Kavanagh v Racing New South Wales

Racing NSW's power to license trainers

1. Under s 4 of the Thoroughbred Racing Act 1996 (NSW), Racing NSW is established as a body corporate. By s 13 it has the functions, amongst others, of controlling, supervising and regulating horseracing in New South Wales. By ss 14 and 14AA of the Act, Racing NSW is empowered to license or refuse to license, inter alia, horse trainers. It may cancel or suspend trainers' licenses. Racing NSW also has power to make local rules of racing. It has made a body of Local Rules ("LR") which provide, in LR 51 and 77-81A, for the licensing of horse trainers.
2. The plaintiff has worked with racehorses from the age of 15. He graduated through the roles of stable hand, stable foreman and racehorse owner. He commenced as a licensed trainer at the age of 25. He was 28 when he committed the breaches of the Australian Rules which are the subject of the Tribunal decision under review.
3. Pursuant to s 14(2) of the Thoroughbred Racing Act, Racing NSW may impose upon a person licensed by it a penalty for any contravention of the Rules of Racing. Those rules are comprised of the Australian Rules of Racing adopted by the Australian Conference of Principle Racing Clubs (of which Racing NSW is a member) and the Local Rules made by Racing NSW itself. The available penalties include disqualification with respect to a licence.

Stewards' imposition of penalties and appeal therefrom

1. Australian Rule 8 requires that stewards be appointed by Principal Racing Authorities, including Racing NSW, to "inquire into and adjudicate upon the conduct of all … licensed persons" (AR 8(d)) and to "penalise any person committing a breach of the Rules" (AR 8(e)). Local Rule 8 provides for the Board of Racing NSW to appoint stewards to fulfil the functions required by AR 10. Racing NSW appointed stewards, who held office in 2015 and who inquired into the alleged breaches of Rules by the plaintiff. The stewards imposed penalties of disqualification in September 2015. I will defer to the end of these reasons consideration of the issue raised by the plaintiff's ground 6 and by the declaration claimed at par 1A of the summons, namely, whether the stewards have power to impose penalties, either by delegation from Racing NSW or otherwise. The asserted of errors of law in the Tribunal's finding of breach and in its determination of penalty will be considered first.
2. Pursuant to s 42 of the Thoroughbred Racing Act a person aggrieved by a decision of a "racing authority" to disqualify the person or to revoke or suspend a license has a right of appeal against the decision to the Appeal Panel. The term "racing authority" includes the stewards of Racing NSW. Section 45 provides that Racing NSW is to appoint suitably qualified persons to be members of an Appeal Panel. The Appeal Panel is to proceed by way of a new hearing (s 43) and may dismiss the appeal, vary the decision appealed from, substitute a different decision, refer any matter back to the racing authority for rehearing or make any other order it thinks fit (s 44).
3. A person aggrieved by a decision of the Appeal Panel may appeal to the Racing Appeals Tribunal constituted under s 5 of the Racing Appeals Tribunal Act 1983 (NSW). Section 15(1)(a) provides for an appeal from the Panel. The Tribunal is, like the Panel, required to conduct a new hearing in which fresh evidence may be given. It has powers similar to those of the Appeal Panel to dismiss the appeal, vary or replace the decision appealed from, refer back or make any other order (ss 16 and 17).

Tribunal's findings of fact concerning breach of AR 175(h)(i)

1. In the decisions under review by the Tribunal considered 24 alleged breaches of Rules. Breach 1 was the charge under subpar (i) of AR 175(h) that the plaintiff administered cobalt to Midsummer Sun for the purpose of affecting the performance of the horse in race 6 at Gosford, the Gosford Gold Cup, on 9 January 2015. The plaintiff did not dispute that cobalt was detected in a sample taken from the horse after the race or that, at the level at which it was found, it was a prohibited substance within the meaning of AR 175(h).
2. As in force from 1 June 2015, AR 175(h) was in these terms: AR 175. The Principal Racing Authority (or the Stewards exercising powers delegated to them) may penalise: (h) Any person who administers, or causes to be administered, to a horse any prohibited substance - (i) for the purpose of affecting the performance or behaviour of a horse in a race or of preventing its starting in a race; or (ii) which is detected in any sample taken from such horse prior to or following the running of any race.
3. The Court has not been provided with any reasons which may have been given by the stewards for their decision of 31 August 2015 that the plaintiff was liable for breach 1 or for the penalty they fixed on 21 September 2015. Nor does the Court have the reasons of the Appeal Panel for upholding the finding of breach (6 May 2016) or for its determination of penalty (17 June 2016). For the purposes of this judicial review it is only necessary to consider the facts found by the Tribunal, the reasoning upon which the Tribunal held that those facts amounted to breach and the Tribunal's reasons for the penalty imposed.
4. The Tribunal found these facts at [15] of its liability decision of 23 May 2018: [In January 2015] the stewards searched the [plaintiff's] premises and found a bottle titled Vitamin Complex. Subsequently the sample produced a positive to cobalt above the threshold. Subsequent testing of the bottle disclosed cobalt at about 175 times the concentration of cobalt found in registered veterinary products for horses containing cobalt or vitamin B12. The bottle had been supplied in 2014 to the [plaintiff] by veterinarian Dr Tom Brennan, who was well known to the [plaintiff], with instructions how to administer the contents through a drip. … The [plaintiff] administered the drip to the subject horse and numerous other horses until he was notified of the positive to cobalt.
5. At [16] the Tribunal recorded that the following matters were not in issue between Racing NSW (which prosecuted the breach) and the plaintiff: [The plaintiff] did not know that the bottle contained cobalt. [He] had been specifically told by Dr Brennan that it did not contain cobalt. [T]he bottle gave no indication of who manufactured it, what its precise ingredients were or where it came from. [The plaintiff] trusted Dr Brennan. [The plaintiff] believed that it was vitamin complex and that it was a legal substance to administer.

The two elements of a breach of AR 175(h)(i)

1. The parties accepted before the Tribunal that the decision in Racing Victoria Ltd v Kavanagh [2017] VSCA 334 was binding with respect to the interpretation of AR 175(h). The majority of the Victorian Court of Appeal in that case (McLeish JA and Cavanough AJA) held that the element of "causes to be administered" in AR 175(h) does not import a requirement of proof that the person charged with breach knew or believed that the physical item administered constituted or contained a prohibited substance. It was accepted before the Tribunal that in a case such as the present, where a trainer is charged with administering rather than causing to be administered, the position must be the same. Therefore the plaintiff conceded that as he had administered the vitamin complex supplied by Dr Brennan and as it contained cobalt, it had been proved that he administered a prohibited substance.
2. However the plaintiff disputed the second element of the alleged breach of AR 175(h)(i). He submitted that in order to prove that the administration was "for the purpose of affecting the performance or behaviour of a horse etc" it had to be shown that he knew or believed he was administering a prohibited substance. The plaintiff did not contend that there had to be proved against him knowledge or belief as to precisely which prohibited substance was involved. But he argued that he could not have had the purpose specified in the rule unless he knew or believed that some prohibited substance was involved.
3. The Tribunal rejected this contention. It was held that Racing NSW had proved breach 1 although the plaintiff neither knew nor believed that the vitamin complex he administered contained a prohibited substance of any description. The Tribunal's reasons at [17]-[59] contain extensive references to Racing Victoria Ltd v Kavanagh. The Tribunal's conclusion can only be fully understood and evaluated against the background of the Victorian Court of Appeal's reasoning. I will therefore refer to the judgments in that decision before ruling upon the error of law which the plaintiff asserts.

Racing Victoria Ltd v Kavanagh - "causes to be administered"

1. Racing Victoria Ltd v Kavanagh concerned an allegation against the plaintiff's father and Mr O'Brien, both trainers, that they had breached AR 175(h)(i), AR 175(h)(ii) and AR 178 (presentation of a horse at a racecourse where cobalt was detected in a sample taken from it after the running of a race). The president of the Victorian Civil and Administrative Tribunal, Garde J, had found that both respondents authorised Dr Brennan to administer drips to horses that were under their control "as a substitute for the drench program". Dr Brennan administered the drips, either himself or by direction to other veterinarians, but added a vitamin complex without the knowledge or approval of the respondents. The vitamin complex contained the prohibited substance cobalt. Administration of cobalt "was not something that [the respondents] ever wanted, expected or suspected".
2. The majority holding in the Victorian Court of Appeal, that "causes to be administered" in AR 175(h) does not require proof of knowledge or belief that that which was administered constituted or contained a prohibited substance was supported by McLeish JA at [118] and [120]-[121]: [118] In my opinion, application of these authorities [being two decisions of the High Court and one of Lord Wright concerning the meaning of "cause" another person to act] reveals that the true question in the present case is not one of knowledge or intention about the nature of the substance in question but authority or direction to perform the act of administering it. In other words, as applied to AR 175(h), a person causes another person to administer a prohibited substance to a horse if the person either authorises that person to administer the substance to the horse or exerts a capacity of control or influence to direct the person to do so, in either case intending, contemplating or desiring that the authority or direction will be acted upon. [120] [I]t is not necessary that the person know what the substance is, in order to give the requisite authority, or to give the direction, for its administration and to contemplate that such authority or direction will be acted upon. The person may simply know of the existence of the substance and authorise its administration, ignorant as to what it is and still less aware as to its character as a prohibited substance. Such a person will have "caused" the substance to be administered. Or the person may not even know of the existence of the substance yet give permission to another person to deal with the horse in terms that authorise the second person to administer to it substances of whatever kind, whether prohibited or not. In doing so, the first person contemplates that the permission that has been given will be acted upon, albeit without necessarily foreseeing the specific course that will be adopted. Again, by the width of the authority given, the first person in such circumstances "causes" the second to administer whatever substances he or she thereafter administers to the horse. [121] I would therefore reject the contention that the language of causation imports a mental element into AR 175(h) requiring the person to be aware what substance is administered.
3. Cavanough AJA expressly adopted McLeish JA's reasons for concluding that AR 175(h) is not to be construed as "in itself … imposing a requirement of knowledge as to the identity of the substance being administered" (at [144]-[145]). At [152] his Honour said (omitting citation): I agree with McLeish JA that, for the purposes of [AR 175(h)], a person will have caused a prohibited substance to be administered where he or she has authorised the administration of a substance or exerted a capacity of control or influence to direct that to be done (or, I would add, has requested that to be done), contemplating or desiring that the substance will be administered but not necessarily knowing what the substance is.
4. Maxwell P disagreed, holding that in the opening words of AR 175(h) both the expression "administers … any prohibited substance" and the alternative "causes to be administered" import a requirement of proof that the person charged with breach knew or believed that what was to be given to the horse was or included a prohibited substance. The learned President was influenced by the meaning of the word "administer" and its derivatives in ordinary usage, by the mischief to which AR 175(h) is apparently directed and by the substantial mandatory penalties of disqualification prescribed for breach of this rule (and for breach of other rules which concern administering of prohibited substances in a range of circumstances). His Honour said: [40] Although the rules do not create criminal offences, the severity of the penalties is a key indicator here - as in the criminal law - that the offences include a mental element. What was said by the High Court in [He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43 at 583] is pertinent in this context. For example, Brennan J said: "The presumption that some form of mens rea is an element in these offences is strengthened by the severity of the penalty and the enormity of convicting a person of one of these offences if he were innocently ignorant of the contents of a container he had imported or of the nature of a substance that he had imported if the contents or the substance turned out to be narcotic goods".
5. On the facts as summarised at [22] above, McLeish JA considered that although it was not necessary for a breach of either subpar (i) or (ii) of AR 175(h) that the respondent should have known or believed a prohibited substance was in the drips which they authorised Dr Brennan to administer, they could not be found to have caused administration of the prohibited substance because they had not known or believed the vitamin complex (which contained the cobalt) would be added to the drips. His Honour said: [125] … [T]he Tribunal found that neither trainer had any awareness or suspicion that Dr Brennan intended to administer the contents of the vitamin complex bottle or any such bottle to their horses. They only knew about the administration via a drip of the substances that had previously been administered by drench. Those substances did not include the contents of any vitamin complex bottle and there was no discussion about adding any substance from any such bottle and no reason to suspect that such a thing would happen. As such, it follows that the veterinarian had embarked upon his own course, neither authorised, nor directed or controlled by the respondents, in administering the prohibited substance. In that respect, his actions resembled those of the son in Miller v Hilton (1937) 57 CLR 400; [1937] HCA 23 or the newsagent in O'Sullivan v Truth and Sportsman Limited (1957) 96 CLR 220; [1957] HCA 8, who undertook their actions independently of any authority or control on the part of those alleged to have caused them.
6. With great respect I am not able to discern from his Honour's judgment a reasoned or principled distinction between (a) authorising the drip to be administered, not knowing or believing that there would be added a vitamin complex (which contained cobalt) and (b) authorising a drip to be administered knowing that a vitamin complex would be added, but not knowing or believing that the complex would contain cobalt. In the first of these cases, on his Honour's view, the trainer would not have caused the cobalt to be administered but in the second case he would. But in both cases the trainer has approved (and therefore caused, on his Honour's reasoning) only the administration of products which so far as he is aware are innocuous. In one case the product believed to be innocuous is a drip only, in the other case it is a drip with added vitamin complex. In both cases the trainer is equally unaware of, and gives no approval for, inclusion of a prohibited substance.
7. If, as his Honour concluded, there was no "[causing] to be administered" when the veterinarian "embarked upon his own course, neither authorised, nor directed or controlled by the respondents, in administering the prohibited substance", this should turn upon the respondents' knowledge or belief or lack thereof regarding the presence of a prohibited substance, not regarding the particular medium or means by which it was introduced. With respect I am not able to identify a reasoned basis upon which McLeish JA thought the trainer would have caused administration of the cobalt if, having authorised the innocuous drip, it was adulterated with the prohibited substance without his knowledge, whereas he had not caused the administration where the cobalt was introduced as an ingredient of an otherwise innocuous vitamin complex that was added without the trainer's knowledge. Equally in both situations there appears to me to be a lack of knowledge or belief regarding the presence of a prohibited substance and therefore lack of approval and no "[causing] to be administered".
8. In addition to adopting the reasoning of McLeish JA (at [145]), Cavanough AJA said (citation omitted): [152] … I agree with McLeish JA that, for the purposes of AR 175(h), a person will have caused a prohibited substance to be administered where he or she has authorised the administration of a substance or exerted a capacity of control or influence to direct that to be done (or, I would add, has requested that to be done), contemplating or desiring that the substance will be administered but not necessarily knowing what the substance is.
9. In application of this view to the facts Cavanough AJA did not consider that the respondents had "caused a prohibited substance to be administered" because they did not know or believe that the vitamin complex would be added to the drip. But if they had known or believed the vitamin complex would be added his Honour considered they would have caused the prohibited cobalt within it to be administered. The basis for holding the trainer liable in the second case appears to have been his Honour's view that "the substance" caused to be administered should be regarded as any physical compound given to the horse. If the administration of a "substance" in this sense was approved then lack of knowledge or belief that it contained a prohibited substance as defined in the Rules would be a mere matter of not knowing the identity of the substance and would be irrelevant.
10. With respect I do not find in his Honour's reasons a compelling basis for this conclusion. The term "prohibited substance" is defined in AR 1 as: a substance declared by these Rules to be a prohibited substance, or which falls within any of the groups of substances declared by these Rules to be prohibited substances unless it is specifically excepted. It is not apparent to me how a trainer could authorise (and thereby cause) the administration of a "prohibited substance" by merely authorising that the horse be given a compound or mixture or other physical item without knowing or believing that it contained or included a "prohibited substance", as defined.
11. Consistently with the approach taken before the Tribunal, in deciding the plaintiff's summons this Court is not asked to depart from the majority view in Racing Victoria Ltd v Kavanagh that the element "causes to be administered" in AR 175(h) (and, by necessary implication, the alternative element "administers") can be satisfied without proof that the person charged knew or believed that that which was administered contained a prohibited substance. I could not depart from that view unless convinced that it is plainly wrong: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15 at 492. Although it will be apparent that I strongly prefer the reasoning and conclusion of Maxwell P (which was to the same effect as that of Garde J), it is not necessary that I should adopt a position according to the stringent standard of "plainly wrong".

Racing Victoria Ltd v Kavanagh - "purpose of affecting performance"

1. In Racing Victoria Ltd v Kavanagh the decision that AR 175(h)(i) had not been breached was unanimous, albeit on reasoning which varied as discussed above. Maxwell P thought it had to be proved that the trainers knew or believed a prohibited substance was being administered by Dr Brennan. McLeish JA and Cavanough AJA thought it only had to be proved that the trainers knew the vitamin complex was being added, without proof that they knew or believed it contained a prohibited substance. On either view breach was not established.
2. With respect to the second element of AR 175(h)(i) Maxwell P said this: [48] In my view, a person could not be shown to have had the relevant purpose - of enhancing performance - without knowledge or belief as to what it was that he/she was administering, or causing to be administered. In short, the mischief to which AR 175(h)(i) is directed is the intentional enhancement of the performance of a horse through the administration of a prohibited substance (whether or not the person responsible is aware that the particular substance is prohibited).
3. McLeish JA did not express any definitive view on whether the purpose element in subpar (i) would depend upon proof of knowledge or belief that the horse was receiving a prohibited substance. His Honour merely said (at [121]): [T]he implication of a requirement of specific knowledge is unnecessary in the case of AR 175(h)(i), whose "purpose" element expressly stipulates the required state of mind.
4. Cavanough AJA made the following observations about the "purpose" limb of AR 175(h)(i): [154] … It seems to be accepted on all sides that charges under AR 175(h)(i) involve some kind of mental element. As indicated above, I consider that the words in the chapeau of AR 175(h) convey a basic mental element, namely that the person must intend that a substance be administered to a horse. It seems to me that the "purpose" provision in sub-paragraph (i) of AR 175(h) expands that basic mental element, with the result that a person cannot be found to have administered a substance, or to have caused it to be administered, for the purpose of affecting the performance or behaviour of a horse in a race or of preventing a horse starting in a race, as the case may be, unless it be established that the person had knowledge or a belief about the identity of the substance, at least to the extent of having knowledge or a belief as to the effect or effects that the substance was likely to have on the horse. [155] In the present case, on the Tribunal's unchallenged findings of fact, it could not be said that the trainers caused a prohibited substance to be administered to the horses for a purpose proscribed by AR 175(h)(i). If they did not have any idea of the existence or the proposed use of the cobalt, how could they have had any purpose at all in relation to it?
5. This view of the purpose element substantially accords with that of Maxwell P. However as Cavanough AJA found that there was no breach of either part of AR 175(h) because the trainers did not know the veterinarian would add vitamin complex to the drip, his Honour's observations on this element were strictly obiter.

The Tribunal's conclusions on the purpose element of AR 175(h)(i)

1. The plaintiff having conceded that, because he administered the vitamin complex himself he must be taken to have administered the cobalt within it, liability for breach 1 turned upon the purpose element in subpar (i) of AR 175(h). The Tribunal concluded that the plaintiff had the proscribed purpose notwithstanding that he did not know or believe the vitamin complex he administered contained a prohibited substance.
2. At [39]-[43] of the Tribunal's reasons of 23 May 2018 some words and phrases were extracted from Racing Victoria Ltd v Kavanagh, followed by a conclusion that these dicta did not aid in construction or application of the relevant part of the rule. Apart from those paragraphs the Tribunal's reasoning appears to be encapsulated in the following (emphasis added): [37] The facts here require a different conclusion from that reached in the Victorian case. The reason is that the [plaintiff] administered a drip to which he added the vitamin complex. In the Victorian case the trainers were not aware that Dr Brennan had added the vitamin complex to the standard drip. Accordingly, here, the [plaintiff] administered a substance which contained a prohibited substance. [38] The purpose therefore was to administer the vitamin complex to [affect] the performance of the horse in the subject race. [44] The Tribunal does not find that a requirement for administration for a prohibited purpose goes beyond the fact that a purpose was established by reason of the fact that it was performance enhancing and that is what is prohibited if a prohibited substance was found in that which was intentionally administered. [45] The [plaintiff] had knowledge about the identity of the substance administered namely vitamin complex. The [plaintiff] knew of the existence of the vitamin complex in the drip. He knew what the drip was to be used for, namely to improve performance. That is the direct connection between the administration and the posited effect. [46] No extraneous substance was added to the clean drip program without the knowledge of the [plaintiff]. He added the vitamin complex. It contained cobalt but that does not become an extraneous substance as referred to by Cavanough AJA in his obiter remarks. It is not the cobalt that becomes the focus but the vitamin complex. The vitamin complex was the substance to which the purpose attached. [47] There is therefore a connection between the purpose that the [plaintiff] had, to improve performance, and the substance that was used, vitamin complex. Improving performance here goes beyond merely improving the health of a horse. [50] Here there was an intentional enhancement of performance through the administration of the vitamin complex and it is therefore not necessary to show that the [plaintiff] was aware the vitamin complex contained cobalt as a prohibited substance. [52] Accordingly specific knowledge of the presence of cobalt in the vitamin complex is not required. [53] These conclusions are reached on the basis that stringent controls on administration of drugs to horses are in place and if a trainer chooses to use a substance the onus is on the trainer to ensure that it is drug-free. That is the trainer will have administered the substance whether aware of what is in it or not and be responsible if it does contain prohibited substances. [54] The Tribunal accepts [Racing NSW's] submissions that the [plaintiff] must be shown to have administered the substance for the purpose of improving performance and must be responsible if that substance contained a prohibited substance. This follows from the draconian nature of the rule and its intended purpose. Such a conclusion places a substantial onus upon a trainer but it flows from the integrity and level playing field requirements of the rules of racing. …
3. In my view these reasons disclose an error of law. I respectfully agree with what I understand to be the view of Maxwell P and Cavanough AJA that if the trainer does not have any knowledge or belief that a prohibited substance is present in the product he administers, he could not have any purpose with respect to a prohibited substance. The two sentences at the end of [46] of the Tribunal's reasons are in direct contradiction of the words of the rule. It is not correct that the vitamin complex rather than the prohibited substance, cobalt, is the "focus". Breach of the rule cannot be made out by showing that the proscribed purpose of affecting a horse's performance "attached" to a vitamin complex rather than to a prohibited substance.
4. The Tribunal's conclusion would lead to very surprising outcomes. The trainer might administer a lawful vitamin complex with the intention of improving the health of the horse, thereby to enhance its performance. Someone placing a bet on a competing horse might have adulterated the vitamins, without knowledge of the trainer, by adding a prohibited substance which would make the horse lethargic. On the Tribunal's view of the operation of this rule, the trainer would be liable for breach on the basis that he administered a prohibited substance with the purpose of affecting the horse's performance, notwithstanding that his purpose, which attached to the lawful vitamins, was diametrically opposed to the effect of the prohibited substance that the horse received without the trainer's knowledge.
5. The Tribunal's view of the operation of the rule would not only lead to odd results but would achieve nothing. No "stringent [control] on administration of drugs to horses" would be provided by a rule that creates a penalty for a trainer on the basis that some other person has added a prohibited substance without the trainer's knowledge or belief, for a purpose in which the trainer does not share because he is ignorant of the adulteration. This would not be strict or "draconian" but ineffectual and capricious. For a rule in this context to have such a meaning it would have to be conveyed in very clear terms. I find within AR 175(h)(i) no clear words which would dictate such a construction.
6. The purpose element in par (i) of AR 175(h) requires proof that a trainer who is charged under the rule knew or believed that the product he administered or caused to be administered contained or consisted of a prohibited substance, without necessarily knowing which prohibited substance. To be liable for breach of the rule the trainer's actions must be shown to have been undertaken with a purpose of affecting, by the prohibited substance which he knows or believes he is administering or causing to be administered, "the performance or behaviour of a horse in a race" (or a purpose of "preventing its starting in a race").
7. For these reasons the Tribunal's finding that the plaintiff is liable for breach 1 and the imposition of a penalty of disqualification for that breach must be set aside.

Grounds 2 and 3 - reduction of penalty for breaches 1, 13, 14 and 15

Rules concerning reduction of mandatory penalty

1. In addition to finding breach 1 proved under AR 175(h)(i), the Tribunal found that the plaintiff had committed breaches 13, 14 and 15 contrary to AR 177B(6). The facts of these latter breaches were that the plaintiff had administered the same vitamin complex to Midsummer Sun (breach 13), Centre Pivot (breach 14) and Spring Diamond (breach 15) between September 2014 and January 2015. AR 177B(6) is in these terms: (6) Any person who, in the opinion of the Stewards, administers, attempts to administer, causes to be administered or is a party to the administration of, any prohibited substance specified in subrule (2) to a horse being trained by a licensed trainer must be penalised in accordance with AR196(5).
2. AR 196(5) prescribes that for a breach of AR 175(h)(i) disqualification for not less than three years must be imposed "unless there is a finding that special circumstances exist whereupon the penalty may be reduced". Subject to that same proviso AR 196(5) prescribes a mandatory penalty of disqualification for not less than two years for a breach of AR 177B(6).
3. Local Rule 108 contains these provisions, extracted so far as relevant: (2) For the purposes of AR 196(5), special circumstances means where: (a) the person has pleaded guilty at an early stage and assisted the Stewards or the Board in the investigation or prosecution of a breach of the Rule(s) relating to the subject conduct; or … (d) the person proves, on the balance of probabilities that, he did not know, ought not to have known and would not have known had he made all reasonable inquiries, that his conduct was in breach of the Rules of Racing.
4. The plaintiff did not plead guilty to breach 1 but contested the charge on the question of whether it was necessary for Racing NSW to prove that he knew or believed the vitamin complex he administered contained a prohibited substance. He pleaded guilty to the three charges under AR 177B(6), accepting that on the view of McLeish JA and Cavanough AJA in Racing Victoria Ltd v Kavanagh he would be regarded as having administered cobalt because he administered the vitamin complex containing it. Hence he could invoke only special circumstance (d) in relation to breach 1 (the purpose offence, contrary to AR 175(h)(i)) but he could invoke both of special circumstances (a) and (d) in relation to breaches 13, 14 and 15 (administration offences, contrary to AR 177B(6)).

Tribunal's 11% reduction for special circumstance (d) (knowledge)

1. In the hearing on penalty Racing NSW conceded that the plaintiff did not know a prohibited substance was present. The Tribunal heard evidence and submissions concerning whether the plaintiff ought to have known of the presence of a prohibited substance and whether he would have known if he had made all reasonable enquiries. That meant that the first requirement of special circumstance LR 108(2)(d) was conceded and the second and third matters were contested.
2. The vitamin complex bottle had "minimal labelling and no statement of who the manufacturer was, where it came from or its ingredients". Dr Brennan did not tell the plaintiff where the complex was made or who made it. There was no evidence anyone had tested it. The plaintiff paid $1,000 for each of two bottles of the product, each bottle containing 20 doses ($50 per dose). These facts are recorded at [33] of the penalty reasons dated 13 August 2018.
3. The Tribunal's ultimate findings were as follows: [85] It is not found that [the plaintiff] should have made arrangements for individual testing because that would place too great an onus on a trainer who is entitled to rely upon the professionalism and ethical approach if the trainer uses a well respected and recognised vet experienced in the industry. The argument that the cost paid of $1,000 per bottle should have put him on notice is not accepted as the evidence establishes that is not out of the range. [108] The Tribunal earlier determined on the issue of knowledge that there were no other enquiries that [the plaintiff] could reasonably have been expected to undertake having regard to his then level of knowledge and reliance upon a well-known and well respected and very professional vet. As previously found the absence of labelling was not enough to put the [plaintiff] to the unnecessary steps of further testing. No evidence has been adduced to indicate what other type of knowledge he might have gained if he had made other enquiries.
4. Accordingly the Tribunal was satisfied that plaintiff had proved each of the three matters in LR 108(2)(d). The Tribunal considered that, but for the mandatory minimum three years disqualification under AR 196(5), a penalty of 21 months and 2 weeks would have been appropriate for the breach of AR 175(h)(i). This followed from the Tribunal's adoption, for reasons not clearly explained, of a starting point of 3 years (at [88]) and a process of reduction for various factors. It appears that the Tribunal's calculations at [82]-[90] were for the purpose of showing that the Tribunal was driven by AR 196(5) to adopt the mandatory minimum and did not think that any higher penalty was called for.
5. At [111]-[116] the Tribunal proceeded to determine the reduction for special circumstances in relation to breach 1 as follows: [111] At the outset it is noted that there is no discount on the sub paragraph [LR 108(2)(a)] because there was no plea of "guilty". … [112] The only discount is considered under [LR 108(2)(d)]. [113] In considering an applicable discount under the 196 test a discount of 20% was given on the issue of knowledge and subjective circumstances. [114] Having regard to that finding a discount of 11% is considered appropriate on the issue of knowledge, which is the special circumstance found. [115] Accordingly the mandatory minimum penalty of 36 months is reduced by 11%. For reasons of calculation that discount is round to 4 months. [116] In respect of breach 1 there will be a period of disqualification of 32 months.
6. The reference in [113] to "a discount of 20%" is from [88], where the Tribunal earlier determined what the penalty should be on general principles, absent the mandatory minimum three years disqualification. On that approach the Tribunal thought 20% should be allowed for a combination of the plaintiff's subjective circumstances and "the knowledge issue", meaning his lack of awareness that the prohibited substance was present.
7. The Tribunal dealt with penalty for breaches 13, 14 and 15 (contrary to AR 175B(6)) commencing at [118]. At [119]-[142] the Tribunal considered the objective seriousness of these breaches, the plaintiff's subjective circumstances, his lack of knowledge of the prohibited substance and his cooperation with the stewards. Before consideration of the mandatory minimum of two years, the Tribunal arrived at a notional penalty of 10 months for each infringement. This exercise again appears to have been directed only to establishing that, applying general principles, no period of disqualification longer than the mandatory minimum was required
8. Then the Tribunal turned to the question of special circumstances and reduction of the minimum two years under AR 196(5) and LR 108(2)(d). The Tribunal held as follows: [149] These … matters enliven [LR 108(2)(a)] and (d). [150] Under subparagraph (a) a discount of 25% is allowed. [151] As for [breach 1], under subparagraph (d) a discount of 11% is allowed. [152] From the mandatory minimum penalty of 2 years disqualification a discount of 36% is allowed. This equates to approximately 8 months and 2 weeks. [153] In respect of breaches 13, 14 and 15 there will be in each matter a period of disqualification of 15 months and 2 weeks.

Error of law in adopting a reduction of only 11% under LR 108(2)(d)

1. The plaintiff's case for judicial review of the Tribunal's penalty decisions on breaches 1, 13, 14 and 15 is that a mere 11% discount under LR 108(2)(d) was so manifestly inadequate and plainly unjust in the circumstances that the Tribunal must have erred in law and in principle. The ground proceeds on the basis that the error is latent and one cannot identify where or how it has arisen in the exercise of the discretion.
2. The plaintiff thereby complains of error of the type referred to in the last two sentences of the following well known passage from the judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
3. In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 the test for applying this ground of review of a discretionary decision is expressed in the following way by Hayne, Kiefel and Bell JJ: [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust". The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
4. I accept the plaintiff's submission that the reduction of 11% is manifestly inadequate, unreasonable and plainly unjust. I consider that the adoption of this low level of discount lacks any evident or intelligible justification. The Tribunal's findings of fact concerning the plaintiff's state of mind, including those based upon Racing NSW's concessions, are summarised at [49]-[51] above. For the purposes of deciding this ground of review I put to one side my conclusion that breach of AR 175(h)(i) is not made out in the absence of knowledge or belief regarding the presence of a prohibited substance. I also put aside my reservations concerning whether the plaintiff could be found to have administered a prohibited substance upon the Tribunal is findings, which affect the first element of AR 175(h)(i) and one of the elements of AR 177B(6).
5. Assuming that the plaintiff committed breaches 1, 13, 14 and 15 his doing so was entirely inadvertent and blameless. He not only did not know of the prohibited substance that attracted the operation of these two Rules but, in the words of the Tribunal, "there were no other enquiries that [the plaintiff] could reasonably have been expected to undertake having regard to his then level of knowledge and reliance upon a well-known and well respected and very professional vet" and there was no evidence "to indicate what other type of knowledge he might have gained if he had made other enquiries".
6. In an appropriate case, special circumstances for the purposes of AR 196(5) could be of such significance as to warrant reduction of a mandatory minimum period of disqualification to nil. A reduction to nil was open in this case. It was open to the Tribunal to conclude that no rational purpose could be served by imposing a penalty of disqualification in the circumstances found. The Tribunal's findings mean that Dr Brennan acted culpably and that the plaintiff was deceived by him, horses were administered prohibited substances but the plaintiff was not responsible.
7. At [24], in considering the objective seriousness of breach 1 and (apparently) breaches 13, 14 and 15, the Tribunal found: [24] [The plaintiff] engaged in serious misconduct involving several undisciplined attempts to cheat and undermine the concept of a level playing field over a period of some five months with sustained and serious wrongdoing. These incidents were not isolated all one of aberrations.
8. That paragraph expresses conclusions or characterisations from the findings of fact. The words "misconduct", "cheat" and "serious and sustained wrongdoing" necessarily involve that the plaintiff was conscious of a prohibited substance being administered or at least that he was recklessness as to this. That is directly contradicted by the Tribunal's substantive findings at [85] and [108] (quoted at [51] above). The Tribunal's use of the quoted words was insupportable and gravely unfair to the plaintiff.
9. This egregious mischaracterisation of the objective seriousness of the plaintiff's breaches would constitute a specific error in the exercise of the Tribunal's discretion to discount the penalty under LR 108(2)(d). It amounts to mistaking the facts and allowing extraneous and irrelevant matters to guide the decision. In the face of the Tribunal's finding that the plaintiff did not know, ought not to have known and would not have known had he made all reasonable inquiries, that the prohibited substance was in the vitamin complex which he administered, the characterisations of serious misconduct, cheating and sustained and serious wrongdoing are non-existent and therefore irrelevant matters. The plaintiff has not relied upon this as a specific error but it is indicative and supportive of the proposition that the 11% discount involves at least latent error and is unreasonable and plainly unjust.
10. The Tribunal also found the following (emphasis added): [27] Having administered the substance with that purpose [contrary to AR 175(h)(i)] the horse was presented to race. The level playing field test is breached. The detection of an administration other than for affecting performance [AR 177B(6)] is also a serious matter not consistent with a level playing field. A strong message of the type described above must be given to [the plaintiff] and the industry at large.
11. The last sentence of this paragraph is, again, unsustainable. Specific deterrence of the plaintiff could have no possible relevance where the Tribunal's findings of fact show that his breaches were inadvertent. Disincentive, by the spectre of punishment, cannot operate to deter unconscious infringements. With respect to general deterrence, there could be some purpose to imposing punishment on an inadvertent offender by way of discouragement to others who might commit the same offence with knowledge or belief that a prohibited substance was administered, or without having made reasonable inquiries. But as a matter of principle this consideration could not be taken into account in fixing penalty without qualifying it by regard to the potential unfairness of making an example to others out of a person who is himself without blame. This is the same qualification as applies when a sentencing judge treats an immature offender, or one with low cognitive function or severely disadvantaged background, as an unsuitable vehicle for general deterrence.
12. Again, although the specific errors in [27] of the Tribunal's reasons are not relied upon by the plaintiff independently, they reinforce the conclusion that the end result involves latent error. The 11% appears on the face of the reasons to be a figure selected arbitrarily, without "evident or intelligible justification" and bearing no proportion to the overwhelming mitigation of the plaintiff's breaches arising from his innocent state of mind.

Ground 5 - procedural fairness

1. The plaintiff's procedural fairness ground, set out at [6], is conceded by Racing NSW. Breaches 1, 2 (an administration offence contrary to AR 175 (h)(ii)) and 3 (a presentation offence contrary to AR 178) were all found proved on the basis of cobalt having been detected in the sample taken from Midsummer Sun at Gosford on 9 January 2015. The Tribunal fixed disqualification periods of 32 months, 13 months and 10 months, respectively.
2. The Tribunal also found the plaintiff liable for breach 5, a presentation offence (AR 178) particularised as bringing Midsummer Sun to Gosford racecourse to compete when another prohibited substance, caffeine, was detected in a sample from the horse. The Tribunal said with respect to the facts of this breach: [23] Breach 5 is a case where detailed facts are not known. It is only known that there was a race day presentation and the horse contained caffeine. The reasons for the presence of caffeine and its level not known.
3. All of breaches 1, 2, 3 and 5 had in common that they concerned prohibited substances in the same horse, which had competed. They were dealt with by the Tribunal as a group, described as "in competition breaches". Racing NSW did not submit to the Tribunal that there should be any accumulation of penalty for these matters. Therefore the plaintiff had nothing to respond to on the subject. The Tribunal did not hear any submission from him concerning concurrence or accumulation, presumably because Racing NSW had not asked for accumulation.
4. However The Tribunal said: [99] The parties have not invited the Tribunal to do other than make these penalties [for breaches 1, 2, 3 and 5] concurrent. It seems open to consider whether that caffeine matter should be treated as a concurrent matter. That issue will be further canvassed although the parties agreed upon grouping for in competition testing matters.
5. At [194] the Tribunal determined that the 10 months disqualification for breach 5 should be cumulative on the three concurrent periods of disqualification for breaches 1, 2 and 3. Racing NSW's concession of procedural unfairness is properly made. In so far as the Tribunal decided that the 10 months disqualification for breach 5 should be cumulative on the concurrent 32 months for breaches 1, 2 and 3 the decision must be set aside and the matter remitted for redetermination according to law.

Ground 6 - authority of the stewards

1. Ground 6 is reproduced at [7] above. The following parts of AR 175 are relevant to this ground (emphasis added): AR 175. The Principal Racing Authority (or the Stewards exercising powers delegated to them) may penalise: (a) Any person who, in their opinion, has been guilty of any dishonest, corrupt, fraudulent, improper or dishonourable action or practice in connection with racing. (f) Any person who refuses or fails to attend or give evidence at any investigation, inquiry or appeal when directed or requested by the Principal Racing Authority, or other person authorised by the Principal Racing Authority, to do so (h) Any person who administers, or causes to be administered, to a horse any prohibited substance - (i) for the purpose of affecting the performance or behaviour of a horse in a race or of preventing its starting in a race; or (ii) which is detected in any sample taken from such horse prior to or following the running of any race. (k) Any person who has committed any breach of the Rules, or whose conduct or negligence has led or could have led to a breach of the Rules. (l) Any person who attempts to commit, or conspires with any other person to commit, or any person who connives at or is a party to another committing any breach of the Rules.
2. Breach 18 which is referred to in the plaintiff's ground 6 was a contravention of AR 175(a) committed on 2 September 2014. The particulars of the charge were that the plaintiff entered and started a horse named The Sharpener in an official trial at Rosehill when he had administered or caused to be administered a substance for the purpose of affecting the horse's performance. It was alleged that the prospects of the horse being purchased at a forthcoming sale in which it was listed were thereby improved.
3. The plaintiff's contention is that the stewards had no lawful authority to penalise him for breaches of any subparagraph of AR 175, in particular subpars (a), (h)(i) and (h)(ii), and that consequently the Appeal Panel on appeal from the stewards and the Tribunal on appeal from the Panel had no such power. When subpars (k) and (l) of AR 175 are considered it appears the effect of the words in parentheses in the opening line of the rule are applicable not just to breaches of the subrules of AR 175, such as (a) and (h), but that the stewards exercising delegated powers may penalise any breach of the Rules.
4. The words emphasised in bold in the portion of AR 175 set out above were inserted by resolution of the Directors of the Australian Racing Board on 10 April 2015. The amendment took effect from 1 June 2015. That was after the plaintiff's breaches but before the stewards imposed their penalties on 21 September 2015. The Directors at the time of passing the amendment also resolved to advise Principal Racing Authorities (which included Racing NSW) "to expressly delegate to the stewards the powers to penalise set out in AR 175".
5. In accordance with that advice, on 21 April 2015 the Chief Executive Officer of Racing NSW issued to the Chairman of Stewards a form of delegation in these terms: As authorised officer with the delegated authority from the Board of Racing NSW: 1 I sub-delegate to the Racing NSW Stewards the power to penalise persons pursuant to AR 175. 2 I authorise the Racing NSW Stewards and the Racing NSW Investigators to direct or require person (sic) to attend and/or give evidence at any investigation, enquiry or appeal is referred to in AR 175(f).
6. The plaintiff submits that Racing NSW has no power to delegate to the stewards any of its functions. It is submitted the Chief Executive Officer likewise has no power to sub-delegate to the stewards any function which Racing NSW has delegated to him. This position is said to arise because the stewards are not an "authorised person or body" within the meaning of s 24(3) of the Thoroughbred Racing Act. That section is as follows: 24 Delegation of functions (1) Racing NSW may delegate to an authorised person or body any of its functions, other than this power of delegation. (2) A delegate may sub-delegate to an authorised person or body any function delegated by Racing NSW if the delegate is authorised in writing to do so by Racing NSW. (3) In this section, authorised person or body means: (a) the Chief Executive or any other member of Racing NSW, or (b) a committee of Racing NSW or any member of such a committee, or (c) a race club or racing association.
7. I understand the plaintiff's submission to be that in the absence of a delegation to a person or body within subs (3) of s 24, Racing NSW's functions must be discharged by its members (being the Chief Executive and seven other members appointed under s 6), who must meet and conduct business by majority decision in accordance with the procedures in ss 19 and 20.
8. These submissions require consideration of what is the relevant "function" of Racing NSW. Its functions are prescribed in s 13, of which the following parts appear to be material for present purposes: 13 Functions of Racing NSW (1) Racing NSW has the following functions: (a) all the functions of the principal club for New South Wales and committee of the principal club for New South Wales under the Australian Rules of Racing, (b) to control, supervise and regulate horse racing in the State, … (e) such functions as may be conferred or imposed on Racing NSW by or under the Australian Rules of Racing or any other Act … (2) The functions of Racing NSW are not limited by the Australian Rules of Racing and are to be exercised independently of Racing Australia Limited.
9. Relevantly to the present case, functions have been conferred upon Racing NSW by the following parts of the Australian Rules Racing: AR 1. In the interpretation of these Rules, (and of any programme of a race meeting held thereunder), the following words unless the context otherwise requires, shall have or include meanings as follows:- "Stewards" means the persons appointed as such in accordance with the Local Rules of a Principal Racing Authority and includes Deputy Stewards duly appointed. AR 7. A Principal Racing Authority shall: … (ii) have the control and general supervision of racing within its territory; (iii) in furtherance and not in limitation of all powers conferred on it or implied by these Rules, have power, in its discretion:- ... (c) To inquire into and deal with any matter relating to racing and to refer and/or delegate any such matter to stewards or others for investigation and and/or for hearing and determination and, without prejudice to the generality of the foregoing power, to inquire at any time into the running of any horse upon any course or courses, whether a report concerning the same has been made or decision arrived at by any Stewards or not. (d) To penalise:- (i) any person contravening the Rules or disobeying any proper direction of any official, or (ii) any licensed person or official whose conduct or negligence in the performance of his duties has led, or could have led, to a breach of the Rules. (e) At any time to exercise any power conferred on Stewards by the Rules. … (q) To appoint such persons as the Principal Racing Authority thinks fit for the purpose of hearing and deciding appeals and applications as provided for in its Rules or by law, and for that purpose to delegate to such persons any of the Principal Racing Authority's powers under these Rules. (r) Notwithstanding the provisions of AR 10 and AR 10A, to appoint such person or persons as the Principal Racing Authority thinks fit to hear and adjudicate upon any matter or charge brought by the Stewards relating to a breach of such of the Rules as may be specified by the Principal Racing Authority; and to delegate to any appointee or appointees so much of its Principal Racing Authority powers as would enable them to discharge the responsibilities of their appointment. AR 8. To assist in the control of racing, Stewards shall be appointed according to the Rules of the respective Principal Racing Authorities, with the following powers:- … (d) To regulate and control, inquire into and adjudicate upon the conduct of all officials and licensed persons, persons attendant on or connected with a horse and all other persons attending a racecourse. (e) To penalise any person committing a breach of the Rules. AR 10. The Stewards may at any time inquire into, adjudicate upon and deal with any matter in connection with any race meeting or any matter or incident related to racing. AR 10A. (1) The Stewards may inquire into, and adjudicate upon, any incident or occurrence arising at any official trial or training facility. (2) Without limiting the provisions of subr (1) of this rule, the Stewards may:- (a) inquire into and adjudicate on any misconduct occurring at any official trial, jump-out, track work, or associated activity …
10. In my view the effect of the above Australian Rules, in particular AR 8, is to confer upon Racing NSW the function of appointing stewards with the powers enumerated. In particular Racing NSW is given by AR 8(d) and (e) the function of appointing stewards with power to inquire into and adjudicate upon the conduct of licensed persons and to penalise any person committing a breach of the Rules. I consider that by appointing stewards with these powers, Racing NSW has discharged and executed the relevant conferred function. I do not consider that there arises any purported delegation to the stewards of functions otherwise conferred upon Racing NSW by the Thoroughbred Racing Act. The resolution of the Directors of the Australian Racing Board [77], the words in inserted by amendment in the opening lines of AR 175 (see [74]) and the communication from the CEO of Racing NSW to the stewards dated April 2015 (see [78]) all use the language of delegation. However I do not consider that those documents in provisions are concerned with or give rise to a delegation of function as referred to in s 24 of the Thoroughbred Racing Act.
11. As envisaged by the Australian Rules, Racing NSW made the following relevant Local Rules: LR 10. (1) The Board may from time to time appoint a Chairman of Stewards, Deputy Chairman of Stewards, and Stewards of such categories as it thinks fit. LR 12. (1) The Stewards referred to in LR 10 have jurisdiction to officiate as directed by the Board at any race meeting conducted in New South Wales or the Australian Capital Territory. … (6) The Board, or the Chairman of Stewards, may authorise a Steward or Stewards to exercise all the powers vested in the Stewards by the Rules to inquire into, adjudicate upon, and deal with any matter or incident related to racing.
12. Racing NSW duly appointed stewards. My conclusion, that this appointment and the empowering of the stewards to determine breaches and impose penalties is, of itself, the discharge by Racing NSW of one of its functions "conferred or imposed … by or under the Australian Rules of Racing", is consistent with and supported by s 42 of the Thoroughbred Racing Act. The relevant extracts of that section are as follows: 42 Right of appeal (1) A person aggrieved by any of the following decisions of a racing authority has a right of appeal against the decision to the Appeal Panel: (a) a decision to disqualify or warn off any person, (b) a decision to disqualify any horse, (c) a decision to revoke the licence or registration of any person or suspend (for any period) any such licence or registration, (d) a decision to fine any person a sum of $10 or more, (e) a decision that Racing NSW determines, by order published in the racing calendar published by Racing NSW, to be a decision that may be appealed against to the Appeal Panel. (1A) Racing NSW has a right of appeal to the Appeal Panel against the following decisions of a racing authority: (a) a decision referred to in subsection (1) (a)-(d), (b) a decision to dismiss a charge against a person for contravention of the Rules of Racing. (2) A racing authority means: (a) the stewards of Racing NSW, ...
13. By defining "racing authority" to include the stewards of Racing NSW this section gives statutory recognition to the lawful power of the stewards to make any of the decisions in subs (1)(a)-(e) of s 42. Those decisions include imposing disqualification penalties. By providing that Racing NSW has a right of appeal against decisions of a "racing authority", including the stewards, s 42(1A) makes it still further apparent that the stewards are not in any sense delegates of Racing NSW. They clearly do not make decisions in its name in a manner which would depend upon them having statutory delegation of a function from Racing NSW in accordance with s 24 of the Thoroughbred Racing Act.
14. Upon this analysis I do not consider that the power of the stewards to impose penalties depends upon s 24. Accordingly I reject the plaintiff's ground 6. The relief sought upon the basis of that ground will be refused.

Orders

1. To give effect to these reasons it will be necessary to make orders quashing the Tribunal's determination that the plaintiff is liable for breach 1 and remitting the proceedings for redetermination of (a) penalty in relation to breaches 13, 14 and 15; and (b) concurrence or accumulation of the penalty for breach 5 relative to the penalties for breaches 2 and 3. Upon publication of these reasons, the plaintiff will be requested to bring in short minutes of the orders to be made. Subject to any further submissions I propose to order that Racing NSW pay the plaintiff's costs of the proceedings in this Court.

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: 20 February 2019