Court of Appeal (WA)|2001-07-25|Before: Wallwork J, Murray J, Miller J

Harper v The Racing Penalties Appeal Tribunal of Western Australia & Ors [2001] WASCA 217 (25 July 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : HARPER -v- THE RACING PENALTIES APPEAL TRIBUNAL OF WESTERN AUSTRALIA & ORS [2001] WASCA 217

MATTER : Application for a Writ of Certiorari against THE RACING PENALTIES APPEAL TRIBUNAL OF WESTERN AUSTRALIA

THE RACING PENALTIES APPEAL TRIBUNAL OF WESTERN AUSTRALIA

Prerogative writs - Certiorari - Grounds asserting error of law on face of record and denial of natural justice - Decision of Racing Penalties Appeal Tribunal - Administration of prohibited substance - Legitimate expectation as to practice in relation to measurement of substance - Refusal of Stewards to allow legal representation

Australian Rules of Racing r 178, r 178B, r 178C, r 178D, r 199B

Second Respondents : Mr R J Davies QC & Mr A J Carr

AG (NSW) v Quinn (1990) 170 CLR 1

AG v Great Eastern Railway Co (1880) 5 App Cas 473

Banks v Transport Regulation Board [1968] HCA 23; (1968) 119 CLR 222

Baroque Holdings v Aljohn (1982) Pty Ltd; unreported; SCt of WA; Library No 940368; 20 July 1994

Brettingham Moore v Municipality of St Leonards [1969] HCA 40; (1969) 121 CLR 509

Briganshaw v Briganshaw [1938] HCA 34; (1938) 60 CLR 336

Busby v Australian Telecommunications Commission (1988) 20 FCR 463

Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383

Commissioner of Police; ex parte Edwards (1977) 32 FLR 183

Freedman v Petty and Greyhound Racing Control Board [1981] VicRp 90; [1981] VR 1001

Hall v New South Wales Trotting Club Limited [1977] 1 NSWLR 378

Haoucher v Minister for Immigration [1990] HCA 22; (1990) 169 CLR 648

Krstic v Australian Communications Commission (1988) 20 FCR 486

Kruger v Pharmacy Board of South Australia (1979) 22 SASR 339

Marshall, Margot and Discrimination Commissioner & Ors [1998] ACTAAT 258

Maynard v Osmond [1977] 1 QB 240

Maynard v Racing Penalties Appeal Tribunal (1994) 11 WAR

Nagle v Feilden; Enderby Town Football Club v Football Association [1971] Ch 591

NR Abel v DL Blizzard and Anor, unreported; SCt of Qld; Library No BC9202277; 24 November 1992; 10 December 1992

Pett v Greyhound Racing Association Ltd [1969] 1 QB 125

R v Board of Appeal; Ex parte Kay [1916] HCA 63; (1916) 22 CLR 183

R v City of Melbourne; ex parte Whyte [1949] VicLawRp 48; [1949] VLR 257

R v Commissioner of Police (NC) Ex parte Edwards (1977) 32 FLR 183

R v Dodds; ex parte Brisbane City Council [1977] QDR 379

Stampalia v RPAT of WA (P19/2000; 27/10/2000 HCA - special leave application)

Swan Hill Corporation v Bradbury [1937] HCA 15; (1937) 56 CLR 746

White v Ryde Municipal Council [1977] 2 NSWLR 909

1 WALLWORK J: I agree with the reasons for judgment of Murray J. I do not wish to add anything to those reasons.

2 MURRAY J: This is the return of an order nisi for a writ of certiorari. It was granted by Wheeler J on 19 September 2000, but it proceeded on grounds which were amended by leave at the hearing.

3 The applicant is a horse trainer registered with the Western Australian Turf Club. He entered a horse called "Corner Bleak" in a race at Belmont Park on 21 July 1999. The horse was apparently part of the screening process which is conducted, as I understand it, by the Stewards of the Turf Club. Prior to the race a blood sample was taken. The procedure requires that the sample be split in two parts. One is held in reserve while the other is submitted for analysis to the Australian Racing Forensic Laboratory ("ARFL") which is located at Royal Randwick Race Course, Randwick, NSW.

4 The ARFL returned two certificates to the Stewards. The first was its own which reported that the preliminary screening of the blood sample taken from the horse gave a plasma total carbon dioxide (TCO2) reading of 38.3 mmol/L + or - 1.2 mmol/L. That was an elevated reading.

5 That being the case, as the procedure required, the ARFL had submitted the reserve portion of the sample to a laboratory known as Racing Analytical Services Limited ("RASL"), which laboratory is located in Flemington, Victoria. The certificate of RASL was that the reserve sample showed a plasma TCO2 concentration of 36.9 mmol/L + or - 1.2 mmol/L.

6 Under the Western Australian Turf Club Act 1892 (WA), s 13, the Committee of the Turf Club is given wide powers to make by-laws, relevantly for the general management of racing. By-laws have been made. By-law 39 adopts as the rules of racing of the Club the Australian Rules of Racing as promulgated from time to time by the Australian Conference of Principal Racing Clubs and such local rules as the Committee may from time to time adopt. Stewards of the Club may be appointed and under by-law 48 they have the powers and duties which are from time to time fixed by the by-laws and the rules of racing. The

relevant provisions are to be found in the Australian Rules of Racing ("AR"), r 8, under par (d) of which the Stewards have wide powers of inquiry into and adjudication upon the conduct of all persons associated with the club and attending a race-course. Such persons may be punished by the Stewards for breaches of the ARs.

"When any horse which has been brought to a race-course for the purpose of engaging in a race is found by the Committee of the Club or the Stewards to have had administered to it any prohibited substance as defined in AR 1, the trainer and any other person who was in charge of such horse at any relevant time, may be punished, unless he satisfy the Committee of the Club or the Stewards that he had taken all proper precautions to prevent the administration of the prohibited substance."

By AR 178B(2), relative to this case, alkalinising agents are declared to be prohibited substances, presumably because they may enhance the performance of a horse during a race. As I understand it TCO2 is, or in sufficient quantities may indicate the administration to a horse, of such a prohibited substance, but it is an endogenous substance which occurs naturally in a horse and so at the levels of concentration in which the substance may occur naturally its presence as an alkalinising agent is excluded from being a prohibited substance. By s 178C(a) TCO2 at a concentration of at or below 36.0 mmol/L in plasma is not to be taken as a prohibited substance or, to put it another way, is not to be taken as indicative of the administration of the prohibited substance to the horse in question for the purposes of AR 178.

8 In the light of the certified results of the analysis of the sample to which I have referred, the Stewards of the Turf Club commenced an inquiry on 3 August 1999. They began by informing the applicant of the subject matter of the inquiry in much the same terms as I have set them out. The applicant applied for legal representation. The Stewards referred to AR 199B which deals with the question of representation and pointed out to the applicant that there was no entitlement to legal representation. Having heard the applicant's submissions as to why he thought it was necessary, they considered the matter and decided that it was "inappropriate" that the applicant be legally represented, although it is clear that after the first sitting of the inquiry the applicant's lawyer was permitted to be present at subsequent hearings as an observer with whom, from time to time, the applicant was permitted to consult.

9 Having in the context "refused" the applicant legal representation the Stewards did, however, tell him that he would be "permitted to have an equine expert or technical expert in attendance to assist you or to speak to the Stewards on the technical evidence that does present itself through the course of the inquiry." That was representation of a kind contemplated by AR 199B. Having told the applicant that, the Chairman of the inquiry added that the Stewards would consider favourably any reasonable request to adjourn the hearing "to seek the advice of your legal counsel". The applicant immediately sought an adjournment by submitting to the inquiry a document evidently prepared by his lawyers, as were a number of other documents presenting submissions and arguments upon which the applicant relied during the course of the Stewards' inquiry. The Stewards granted the application for the adjournment after the evidence currently available was placed before them. The applicant was permitted to take that evidence and seek advice upon it.

10 During the course of the hearing on 3 August 1999 there were telephone links to a Dr Vine and a Dr Duffield from the RASL and ARFL respectively. Some evidence was taken from them, particularly with respect to the effect of alkalinising agents and the measurement techniques available to the laboratories. Evidence was also led from a Mr Criddle, a Stipendiary Steward, who had visited the applicant's stables on 22 July 1999 to inspect the premises. He had spoken at that time to the applicant in relation to the feeding and handling of the horse. At the conclusion of the hearing on 3 August the proceedings were adjourned until 23 August at which time, the Chairman told the applicant, Dr Vine and Dr Duffield would be available to be questioned, as indeed was the case. In the meantime other material of relevance had been delivered to the applicant.

11 Apart from 3 August and 23 August the inquiry was convened on 13 September, 1 October, 22 October and 3 November 1999. The hearing which occurred on 3 November 1999 again involved telephone link-ups to Dr Vine and on this occasion, a Dr Snow who, with a Dr Casey, gave evidence for and were the technical experts who acted as advocates for the applicant. The applicant was informed that he would be charged with a breach of AR 178 in that he brought Corner Bleak to the Belmont Park Race-course on 21 July 1999 for the purpose of engaging in a particular race when the horse had administered to it a prohibited substance, being TCO2 at a concentration or level in excess of 36 mmol/L in plasma.

12 The hearing was then adjourned for close to the two weeks requested by the applicant and re-convened on 15 November 1999. The hearing on that day was very lengthy. Dr Snow gave more evidence on behalf of the applicant and made lengthy submissions. The applicant also called a Dr Stewart, a veterinary surgeon. Articles in learned journals were presented and debated. At the conclusion of the hearing the Stewards adjourned and after a short time returned with the finding that the applicant was guilty as charged for reasons which the Chairman, speaking on behalf of the Stewards, then gave.

13 The applicant was able to present written submissions in relation to penalty, in which the applicant continued to deny that he had administered any prohibited substance to the horse and pursued his assertion that he had taken what he believed to be reasonable and proper precautions to prevent the administration of any prohibited substance. The penalty imposed by the Stewards was disqualification for a period of 12 months.

14 From that decision the applicant appealed to the Tribunal, the first respondent to this application for certiorari. The appeal was brought under the Racing Penalties (Appeals) Act 1990 (WA), s 13(1)(a) which gives such a right of appeal to a person aggrieved by a determination of the Stewards "imposing any suspension or disqualification, whether of a runner or a person". The appeal was heard on 25 and 26 November 1999. Both the applicant and the second respondents, the Stewards, were represented by senior counsel, the same learned counsel who appeared for the respective parties before us. The three members of the Tribunal were legal practitioners.

15 The grounds of appeal contended that the Stewards had been guilty of an error of law in their interpretation of AR 178, particularly in respect of what is described as the allowance for uncertainty of measurement of + or - 1.2 mmol/L in determining the TCO2 concentration in plasma. It was contended that the applicant had a legitimate expectation that this allowance for uncertainty would be maintained and yet the Stewards departed from it, so it was contended. Further, it was argued that the applicant was denied natural justice by the refusal to allow him to be legally represented and that in relying upon AR 199B the Stewards relied upon a rule which was ultra vires. There was a failure to record procedural fairness, it was argued, in the way in which the Stewards conducted their inquiry. It was argued that there was a reasonable apprehension of bias involved in the process and there was an appeal against the severity of the penalty of disqualification for a period of 12 months.

16 The grounds were appropriate enough, but on 4 April 2000, in written reasons for decision 52 pages in length, delivered by one member of the Tribunal with which his two fellow members agreed, none of the grounds were found to be made out and the appeals against conviction and sentence were dismissed. It is apparent that the Tribunal treated the appeal, not as a "re-hearing", but as an appeal in the accepted sense of the word. They were right to do so.

17 I need not repeat here what I wrote in Danagher v Racing Penalties Appeal Tribunal (1995) 13 WAR 531, but in that case I reviewed the authorities and analysed the provisions of the Racing Penalties (Appeals) Act before concluding that:

"...the jurisdiction of the Tribunal is to conduct an appeal by way of re-hearing in the sense that it is to review the decision of the body from which the appeal comes, having regard primarily to the evidence and materials before that body, but with the power often conferred upon an appellate tribunal to supplement those materials as may seem proper. It is not a case, I think, such as is often found where an 'appeal' is provided from an administrative body, that the appeal generates a process in which the tribunal proceeds de novo upon the subject matter of the inquiry by the body from which the appeal has come, directed to making a new determination which that body was called upon to make.

In other words, in this case the Tribunal was not required to inquire anew into the question whether the horse had been brought to the race-course having had administered to it a prohibited substance and whether, if so, in the exercise of the discretion of the Tribunal the horse was to be disqualified."

18 So far as this Court is concerned, under the Act, s 14, the decision of the Tribunal on an appeal is final and binding and not subject to further appeal or review. It follows, in my opinion, that the only avenue to further contest the correctness of the decision of the Tribunal is by way of an application for prerogative relief: Re Western Australian Trotting Association; Ex p. Chambers (1992) 9 WAR 178. The merits of the appeal to the Tribunal are not susceptible of further review by this Court.

19 So far as certiorari is concerned it is useful to refer to Craig v SA [1995] HCA 58; (1995) 184 CLR 163 where at 175-6 the High Court said:

"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other Tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or Tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record'. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the 'record' of the inferior court or Tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record."

20 The application for certiorari proceeded before this Court on a number of grounds, each of which is framed as an allegation of error of law on the part of the Tribunal. The subject matter of the grounds replicates a number of the grounds upon which the applicant mounted his appeal to the Tribunal. I will not set them out in their entirety as they are lengthy and supported by particulars which really encapsulate the applicant's argument rather than identifying the matter of complaint. Their substance is as follows:

21 Ground 1 complains that the Tribunal erred in law in upholding the Stewards' finding that the applicant was guilty of the offence charged under AR 178. The argument is that TCO2 is not a prohibited substance when present in blood plasma at or below the level of 36 mmol/L, relying on AR 178C(a). The concentration in excess of that level was not established, it is argued, because, the two samples returning levels of 38.3 mmol/L and 36.9 mmol/L, when they had applied to them the level of uncertainty to which each certificate referred of 1.2 mmol/L, produced readings on the most favourable view of the evidence of 37.1 mmol/L and 35.7 mmol/L. Unless both readings exceeded 36 mmol/L, it is argued, the fact of a level in excess of 36 mmol/L could not under the Australian Rules of Racing be established. It was impermissible to depart from the allowance for uncertainty of measurement of + or - 1.2 mmol/L so that reliance could not be placed upon the expert evidence of Dr Vine and Dr Duffield to the effect that the true level of experimental uncertainty in their laboratories was + or - 0.8 mmol/L.

22 For those reasons, it is argued, there was not evidence which could be converted into the conclusion that the horse had administered to it a prohibited substance for the simple reason that the level of the substance, the alkalinising agent TCO2, was not sufficiently high. Further, it is contended under this ground that the Stewards ignored the uncontroverted evidence of the applicant, as it is said to be, to the effect that he had taken all proper precautions to prevent the administration of the prohibited substance in that he had taken "all reasonable precautions at all times to ensure the security of the horse prior to the race". The error of law on the part of the Tribunal is said to be that it assumed that the Stewards had regard to this defence provided by AR 178 and rejected it.

23 Ground 2 alleges an error of law on the part of the Tribunal in not holding the Stewards to have denied natural justice to the applicant by departing from what is described as the long established practice of accepting + or -1.2 mmol/L as the appropriate level of uncertainty of measurement of TCO2 in plasma without notice to the applicant before he entered his horse in the race for which it was presented at the race-course on the occasion in question.

24 Ground 3 alleges an error on the part of the Tribunal in respect of what is said to have been the denial of natural justice to the applicant by the Stewards in refusing to permit the applicant to have legal representation at the inquiry. This ground was amended at the hearing and now relies entirely on the proposition that the Tribunal should have held to be ultra vires the rule-making power and invalid, AR 199B and its equivalent expressed in identical terms, r 9A of the Local Rules of Racing. It is argued that because under AR 8-10 the Stewards could compel the applicant's attendance at and participation in the inquiry, he had a concomitant right to an oral hearing which carried with it an entitlement to legal representation unless that right is validly removed by legislation in the clearest terms.

25 In this case the matter was left within the discretion of the Stewards and it is argued that their decision to refuse legal representation constituted a denial of natural justice leading to the conclusion that a rule such as AR 199B which would permit such an exercise of power was ultra vires the enabling legislation and therefore invalid. Expressed in that way the argument appears to be neatly circular, but I shall return to it in due course. It is sufficient to note at this time that a particular of this ground asserts that the Tribunal erred in expressing the view that the lack of legal representation did not constitute a denial of natural justice because Dr Casey and Dr Snow "effectively acted as advocates for Mr Harper during the course of the hearing".

26 Ground 4 focuses upon particular aspects of the inquiry by the Stewards, as to which it says the Tribunal erred in fact and in law in holding that the applicant was not denied procedural fairness during the course of the inquiry by the Stewards. I may return to some aspects of this ground, but the short point which, in my opinion, effectively disposes of this ground and much of ground 3 is that in truth the error of the Tribunal complained of is said to be that it did not uphold the proposition that in a number of ways the applicant was in fact denied procedural fairness before the Stewards. In other words, what is here complained of, so far as it is said to be an error of the Tribunal rather than the Stewards, is an error of fact.

27 It is not contended that the Tribunal in any way denied procedural fairness to the applicant and in my opinion it cannot constitute an error of law on the face of the record of the Tribunal that in its reasons it declined to accept arguments that the applicant had in fact been denied procedural fairness by the Stewards. To express the ground in the form particularly of ground 4 is to treat the application for certiorari, an aspect of the original jurisdiction of this Court, as if it were a further appeal from the Tribunal and, of course, as I have noted, no such right of appeal exists, the intention obviously being to leave to the appropriate Committee, the Stewards and the Tribunal the effective governance of this racing industry, subject only to the supervisory jurisdiction of this Court and its capacity to grant prerogative relief in an appropriate case.

28 Ground 5, the last of the grounds of this application, is that the Tribunal erred in law by holding that the decision of the Stewards could not reasonably be apprehended or perceived to be adversely affected by bias on the ground that once the inquiry on 3 November 1999 led to the Stewards informing the applicant that he was charged with an offence against AR 178, the same Stewards continued the hearing by affording the applicant the opportunity to call evidence in his defence and to make submissions before they ultimately concluded that his guilt was established and proceeded to impose the penalty of disqualification to which I have referred.

29 It is important, in my opinion, in cases such as this that this Court should not lose sight of the fact that the applicant invokes its original supervisory jurisdiction by the application for prerogative relief. This Court is not concerned with the merits of the decisions taken below and in a case such as this where there is, and indeed could be, no suggestion of jurisdictional error or denial of procedural fairness or fraud on the part of the Tribunal, it is important to focus upon what is asserted to be the error of law on the face of the record to determine whether it is of the character which ought to lead to the decision of the Tribunal to dismiss the applicant's appeal being quashed because it is infected by identified error.

30 As has been seen, the errors of law asserted are said to emerge from views expressed by the Tribunal in the extensive reasons given under the hand of one of the three members of the Tribunal, with which the other members agreed. There is no doubt, in my opinion, that those reasons constitute part of the record of the Tribunal: see the views I expressed in Danagher at 546 where I reached the conclusion that the Tribunal's reasons would constitute part of the record for the purpose of an application for certiorari in reliance upon the relevant statutory provisions set out in my reasons.

31 I am conscious of the danger, in the context of an application for prerogative relief, which that approach has inherent within it. The High Court adverted to this matter in Craig at 181 where their Honours said:

"...the approach that the transcript of proceedings and the reasons for decision constitute part of 'the record' would, if accepted, go a long way towards transforming certiorari into a discretionary general appeal for error of law upon which the transcript of proceedings and the reasons for decision could be scoured and analysed in a search for some internal error. It is far from clear that policy considerations favour such an increase in the availability of certiorari to correct non-jurisdictional error of law. In particular, a situation in which any proceeding in an inferior court which involved a disputed question of law could be transformed into superior court proceedings notwithstanding immunity from ordinary appellate procedures would represent a significant increase in the financial hazards to which those involved in even minor litigation in this country are already exposed."

32 Nonetheless, upon the view I take of what constitutes the record in this case, the danger to which the High Court adverts may, I think, be guarded against if this Court is careful in its identification of relevant error of law to ground certiorari to limit it to error of a kind which may be seen, not simply to go to the merits of the case, but to properly expose the decision of the inferior court or domestic tribunal (such as in this case) to the liability to be quashed on account of the error, with the consequence that the proceedings before that tribunal may be commenced anew.

Establishing Administration of a Prohibited Substance

33 Approaching the matter on that basis, it seems to me first to be appropriate to have regard to the error for which the applicant contends affecting the capacity on the evidence to establish his guilt of a breach of AR 178. A similar point in some respects was argued in Danagher in relation to the then differently expressed Australian Rules of Racing and in that case I expressed views about the effect of some of those rules, which are now substantially replicated in the presently applicable Australian Rules of Racing: see particularly Danagher at 556-7.

34 The matter raised by ground 1 does not depend upon the standard of proof to be applied. AR 178 requires a finding by the Stewards of administration of a prohibited substance. In this case that amounted to a finding that there was, at the time when the horse was presented at the race-course for the purpose of engaging in a race, present in the horse an alkalinising agent which, by AR 178B and AR 178C(a), in this case was equated with a concentration of TCO2 in the horse's blood plasma in excess of 36 mmol/L. That then became the fact to be proved to establish administration rather than that the alkalinising agent was simply present naturally in the horse's system.

35 As to proof of that fact, AR 178D provides as follows:

"(1) Samples taken from horses in pursuance of the powers conferred on the Stewards by AR 8(j) shall be analysed by only (sic:only by) an official racing laboratory.

(2) Upon the detection by an official racing laboratory of a prohibited substance in a sample taken from a horse such laboratory shall:

(a) notify its finding to the Stewards, who shall thereupon notify the trainer of the horse of such finding; and

(b) nominate another official racing laboratory and refer to it the reserve portion of the same sample and, except in the case of a blood sample, the control of the sample, together with advice as to the nature of the prohibited substance detected.

(3) In the event of the other official racing laboratory detecting the same prohibited substance, or metabolites, isomers or artefacts of the same prohibited substance, in the referred reserve portion of the sample and not in the referred portion of the control, the certified findings of both official racing laboratories shall be prima facie evidence upon which the Stewards may find that a prohibited substance had been administered to the horse from which the sample was taken."

36 There is no question that the ARFL which first analysed the sample taken from the horse and the RASL which analysed the reserve portion of the same sample which was referred to it are official racing laboratories. Nor is there any question that the procedures contained in AR 178D(1) and (2) were followed. The two certificates were taken in evidence by the Stewards.

37 The equivalent rule when Danagher was decided, AR 117B, applied to "an analyst's report". I said of that rule in Danagher at 557 that the rule did not preclude other evidence being adduced which might be capable of establishing administration and the presence of a prohibited substance, bearing in mind that in this context that means the presence of the substance TCO2 at a concentration greater than that prescribed by AR 178C(a), the same substance at any lower concentration not being a prohibited substance for the purpose of the rules, but simply being regarded as an endogenous substance occurring naturally in respect of which under the rules administration to the horse is incapable of being established by reference to or inference from the concentration of the substance present. I said:

"The only effect of AR 117B was to give to the analyst's report to which it applied, an effect which secured its admission in evidence and gave it alone and unaided by other evidence, a prima facie evidentiary effect; made it, in other words, capable alone of establishing the facts in issue."

To my mind that conclusion may be appropriately expressed in respect of AR 178D(3). It is a prima facie evidence provision. It does not preclude reliance upon other evidence. Where it applies the certified findings are admissible without more. No evidence need be called of the process of analysis. No expert evidence need be called about the level of TCO2 established as a result of the analysis. The certificates are admissible by themselves, and of their own force and effect they establish the fact in issue of the level of the concentration of TCO2 and therefore, it may be, the fact of administration at the relevant time.

38 However, as AR 178D is expressed, it must be borne in mind that it is only one sample taken from the horse which is subjected to analysis. The sample in a case such as this is divided in two so that there is a reserve portion, but it is, and remains a portion of the same sample. AR 178D(3) only operates in the event that the laboratory performing the analysis of the reserve portion of the sample detects "the same prohibited substance, or metabolites, isomers or artefacts of the same prohibited substance" in the referred reserve portion.

39 It is not necessary, I think, because the rule refers not only to the prohibited substance, but also to metabolites, isomers and artefacts thereof, that the relevant material be detected in any particular concentration. It is to be noted that under AR 178C(a) TCO2 at a concentration of at or below 36 mmol/L in plasma is referred to as being included in "the following prohibited substances" which are excepted from the provisions of AR 178B. In other words, TCO2 does not cease to be described as a prohibited substance for the purposes of the rules because it is present at a concentration which of itself is incapable under the rules of establishing administration.

40 But it remained the case that the certificate of RASL in relation to the reserve portion of the sample would not, I think, have been admissible of itself as prima facie evidence upon which the Stewards might find that the prohibited substance had been administered to the horse because of the allowance for uncertainty of + or - 1.2 mmol/L to which it referred. As has been seen, the effect of applying that allowance to reduce the concentration found on analysis would reduce the result below 36 mmol/L. This certificate was admissible because it confirmed the presence of TCO2 in the blood sample, not of itself to establish administration, and the question which then arose was the effect that the certificate of RASL had on the admissibility of the certificate of the ARFL, which was of itself, even applying the stated allowance for uncertainty of measurement, capable of establishing administration of the prohibited substance and could therefore be prima facie evidence of those facts.

41 In my opinion the certificate of RASL was admissible because it confirmed the presence of TCO2 in the blood sample, and because, as AR 178D(3) is worded, the admissibility of both certificates is linked, that secured the admission of the ARFL certificate which was capable of establishing administration of the prohibited substance and was given the effect of prima facie evidence. It is not to the point that, as I assume to be the case, TCO2 may generally be liable to be detected, whether as the result of administration or not.

42 The Stewards gave shortly expressed reasons for their determination. Those reasons make it abundantly clear that they did consider themselves entitled to rely upon the certificate of the ARFL, but their reasons also make it abundantly clear that the Stewards correctly appreciated that they were obliged to have regard to all the evidence, including that given by the applicant and the expert witnesses, Dr Duffield, Dr Vine, Dr Casey, Dr Snow, Dr Stewart and Dr Symonds, together with a written submission of Dr Kannegieter. Particular mention was made of the expert evidence of Dr Vine, who had been extensively cross-examined. The Stewards said they accepted "the evidence and analytical findings of both the ARFL and ARSL", by which I think it is clear they included the evidence of Dr Duffield and Dr Vine. The Stewards described it as being "crystal clear" that the two laboratories in question had been able to reduce the uncertainty of measurement to 0.8 mmol/L. That had been achieved by improvements in the accuracy of the equipment rather than by any change in the method of detection. The Stewards said they had considered evidence (which was expert evidence particularly relied upon by the applicant) as to how levels of TCO2 could be elevated naturally, but they rejected that as an explanation for the levels found and expressed the conclusion "that an administration of an alkalinising agent took place."

43 The Tribunal expressed a view about AR 178D from which it followed that the Tribunal's view was that in this respect the Stewards fell into error, but the Tribunal expressed the view, with which I agree, that any such error did not affect the Steward's conclusion that the applicant's guilt of a breach of AR 178 had been established, which clearly depended upon their acceptance of a body of expert evidence rightly before them. In my opinion the Tribunal was right about that, but the Stewards made no error in their approach to this matter.

44 As to the point that the Tribunal erred in failing to conclude that the Stewards had erred by overlooking the evidence which it is asserted tended to establish the defence provided in AR 178 that the applicant "had taken all proper precautions to prevent the administration of the prohibited substance", or that if the Stewards did have regard to this evidence they should have found the defence to have been made out, this latter aspect does not raise an error of law on the part of the Tribunal at all and as to the former aspect, the Tribunal said:

"Although the Stewards did not specifically refer to this in their reasons, it does not mean it was not taken into account. It was clearly a matter the Stewards themselves called evidence in relation to and considered during the course of the inquiry."

45 In my opinion this aspect of ground 1 raises no question of law, but simply one of interpretation of the relevant events, and as to that it seems to me that the view of the Tribunal is eminently defensible. As I have mentioned, the question of the potential availability of this defence was raised by the Stewards; they called evidence relative to the issue and they questioned the applicant about it. He had the opportunity and did place before the Stewards his justification. In my opinion, having read the relevant material, it is abundantly clear that there was no evidence available to establish the proposition that the applicant had the defence that he had taken all proper precautions and the onus to satisfy the Stewards upon that issue rested upon him. The Stewards made an oblique reference to that when in the course of giving their reasons they said to the applicant that, "the onus lies with you to present your horses free of prohibited substances." It may be that the explanation for the fact that they made no further reference to the defence provided in AR 178 is the paucity of evidence capable of making the defence good.

46 As to ground 2 it will be recalled that the contention is that the Tribunal erred in not finding error on the part of the Stewards in that their approach to the case involved a departure from what is described as the long established practice of allowing a factor for uncertainty of measurement of + or - 1.2 mmol/L. The argument put is that the applicant had a legitimate expectation that that allowance would be provided unless the Stewards put the applicant on notice that the allowance for uncertainty would not be permitted "when he entered his horse to race". The applicant contends that he was deprived "of a real and legitimate expectation that he could continue to prepare his horses for racing in the belief that the uncertainty of measurement would remain at + or - 1.2 mmol/L and a full credit of 1.2 mmol/L would be allowed as a deduction from the certified measurement."

47 The short answer to the contention is simply that there was no evidence that the applicant had any such legitimate expectation. His case was not that he depended in any way upon the allowance for uncertainty of measurement in the feeding regime, in the substances he administered to the horse or in any way in his preparation of the horse to race. His case was that he administered no relevant substance to the horse. He took all precautions and he could think of no way in which the concentration of the substance in the horse could be artificially elevated.

48 For myself I can see nothing in this argument for the additional reason that the expectation relied upon is not to my mind of the character of a procedural undertaking which might be expected to have application unless the intention to depart from it had been previously notified and the opportunity afforded to the applicant to argue for the maintenance of the process which had previously been followed: Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273. In that case it had been the accepted custom of the Minister in making decisions concerning children to give primary consideration to what were conceived to be the best interests of the child, as required by Article 3 of the United Nations Convention on the Rights of the Child into which Australia had entered. In Teoh's case his application for a permanent entry permit into Australia turned on his conviction of, and imprisonment for, drug trafficking offences while temporarily in this country, rather than upon the impact of his deportation upon his wife and young children. It was held that as there had been a departure without notice from the rule that primary consideration would be given to the best interests of the children, Teoh had been denied procedural fairness in that he had not been afforded the opportunity to present a case against a decision inconsistent with that legitimate expectation.

49 That sort of case is quite different from this. Here, in my opinion, the applicant could have no legitimate expectation as to what the evidence might be which would establish the level of the alleged prohibited substance, but in any event that the Stewards proposed to have regard to evidence that the appropriate level of uncertainty was no longer 1.2 mmol/L, but had by advances in the technology been reduced to 0.8 mmol/L, was made clear in the course of the inquiry and the applicant was afforded every opportunity to deal with that evidence and he did in fact present evidence directed to what was capable of being established to be the true level of concentration of TCO2. The experts acting for him presented learned submissions and much argument upon the issue. This was noted by the Tribunal. Their decision that the contention presented to us as ground 2 was without merit was in my opinion correct.

50 As to ground 3 the proposition is that the Tribunal erred in law in upholding the validity of AR 199B and the equivalent local rule, r 9A, which relates to the question of representation before the Stewards and provides:

"A person attending or required to attend an inquiry conducted by the Stewards or the Committee of a Club or Association shall not be entitled to be represented by any other person, whether a member of the legal profession or otherwise, provided that an apprentice jockey may be represented by his master or other trainer acting for his master."

51 The ground contends that the relevant rule is ultra vires and invalid because the Stewards were required to observe the rules of natural justice (a proposition which is undoubtedly right) and in the circumstances there was an entitlement to legal representation because there was a right to an oral hearing. AR 199B is treated as removing that right and it is argued that no clear statutory power to make the rule in those terms exists. The subject matter of the inquiry was serious, affecting the applicant's livelihood, and the evidence was highly technical in nature and he lacked the skills to represent himself adequately. The prejudice he suffered, it is argued, was not alleviated by allowing Drs Casey and Snow to act effectively as the applicant's advocates as well as his expert witnesses.

52 The Tribunal does not appear to have addressed itself to the question of invalidity. I have mentioned that the legislative process commences with the Western Australian Turf Club Act, s 13, and the very wide power of the Committee of the Turf Club to make by-laws, including by-laws directed to the general management of the race-course and all races and race meetings. I have noted that under by-law 39(a):

"The Rules of Racing of the Club shall consist of the Australian Rules of Racing as promulgated from time to time by the Australian Conference of Principal Racing Clubs and of such Local Rules (including Rules of Betting) as the Committee may from time to time make or adopt."

That then is the source of the power and it may be seen that the Australian Rules of Racing derive their force and effect from their adoption by the by-law. I see no reason, however, to suppose that AR 199B is in such terms that it ought to have been held to be ultra vires the rule-making power and invalid on that account. The failure by the Tribunal to so hold does not in my opinion constitute an error of law on the face of the record.

53 Rather, the question is whether the Tribunal erred in not upholding the contention that the denial of legal representation before the Stewards constituted a breach of the rules of natural justice. In that regard it seems to me that the following propositions have merit. The Stewards were bound by the rules of natural justice. There is, I think, no line of authority which elevates the capacity to be legally represented before an inferior court or Tribunal to a right which in every case forms part of the content of the rules of natural justice, but the particular circumstances of a particular case may make it clear that to be legally represented, as by counsel, would be an essential ingredient if the Tribunal was to discharge the duty to afford procedural fairness.

54 There might be very many diverse circumstances which in a particular case would lead to that conclusion, concerned with the complexity of the proceeding, the complexity of relevant matters of fact or law, the importance of the subject matter of the inquiry, the nature of the tribunal's powers and the like. It would be undesirable to attempt an exhaustive roll-call of such matters, but in the end the matter is to be judged against the ultimate touch-stone of the obligation of law, which may only be negated by the exercise of statutory power expressed in the clearest of terms, to subject the inferior court or tribunal to the duty to afford procedural fairness to those who appear before it and are subject to its processes: Cains v Jenkins (1979) 28 ALR 219, 229-230, a case relied upon by Owen J, with whom Wallwork and White JJ agreed, in Stampalia v The Racing Penalties Appeal Tribunal of Western Australia [2000] WASCA 24; 17 February 2000 at par [31].

55 The summation of the applicant's argument is expressed in the following proposition:

"Where there exists, as here, at the very least, no right to exclude legal representation within the enabling statute, and arguably an implied conferral of the right to legal representation within the enabling statute, any rule which provides that there is no right to legal representation and according to which legal representation can, through the exercise of discretion, be denied is of necessity ultra vires the enabling statute and invalid."

In my opinion it follows from what I have said above that, as a statement of the law, that proposition may not be made out.

56 AR 199B is, of course, not solely concerned with legal representation as by counsel. The rule embodies the proposition, and in my opinion does so validly, that a body such as the Stewards are not bound to permit any party or person required to attend an inquiry to be represented, except in the particular case of the apprentice jockey. The rule does not, however, interfere with what may be an entitlement to legal representation as it may arise in a particular case. It leaves to the Stewards the obligation to make the judgment about what the particular case requires. That is a judgment which they must make against the touch-stone of the obligation to afford procedural fairness.

57 The Tribunal approached its consideration of the judgment of the Stewards in that way. It was in my opinion correct as a matter of law to do so. The Tribunal could discern no departure from the rules of natural justice in the arrangements made by the Stewards for the conduct of the proceedings before them. If that issue presented the Tribunal with a question of law I can for my part discern no error on the face of the record in the conclusion reached by the Tribunal.

58 The question was whether in the arrangements made the applicant was afforded every reasonable opportunity to test the evidence against him, to effectively present evidence on his own behalf, to make submissions to the Stewards and to present arguments bearing upon the subject matter of the inquiry, to deal with the issues raised by the charge when it was formulated and to present material of an appropriate kind to the Stewards in relation to penalty upon his conviction. Suffice it to say that he did all of those things. Certainly much of the evidence was of a technical kind. There is nothing to suggest that the experts he consulted were unable to place relevant material before the Board or to act effectively as the applicant's advocates in testing contrary propositions of an expert kind advanced by other witnesses.

59 Further, after the first day of the hearing, which was confined to the tendering in evidence of much material, the applicant was permitted to have a legal adviser present and to consult with him from time to time. The proceedings were regularly adjourned so that evidence given on a prior occasion could be thoroughly tested and other evidence, materials and argument could be marshalled. The mere fact that the applicant's legal adviser was not permitted to question witnesses and make oral submissions does not, I am satisfied, in the circumstances constitute such a departure from the rules of natural justice that the Tribunal may be said to have erred in law by not allowing the appeal made to it.

60 Central to ground 4 is the proposition expressed therein that:

"The Tribunal should have held that the principles of natural justice applied to the proceedings before the Stewards and that the applicant was entitled to be afforded a reasonable opportunity of properly considering, understanding and responding to the expert evidence relied upon by the Stewards against him and that in the circumstances the applicant had been denied such opportunity."

61 In my view I have adequately dealt with this proposition. It is, I think, without substance, if indeed, it expresses an error of law at all or of an appropriate kind. In short, however, there is no doubt that the Tribunal tested the adequacy and fairness of what occurred before the Stewards by reference to the accepted proposition that the rules of natural justice applied to them. The proceedings before the Stewards were discussed at length by the Tribunal in its reasons, and in my view they were unarguably right to accept that there had been no denial of procedural fairness by the Stewards in any aspect relied upon by the applicant.

62 Finally as to ground 5 and the allegation that the proceedings before the Stewards were, upon the formulation of the charge, vitiated by reason of a reasonable apprehension of bias, before us no argument was presented for the applicant touching upon this ground. That increases the difficulty of dealing effectively with it, but to my mind the proposition relied upon has no merit and the error of law which the ground asserts was made by the Tribunal is not made out.

63 There have been a number of cases recently, particularly in the High Court, which have discussed the application in particular circumstances of the requirement of disqualification upon the ground of a reasonable apprehension that a judicial or quasi-judicial officer or a tribunal having adjudicative powers may not be able to bring an impartial mind to bear upon the resolution of the issues before it. The authorities need not be cited here. Coincidentally I was recently required to consider their application in Re The Medical Board of Western Australia; Ex p. PKP [2001] WASC 103; 27 April 2001. I there noted a matter which appears to me to be relevant to the circumstances of this case, that an accepted ground for the exclusion of the application of the principle under discussion is in a case of necessity properly so called: see par[3] and par [4].

64 This might be such a case. It is abundantly clear, as I have already mentioned, that the Stewards are appointed under AR 8 to assist to control and general supervise racing and they are given very wide powers, including punitive powers. Under AR 8A certain powers given to the Stewards may be exercised by the Chairman of the Stewards or an individual Steward, but otherwise they act collectively. AR 9 provides that a majority of the Stewards present at any meeting of the Stewards may exercise the powers given to the Stewards and by AR 10 and AR 10A the Stewards as a body are given the power, as AR 10 puts it, to "at any time enquire into, adjudicate upon and deal with any matter in connection with any race meeting or any matter or incident related to racing."

65 It is not clear to me that there were more, and, if so, how many more, Stewards available than those who are the second respondents who participated in the investigative phase of the inquiry conducted over a number of days up to and including 3 November 1999. I do not know if it may be the case that the Stewards, having on that date formulated and laid the charge, others of their number could have been constituted to carry on

the inquiry into the phase of allowing the applicant to present any further evidence beyond that already adduced in his defence and to present arguments and make submissions to the Stewards upon the question of their determination whether or not a breach of AR 178 had been established, and if so, what punishment should be imposed.

66 It may be that of necessity the initial investigative phase of the inquiry and the ultimate adjudicative process were required to be carried out by the same individuals, but in any event, as I held of the Medical Board in Ex p. PKP, it was for the Stewards to act collectively. No Steward could be precluded from participating in any part of the process and having done so, in my view, the statutory scheme makes no provision which would require any individual Steward to stand down from any part of the process.

67 More importantly perhaps, it seems to me that a reasonable apprehension of bias could not flow merely from the fact that the charge was formulated on 3 November 1999 and the Stewards continued to hear evidence in respect of the subject of the inquiry and to receive submissions before making their decision and imposing their penalty thereafter. There is nothing in what occurred, nor on my reading of the transcript in what was in fact said or done at that time and in connection with the laying of the charge which gave any indication of pre-judgment or might suggest that the Stewards would not approach what followed with an open mind, and would not make their final adjudication impartially. I note that was the view taken of a similar argument by Owen J in Stampalia at par [51] - par [52].

68 For those reasons, in my opinion, the order nisi for certiorari should be discharged.

69 MILLER J: For the reasons given by Murray J I agree that the order nisi for certiorari should be discharged. I have nothing further to add.

Penalties (Appeals) Act 1990

Australian Turf Club Act 1892

Harper v The Racing Penalties Appeal Tribunal of Western Australia & Ors [2001] WASCA 217

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (126 paragraphs)

Harper v The Racing Penalties Appeal Tribunal of Western Australia & Ors [2001] WASCA 217 (25 July 2001)

Establishing Administration of a Prohibited Substance

Parties

Legislation Cited (2)

Cases Cited (18)