and methamphetamine in the subject sample. 52. He then noted various human studies on detection and times of detection. 53. Having noted the qualitative levels detected in this case, he said they are typical compared to the majority of the previous positive swab cases with which he has been involved, which typically involved detections of amphetamine at between 1-50 ng/ml. 54. As is invariably stated he then said: '… It is not possible to distinguish whether the concentration measured in that sample is as a result of a recent exposure to a small amount of the substance (e.g. contamination), or an earlier exposure to a large amount of the substance (e.g. therapeutic dose several days prior), or even a very recent administration (e.g. doped immediately prior to racing).' 55. He then expressed an opinion on the scenarios identified by Dr Major. 56. As to theory one as to exposure within one hour of sample collection, he said, 'this could be one of many possible scenarios.' 57. He continued that the exposure could have been at any stage over the preceding several days. He then noted that the substance, amounts and route of exposure and other factors will all impact on the likelihood of any approximate concentration being detected. He said, however, that the scenario identified here because of security arrangements did not seem likely. 58. In respect of Dr Major's theory two about the contamination of the collection vessel, he described the normal sample collection process. He referred to the use of the control solution. He therefore concluded: 'It does not seem likely that accidental contamination from bodily fluids such as sweat or urine could occur even if another nearby person or animal had a high level of amphetamine in their system.'" (Emphasis added.)
5. Under the heading "Submissions", the Tribunal summarised the Commission's submissions first. It is not necessary to refer to those except to note that at [70]-[75] the Tribunal stated this: "71. The respondent submitted on Dr Karamatic's evidence to the effect that the theories set out above about contamination, therapeutic dose several days prior or doped immediately prior to racing and the reasons for those conclusions aid the respondent. 72. It was noted that Dr Karamatic did say that exposure within one hour of sample collection could be one of many possible scenarios and the respondent then relied upon Dr Karamatic's responses that that could be at any stage over the preceding several days. 73. Reliance was also placed upon Dr Karamatic's evidence that it did not seem likely that the accidental contamination in the collection vessel from body fluid could occur even if another nearby person or animal had a high level of amphetamine in their system. 74. Therefore, it was submitted there was no evidence to support conjecture advanced by Dr Major and that more was needed to address those possibilities. 75. It was submitted that a mere possibility is not enough." (Emphasis added.)
6. The Tribunal then considered the authorities relied upon by the Commission at [76]-[89] before turning to consider Mr Bell's submissions at [90]-[114] which, relevantly, included the following at [108]-[109]: "108. Therefore, it was submitted that the greyhound had not been exposed to amphetamines before the race. 109. The extended definition of present, as set out above, it was submitted should be read on the basis that it did not apply to a contamination of a sample post-race. That is, the focus needs to be at the time the greyhound was presented to actually race."
7. The Tribunal noted the Commission's submissions in reply at [115]-[122] including the following at [121]: "In relation to Dr Major's evidence about the issues of metabolites in primary drugs and their levels, it is said that this does not matter. It is said that the certificate is prima facie evidence and that is what is to be focused upon. It is said that Dr Major's opinions and a general lack of evidence does not undermine that certificate."
8. The Tribunal then provided its reasons for dismissing the appeal under the heading "Discussion" at [123]-[180].
9. As for ground 1, the Tribunal found that the two contamination scenarios advanced on behalf of Mr Bell were speculative and not established. The reasons for rejecting contamination by some unknown woman were provided at [140]-[159] including the following at [152]-[154]: "152. Accordingly, Dr Major's opinion, where he concluded that 'by some route' the dog became exposed, is not able to be established on the facts. 153. Dr Karamatic only opined on a very recent administration, for example, doping immediately prior to racing, and did not give evidence of this particular possibility. He did, however, concede exposure within one hour of sample collection was a possible scenario. However, the evidence does not enable that scenario to be found. 154. Therefore, that route of contamination is not found, but the emphasis in the appellant's case had been upon the procedural issues." (Emphasis added.)
10. The Tribunal then considered the second factual matter under the first ground from [160]-[177], which pertained to the hydration policy. The Tribunal noted that there was no evidence of any actual handing of a water bottle and found (at [165]) that "[t]he evidence does not establish that the water bottle has any relevance to the failure to follow procedures." The Tribunal concluded (at [169]) that "The prima facie certificate issued under Rule 81 remains intact." The effect of this finding was that the first ground of challenge, which depended on a failure to follow procedures, failed.
11. The Tribunal then turned to consider the second ground of appeal which depended on the evidence of Dr Major. Although the crucial passage relied upon by the Commission is [173], it is pertinent to extract [171]-[180] as follows: "171. The Tribunal accepts [Dr Major's] opinion that within hours or minutes the level of metabolites of a drug invariably exceed the level of the parent substance. The Tribunal accepts his assessment of the evidence that the metabolite hydroxyamphetamine was at a significant lower level than the amphetamine and methamphetamine. 172. The Tribunal accepts that his two theories about exposure by some route or contamination of the collection vessel are possible theories. 173. The Tribunal accepts that the totality of the evidence here establishes that because of the levels of metabolite detected, the drug was not present in the greyhound when it was originally kennelled some three hours before the sampling. 174. Noting that Dr Karamatic conceded that there was a possible scenario of exposure within one hour of sample collection, it becomes necessary to focus upon whether that could have occurred. 175. As set out, Dr Karamatic's theory that exposure could have occurred at any stage over the preceding seven days, the Tribunal determines that that does not arise on these facts. 176. As set out factually in dealing with the first two issues of the unknown female and the water bottle, the Tribunal having determined that factually that would not have led to the transmission of amphetamine or methamphetamine, means that Dr Major's opinion that exposure by some route to a very small quantity cannot be a remaining scenario. That is, a scenario relevant to the arguments of the appellant because they were based upon procedural matters and not some other type of exposure for which the appellant would escape an adverse finding. 177. The Tribunal has dealt at length with the second possible scenario identified by the appellant of contamination by sweat or urine. 178. That is the Tribunal simply does not accept that there is any evidence that could be elevated beyond a guess that someone near the collection pan, after the control solution test was done, sweated such that droplets, contaminated droplets, floated through the air and unfortunately landed in the collection pan. There is no evidence that anyone was contaminated with the two parent drugs near the collection pan. It is beyond fanciful to suggest that urine somehow came in contact with the collection pan. The Tribunal readily concedes that the appellant has not raised these possibilities. 179. As analysed above, there is simply no evidence and only surmise or conjecture that sweat or urine could have had anything to do with this positive and the evidence simply cannot go to the fact that by such means the collection vessel became contaminated. 180. The surmise and conjecture is just too great." (Emphasis added.)
12. The Tribunal went on to dismiss the appeal at [181]-[186].

Further written submissions on penalty

1. Following the Liability decision, the parties were afforded the opportunity to provide further written submissions on penalty.
2. Mr Bell provided written submissions on 9 December 2022. At [23]-[24], it was submitted that the Tribunal should assess Mr Bell "as having no moral culpability for the breach of r 83". Mr Bell contended that his plea of not guilty was "of much less significance", when taking into account that the Tribunal accepted the prohibited substances were not present in the greyhound when it was kennelled prior to the race, and because he had expressed regret in a sincere personal letter written to the Commission dated 8 December 2022. It was further submitted that general deterrence was of "limited significance" and that this case fell within the third category of cases described by Judge Williams in McDonough v Harness Racing Victoria [2008] VRAT 6 ("McDonough") as he was not culpable for the breach (this decision is discussed further below).
3. The Commission provided written submissions in reply on 12 December 2022 in which it submitted at [6]: "… the Tribunal's conclusion at Decision [173] only underscores the difficulty facing the Tribunal now, which reflects the difficulty that faced the Respondent below; it is unknown and cannot be determined on the evidence, when the drugs were, in fact, introduced into the greyhound's system. It may have, for example been after the greyhound was kennelled but before it raced."
4. This paragraph represents the totality of the submission made by the Commission at that time about [173] of the Liability decision.

The Penalty decision

1. The Tribunal's reasons on penalty were provided on 24 January 2023. It was noted (at [2]) that the Liability decision was taken into account in the Penalty decision. It was further noted (at [6]) that: "6. In an endeavour to try and finalise the matter, the Tribunal invited the parties to make submissions on penalty prior to the breach determination. The submissions for consideration, therefore, are the oral submissions made at the hearing on 18 November 2022 by the appellant and respondent, the appellant's written submissions of 9 December 2022, and the respondent's written submission of 12 December 2022."
2. The Penalty decision was lengthy and dealt with matters including the relevant penalty tables, parity cases, Mr Bell's subjective case, and submissions in mitigation. At [99]-[116], the Commission's submissions filed on 12 December 2022 were summarised. Relevantly, the following submission was noted at [101]: "101. It is said that the appellant has not done all that he should have done to avoid the presence of the prohibited substance. This is particularly said to follow as it is unknown and cannot be determined when the drugs were in fact introduced into the greyhound's system. For example, it is said it could have been after kennelling but before racing." (Emphasis added.)
3. Under the heading "Discussion", the Tribunal undertook an assessment of the objective seriousness of the conduct including the following at [132]-[141]: "132. The Tribunal finds that the parity cases to which reference has been made can be distinguished on the basis of the facts and circumstances of this case. 133. That arises because the Tribunal is satisfied that it is invariably the case when the source of contamination cannot be established that the whole of the husbandry practices of a trainer and the presentation facts must be the subject of scrutiny. 134. Here, that does not arise because there is no requirement to focus upon those practices prior to the time that the greyhound was kennelled. The Tribunal set out in the breach determination the facts to support that finding. 135. In addition, there is no evidence of any action by or on behalf of the appellant from the time of the kennelling of the greyhound until the sample was taken which would go to moral culpability. The appellant was not present. 136. Of course, the respondent does not have to establish the how, when, why, or by what route the substance came to be present in the greyhound. 137. It is noted that the respondent accepts that it cannot establish deliberate conduct in the appellant. 138. At the end of the day, the Tribunal simply does not know how the substance came to be present. 139. However, that focus is upon what might have happened after the greyhound was kennelled until the sample was taken. A narrow period of time in which the greyhound was at times under the supervision of the club's officers, but also, of course, at times, under the care of Mr Xuereb, the handler. 140. The appellant has failed to establish that he was blameless. He cannot establish there was no moral culpability, whatever that is in a case such as this, because he cannot establish what did or did not happen. 141. The objective seriousness message of deterrence is limited because of the narrow time focus post kennelling." (Emphasis added.)
4. The Tribunal went on to consider the need for specific deterrence at [142]-[144] and then noted the following at [146]-[149]: "146. It is accepted that the appellant knew there would be testing if the greyhound won. But this cannot help on this case because he was not there and it was a post kennelling issue. 147. Betting matters raise no relevant facts. 148. Essentially, the deterrence message of a specific and general nature falls down to the fact that there was an unknown contamination, or administration (which has not been identified), of a permanently banned prohibited substance to a greyhound at the races after kennelling by an unknown person and that the optics of that are unsatisfactory and integrity arises for consideration. 149. The appellant does not establish he is so blameless that there should not be a consequence of this presentation on a general deterrence basis. Conjecture only remains." (Emphasis added.)
5. On the question of the length of the disqualification, the Tribunal noted mitigating factors including the following at [153] and [157]: "153. In this case, the substance was not performance-enhancing and was at trace levels and the starting point should be reduced accordingly. 157. Again, from an objective seriousness point of view, the Tribunal notes that the table would allow a discount of 39 weeks for trace levels to which the Tribunal would add it was not performance-enhancing. That discount is applied. That reduces the period of disqualification to 42 weeks."
6. The Tribunal reduced that period of disqualification further on a number of bases and then concluded as follows: "175. The Tribunal imposes a disqualification of 6 weeks. 176. The Tribunal acknowledges that that is a vastly different determination than that which the hearing panel found to be appropriate and the respondent submits should have been imposed here. 177. However, the Tribunal again emphasises the vastly different set of circumstances that have arisen in respect of the fact that the focus has been upon the post-kennelling conduct and not more. 178. This does not establish a precedent for leniency in permanently banned prohibited substance presentations generally because of the different circumstances and notwithstanding the failure of the appellant to demonstrate he was blameless. It could be said to fall between McDonough categories 2 and 3."

Grounds 1 and 2: The finding at [173] of the Liability decision

The Commission's submissions

1. Under the first ground of review, the Commission contended that the Tribunal erred at [173] of the Liability decision in finding that the prohibited drug was not present in the greyhound when it was originally kennelled before a urine sample was taken. It was submitted that finding was "not open on the evidence", or, in the alternative, was a finding that was "unreasonable, irrational and/or illogical". Under ground 2, the Commission contended that it was denied procedural fairness in relation to the finding at [173]. The Commission dealt with these grounds together in its written submissions and I propose to follow that course as well. The focus of the Commission's oral submissions was on Dr Karamatic's report to explain why the factual finding at [173] was legally unreasonable.
2. In addition to the summary of Dr Karamatic's report in the reasons of the Tribunal at [49]-[58] (extracted above at [34]), the Commission detailed some other aspects of Dr Karamatic's report. Although it was accepted that Dr Karamatic's opinion was that amphetamine has a short half-life of around 4 ½ hours in a dog, Mr Villa submitted that this evidence does not assist as to when the administration occurred as there is no evidence of the half life of methamphetamine and 4-hydroxyamphetamine nor the timing of events.
3. Mr Villa took the court to that part of Dr Karamatic's report where the absence of any useful canine administration studies for interpretation of urine concentrations and the use of human studies was noted. He then observed that the analysis for prohibited substances is qualitative and not quantitative and that the approximate concentrations are "ball park figures only and care must be taken when comparing one result with another".
4. Mr Villa placed particular emphasis on a graph at [22] of Dr Karamatic's report titled "Level of drug in greyhound urine over time", where the same (random) concentration (24) of a hypothetical drug is measured at three different points in time. The figure shows that in a case of administration of a larger amount of substance (a therapeutic dose administered several days prior or immediately prior to racing) the concentration of 24 can be reached at two points in time, the first one being shortly after administration and the second 36 hours after the exposure. In a case of exposure to a small amount of substance (contamination or a non therapeutic dose), the figure shows the peak of 24 twelve hours after the exposure.
5. Mr Villa submitted that in Dr Karamatic's opinion it is not possible to tell from a sample taken at a single point in time how the exposure occurred or where it occurred. The graphical illustration only identifies the levels in respect of one drug, whereas in this case there are three different drugs; how different substances metabolise and are excreted differ from body to body.
6. With respect to the scenarios raised by Dr Major referred to above, it was accepted that Dr Karamatic's opinion in relation to Dr Major's first scenario was that it could be "one of many possible scenarios" but that Dr Karamatic also stated that: "The greyhound may have been exposed to amphetamine or methamphetamine at any stage over the preceeding (sic) several days. The substance and amounts the greyhound was exposed to and the route of exposure, along with various factors to the individual greyhound, will all impact on the likelihood of any approximate concentration being detected in a sample. Given the normal security arrangements applied to greyhounds at race meetings and those sampled, this scenario does not seem likely. Ultimately it is up to decision makers to determine the likelihood of one exposure against all other hypothetical scenarios." (Emphasis added.)
7. In light of this evidence, Mr Villa submitted that the finding by the Tribunal at [173] is an "utterly irrational finding" which has "no basis in the evidence" when the evidence is taken as a whole, such as to give rise to jurisdictional error of the kind discussed in cases such as Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 ("Li").
8. It was submitted that Dr Major does not explain the point in time after the administration of a pharmacological dose and the test being undertaken. Nor was this explained by the Tribunal when dealing with this evidence. It was also submitted that Dr Major's opinion was in response to a question asked about the levels of the three substances, which may have been an acknowledgement of a pathway from methamphetamine metabolised to amphetamine and then 4‑hydroxymethamphetamine. He further submitted that Dr Major did not say that amphetamine is a potential metabolite of methamphetamine whereas in Dr Karamatic's opinion that could be the case.
9. Mr Villa submitted that the finding at [173] is founded upon what appears at [171] but that there was no evidence before the Commission or the Tribunal as to what period of time had passed between the kennelling and the race that would enable a conclusion about the drug being not present when it was originally kennelled.
10. Mr Villa further submitted that there was no evidence either way that the greyhound was originally kennelled three hours before the sampling and that without there being some basis for saying that there could be no basis for making a finding whether the drug was present or not. He further submitted that the Tribunal based its finding on the time periods in Dr Major's report in circumstances where there was an ambiguity as to how many hours the reference is made to. It was submitted that there is a big difference between minutes and hours.
11. As for the complaint of a denial of procedural fairness, Mr Villa submitted that not only was there no evidence presented by either the Commission or Mr Bell that could lead to the conclusion that the greyhound ingested the prohibited substances within an hour or so after it was first kennelled, neither party made any submission to that effect. The Commission was given no notice of the proposed finding and, it was submitted, no opportunity to be heard. It was submitted that this lack of procedural fairness without more constitutes error particularly given the significance of the conclusion as to the penalty that was imposed. Reliance was placed on the fact that it was not Mr Bell's case that the substances were ingested one to three hours prior to the urine test. Dr Major considered it could have been within one hour of sampling. It was also submitted that the basis for the Tribunal's rejection of Dr Karamatic's evidence that the drug had been administered prior to the dog being presented was neither apparent, or intelligible.
12. Despite this, it was accepted that the Commission was on notice that Mr Bell contended that the scientific evidence established that the substances were introduced after the completion of the race before the Tribunal.

Mr Bell's submissions

1. Mr Bell submitted that the Commission's first ground ought to be rejected. It was submitted that the Tribunal's reasoning did not rely upon the finding that the greyhound had "ingested the prohibited substances within an hour or so after it was kennelled". Furthermore, the Tribunal did not reject the hypotheses about post-race contamination. Instead, the Tribunal found the hypotheses to be "possible, but not proved". Mr Bell contended that the Tribunal had accepted the scientific evidence that such contamination could have occurred but remarked that there was "no evidence" of contamination because the direct evidence was not sufficient to allow it to make a positive finding.
2. The Tribunal accepted the inference that the greyhound "was exposed to a trace amount of drug, which did not affect its performance, from an unknown source, after it was initially kennelled, but before it was tested". Mr Bell submitted that this inference was reasonably open to the Tribunal due to the following propositions being established by the evidence: 1. The levels of substance detected were mere trace amounts; 2. Dr Major's evidence was that within minutes or hours of ingesting a substance, metabolites begin to increase and eventually outnumber the parent (or active) substance; 3. There was a higher concentration of active ingredients than metabolite detected; 4. Dr Karamatic's evidence that the relatively short half-life of amphetamine would have been around 4 hours in the greyhound; and 5. The greyhound was initially kennelled about three hours prior to testing.

Consideration: Grounds 1 and 2

1. There are some difficulties with the Commission's position under the first two grounds of review.
2. The first difficulty is with the relief sought, which is that the Penalty decision be quashed. The Commission's submissions in this court focused on establishing why [173] of the Liability decision was unreasonable in circumstances in which the Commission did not seek to have that decision quashed. It is not surprising that the Commission did not want the Liability decision quashed; it was a finding in the Commission's favour.
3. Given that the Tribunal stated (at [2]) that it had incorporated the Liability decision into the Penalty decision, I am prepared to proceed on the basis that what is impugned is in fact the findings stated at [134] and [141] of the Penalty decision as to the (post-race) timing of the dosing.
4. The second difficulty with the Commission's position concerns the claim that it was denied procedural fairness in relation to the finding at [173]. Even assuming for the sake of argument that it was (which, for reasons stated below, I do not accept), the Commission was afforded the opportunity to provide written submissions on the Liability decision before the Penalty decision was made. I have extracted the relevant portion of those submissions above at [35] and [37]. It could not be said that the Commission had not apprehended the significance of what was in [173] of the Liability decision: Mr Bell relied on it and the Commission responded to it. There was no denial of procedural fairness. There was ample opportunity for the Commission to challenge the finding at that stage.
5. The third difficulty with the Commission's position is that relief in the nature of certiorari is a discretionary remedy. A factor militating against the granting of a discretionary remedy is whether a plaintiff had other avenues of recourse available. In this matter, the Commission had the opportunity to raise the same arguments before the Tribunal, as it has done in this court, challenging the finding at [173] in its written submissions provided on 12 December 2022. Having chosen not to do so at that time, it now seeks to do so in this court.
6. Turning to the first ground of judicial review. The complaint regards a factual finding, namely, that the drug was ingested post-race. Proceedings for judicial review are not merits review; the circumstances in which this court exercising its supervisory jurisdiction will uphold a complaint regarding a factual finding are very limited. The Commission contended that the relevant factual finding was "not open on the evidence …. or in the alternative, was a finding that was unreasonable, irrational and/or illogical". The Commission relied on the decision of Hayne, Heydon, Crennan and Kiefel JJ in Kostas v HIA Insurance Services Pty Limited (2010) 241 CLR 390; [2010] HCA 32 at [90] in support of the first argument and Li in support of its alternate argument.
7. I propose to consider ground 1 on the basis that the Commission contends it is afflicted by legal unreasonableness within the meaning of Li at [68], [70], [71]-[74], [75], [82] and [85] and thereby invalid. This ground of review, if established, would amount to jurisdictional error.
8. In Donaghy t/as GJ Donaghy & Company Solicitors v Legal Aid Commission of NSW [2022] NSWSC 626, Griffiths AJ summarised the principles concerning a claim of legal unreasonableness derived from the relevant decisions of the High Court as follows at [93]-[94]: "[93] In raising the grounds of irrationality/legal unreasonableness, Mr Donaghy presumably relies upon cases including Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30; Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 and Davis. [94] In National Home Doctor Service Pty Ltd v Director of Professional Services [2020] FCA 386 at [119], I sought to summarise some of the relevant principles concerning review for irrationality/unreasonableness where there is a statutory source for the relevant decision-making: 1. Both grounds of judicial review are stringent and confined and require the judicial review court 'to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision' (SZVFW at [79] per Nettle and Gordon JJ) and on the basis of the factual information before the decision-maker (Stretton at [7]-[13]). 2. Where reasons are provided, they are the focal point for the assessment of legal unreasonableness (SZVFW at [84] per Nettle and Gordon JJ and Singh at [47] per Allsop CJ, Robertson and Mortimer JJ). 3. Although the standard of legal unreasonableness applies across a range of statutory powers, the indicia of legal unreasonableness must be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case and the reasoning process in review for legal unreasonableness is inevitably fact dependent (Singh at [48]). 4. Legal unreasonableness can either be 'outcome focussed' (without necessarily identifying another underlying jurisdictional error) or it can focus on an examination of the reasoning process by which the decision-maker arrived at the outcome of the exercise of power (Singh at [44]-[47]). 5. In a case where a decision-maker's statutory function calls for a 'broad and subjective' evaluation, the task of demonstrating the requisite lack of an 'evident and intelligible justification' becomes a 'virtually insuperable hurdle' (Plaintiff M64/2015 at [55]-[57]). 6. Legal unreasonableness requires the Court to acknowledge that there is 'an area of decisional freedom' vested in the decision-maker in exercising a statutory discretionary power (Li at [28] per French CJ and Singh at [44])."
9. His Honour then went on to observe this at [96]: "In assessing Mr Donaghy's complaints of irrationality and/or unreasonableness, it is important to bear in mind the observations of Bell and Crennan JJ in SZMDS at [124] that 'to describe reasoning as 'illogical, or unreasonable, or irrational' may merely be an emphatic way of expressing disagreement with it (to similar effect, see Gleeson CJ and McHugh J's observation in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 at [40] and that of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 at [5]). As will emerge, those observations have a strong resonance in Mr Donaghy's case. I do not doubt the sincerity of his subjective belief that the LAC has acted irrationally, but I do not consider that he has met the high threshold of establishing extreme illogicality, for the reasons which I now provide."
10. Noting the high threshold of establishing illogicality, unreasonableness or irrationality, I turn to consider the Commission's complaints about the finding at [173] of the Liability decision. In doing so, I note that, despite the fact that the Commission purported to only challenge [173] of the Liability decision, the Commission's submissions in this court were critical of and sought to challenge a number of the paragraphs before and after [173] in that decision as well.
11. The Tribunal accepted Dr Major's evidence that the levels found were low overall and that the principal metabolite was found at a level significantly lower than the active substances. This expert opinion led to Dr Major's hypothesis that the dog was exposed by some route "to a very small quantity of amphetamine or methamphetamine, very close to (within one hour) of the sample collection". The Tribunal also noted Dr Karamatic's acceptance that Dr Major's theory of post-race contamination was possible. Thus, the finding at [173] was based on an acceptance of Dr Major's expert evidence as to one explanation of the timing of the dosing, which Dr Karamatic also accepted was possible. On the face of it, there is nothing unreasonable about such a factual finding, particularly as it was made in the context of a rejection of Mr Bell's primary argument of contamination.
12. I have carefully considered the Commission's reasons for contending that the finding at [173] was legally unreasonable. The first was that the finding overlooked Dr Karamatic's evidence (including the graph described above) that it was not possible to say whether the trace amounts found were the product of a recent exposure to a small amount (contamination) or an earlier exposure to a larger amount. But the Tribunal did have regard to his evidence - it was summarised at [54] of its reasons extracted above. I am satisfied that the Tribunal's summary of [22] of Dr Karamatic's report at [54] of its reasons is a fair summary. I have extracted [54] of the reasons above at [34]. It can be compared with [22] of Dr Karamatic's report which was as follows: "As is the case where any sample is taken at a single point of time it is not possible to distinguish whether the concentration measured in that sample is as a result of a recent exposure to a small amount of the substance (e.g contamination) or an earlier exposure to a larger amount of the substance (e.g therapeutic dose a few days prior), or even a very recent administration (e.g doped immediately prior to racing). This is shown graphically in Figure 1 below with the hypothetical drug where the line shows the same concentration is measured at three different time points."
13. Further, although Dr Karamatic regarded post-race contamination as unlikely because of the strictness of the security arrangements, the Tribunal was satisfied there was an unknown person in the post-race kennelling area. It considered the presence of this person as the source of contamination (and the question of whether an attendant handed a bottle of water to the handler) to be "litigable matters" even if the evidence of contamination was not strong enough to ultimately be exculpatory. This is a proper basis for the Tribunal to place weight on Dr Karamatic's concession on this issue and surmise that whatever happened it was in the one hour window of the race.
14. As for the Commission's complaint that the Tribunal misstated Dr Karamatic's evidence at [174] as "seven" days prior instead of "several" days prior, I am satisfied that is a typographical error. Dr Karamatic had described this relevant time period in his report as "several" rather than "seven" days and the Tribunal correctly referred to Dr Karamatic's suggestion that a therapeutic dose could have been administered "several days" prior three times in its reasons: at [54], [71] and [72].
15. That leaves the final complaint that the basis for the Tribunal concluding that the dog had been kennelled three hours before the race as unclear. The Commission contended that there was no evidence to support that conclusion. At the hearing in this court, Mr Bell's counsel drew the court's attention to r 31(2) which provides as follows: "Unless otherwise specified, a greyhound drawn for events shall be in the hands of the stewards not later than 45 minutes before the advertised time for the first event."
16. There was evidence that the first race was at 8.18pm. On that basis, the dog must have been kennelled no later than about 7.30pm. The race commenced at 10.13pm and the dog was the subject of a urine test at 10.50pm. This is a proper basis to conclude that the dog was in the hands of the stewards "some three hours before the sampling". The Commission was unable to point to any evidence to undermine that conclusion.
17. In considering the Commission's claim of unreasonableness, irrationality and/or illogicality in relation to the finding at [173], this court had the benefit of detailed submissions regarding Dr Karamatic's report and the significance of the graph at [22] of that report. The Commission did not make those submissions in its additional penalty submissions to the Tribunal. Had these proceedings been by way of merits review, then it would have been open to this Court to conclude that it was possible that the dosing was of a higher amount some days earlier (rather than a smaller amount close to the race). But that is not the test for legal unreasonableness. The threshold of establishing unreasonableness or extreme illogicality is a high one and this court is required to acknowledge that there was 'an area of decisional freedom' vested in the decision-maker.
18. The Commission has not established that it was legally unreasonable for the Tribunal to accept Dr Major's evidence as to the timing of the dosing whilst not being satisfied that there was sufficient evidence to establish positively that there had been contamination in either of the two ways advanced by Dr Major.
19. As for the complaint of procedural unfairness, it was common ground that the Tribunal was required to afford both parties procedural fairness and that a failure to do so could constitute both jurisdictional error and error of law within jurisdiction: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at 569; [2010] HCA 1, citing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 89, 91-101, 143; [2000] HCA 57. Procedural fairness is implied as a condition of the exercise of a statutory power. The Tribunal had been conferred by statute with the power to affect Mr Bell's rights and that power is to be construed as being conferred conditionally to be exercised in a manner that affords procedural fairness to that individual.
20. I have already identified the major difficulty with the Commission's position in this regard: the complaint about a denial of procedural fairness is, in effect, that it was not on notice that the Tribunal would sentence Mr Bell on the basis that the dosing was post-race. But they were on notice of this after the Liability decision and were provided with the opportunity to submit to the Tribunal that Mr Bell should not have his penalty determined on that factual basis.
21. Not only has the Commission failed to establish a denial of procedural fairness in relation to the basis upon which Mr Bell would have his penalty assessed, I am not satisfied there was any denial of procedural fairness as to the finding at [173] in any event. The Commission contends that it was not on notice that in dismissing Mr Bell's complaint about liability the Tribunal would accept Dr Major's expert evidence as to the timing of the dosing without accepting his theories as to contamination. But the Commission's case was that the dosing was pre-race and its arguments to the Tribunal addressed that submission. The fact that the Commission was responding to arguments before the Tribunal about contamination post-race as opposed to post-race contact in a way other than by contamination does not lead to a conclusion that it was denied procedural fairness.
22. Neither of the complaints made under the first two grounds of review have been established.

Grounds 3 and 4

1. Ground 3 contended that the penalty was "manifestly inadequate" and ground 4 contended that it was "unreasonable, irrational and/or illogical". At the hearing, the Commission acknowledged that the decision would be unreasonable or irrational because it was manifestly inadequate. In other words, these two grounds both contend for the same error: legal unreasonableness. A similar ground was relied upon in Kavanagh v Racing New South Wales [2019] NSWSC 40 ("Kavanagh"). In Kavanagh, Fagan J considered the concept of "manifest inadequacy" in the context of judicial review proceedings and was satisfied that a penalty that was so manifestly lenient as to be plainly wrong and unjust within the fifth limb of House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 was also legally unreasonable for the purpose of judicial review.
2. In written submissions, the Commission's position was that even if it did not succeed on grounds 1 or 2, it maintained its position that the penalty was manifestly inadequate. It was submitted that the six-week disqualification period would not have any deterrent effect on Mr Bell, as he already had a previous and similar contravention on his disciplinary record.
3. The Commission recognised that the Tribunal retains a broad discretion regarding the disciplinary action it can impose (guided by the penalty guidelines and past decisions) but submitted that the Tribunal did not explain, on the face of the Penalty decision, why they distinguished the current case from previous decisions relating to contravention of r 83.
4. It was submitted that the Tribunal's conclusion that an 81-week disqualification should be used as a "starting point" (by reference to the Penalty guidelines), on the basis that the case was not "standard", only warranted a proportionate reduction in the starting point and did not warrant moving the starting point itself.
5. The Commission accepted that Mr Bell was entitled to some discount based on his subjective circumstances, but it was submitted that this discount was given after the Commission had already reduced the indicative "starting point" by 33%. The Commission contended that there was no rational or objective basis for the Tribunal to "dramatically" reduce the penalty to a six-week disqualification (which was suspended), that suspending the disqualification was not supported by the Greyhound Racing Act and that the decision lacked any "logical or rational basis".
6. The Commission submitted that the Tribunal erred in concluding that the matter "fell between categories two and three in McDonough". The Commission contended that the matter was not a category three matter as Mr Bell did not provide any evidence which established that he was innocent. It was submitted that the matter fell within category two as there was no evidence which explained how the prohibited substance entered the greyhound.
7. The Commission argued that the Tribunal departed from previous authority, without any logical or intelligible basis for doing which so, which led to the imposition of a penalty that was manifestly inadequate, especially given that the Tribunal initially concluded that a 42-week disqualification was necessary to achieve deterrence.

Consideration: Grounds 3 and 4

1. The Commission has not established that the penalty imposed on Mr Bell was plainly unjust.
2. Contrary to the Commission's submissions, once the challenge to the factual finding (that Mr Bell's penalty fell to be assessed on the basis that a trace amount of the prohibited substance was ingested by the dog post-race) failed, then the penalty imposed was a lenient one but not legally unreasonable, or plainly wrong and unjust.
3. During the hearing, Mr Villa conceded that if, hypothetically (and contrary to his argument), the court found that it was open to the Tribunal to make the finding at [173], it could not be said that the penalty imposed would be manifestly inadequate. But this was said to be on the basis that it would be a "category 3 McDonough" case.
4. This reference to a "category 3 McDonough case" is to the decision in McDonough v Harness Racing Victoria. McDonough was an appeal to the Victorian Racing Appeals Tribunal against the penalty imposed for that plaintiff's breach of the rule that made it an offence for a trainer to present their horse not free of prohibited substances. Judge Williams identified three categories of prohibited substance cases: "… [g]enerally, and I emphasise generally, fall into' Category 1, the most serious category which may attract high penalties, is where there is evidence establishing a positive culpability on the part of the person responsible such as the trainer. Category 2 is the most common scenario and occurs where the Tribunal is left with no real idea as to how the prohibited substance came to get into the animal. The penalties for that sort of case turns on the particular facts. Category 3 is where the Tribunal accepts an explanation which demonstrates that the Tribunal has no culpability at all, which would likely be reflected in the penalty." (Emphasis in original.)
5. At [178] of the Penalty decision, the Tribunal concluded that Mr Bell's conduct fell "between McDonough categories 2 and 3". It was not able to find how the substance came to be present but did not find that Mr Bell was blameless and had no moral culpability at all (at [138] and [140]). It was on that basis that the Tribunal found the conduct to fall somewhere between categories two and three. These three categories are not enshrined in legislation and, as his Honour pointed out, the three instances generally fall into these three categories. I see no error in that approach.
6. Grounds 3 and 4 have not been established either.

Conclusion

1. It is to be accepted that the penalty imposed on Mr Bell was significantly reduced by the Tribunal on appeal. But that was largely the result of the factual finding upon which he came to be re-sentenced. Although it would have been open to the Tribunal to have made a different factual finding and to have imposed a different and more severe penalty, the Commission has failed to establish that the decision was infected by legal unreasonableness such that it should be quashed.
2. Accordingly, I make the following orders: 1. The summons is dismissed. 2. The plaintiff is to pay the first defendant's costs on the ordinary basis.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 September 2023