Kavanagh v Racing Victoria Limited

Kavanagh v Racing Victoria Limited - [2017] VCAT 386 - VCAT 2017 case summary — Zoe

[18]

O'Brien and Kavanagh are and were at all relevant times trainers licensed by RVL. They are bound by the Rules of Racing.[7] O'Brien was at all relevant times the trainer of each of the O'Brien horses. Kavanagh was at all relevant times the trainer of Magicool.
O'Brien retained Dr Brennan and the clinic as his veterinarian in relation to horses in his stable, including the O'Brien horses. Kavanagh retained Dr Brennan and the clinic in relation to horses in his stable including Magicool.
In 2014 and 2015, Dr Brennan was a principal and senior partner of the clinic together with Dr Ian Church. Dr Brennan became a full partner of the clinic in about 2008 after about 10 years' experience as a veterinarian.
O'Brien, Kavanagh and Kavanagh's son Sam Kavanagh were all clients of the clinic. Dr Brennan was the principal treating veterinarian to the stables of O'Brien and Kavanagh. At this time, the clinic had about 11 veterinarians and four office staff. The main premises and office of the clinic were located at Kensington, usually referred to as Flemington. Dr Brennan was mostly concerned with trainers' stables at Flemington and the branch practices at Geelong and Mornington. Dr Church attended stables at Caulfield South.
Key staff at the clinic include:
- (1) Dr Stuart Vallance, Dr Emma Wood and Dr Adam Matthews, veterinarians based at Flemington.
- (2) Dr Catherine Charlton (nee Brown),[8] a veterinarian who undertook work for O'Brien at his training complex at Barwon Heads.
- (3) Dr Amy Kelly, a veterinarian employed at the Sydney branch of the clinic and the principal vet handling Sam Kavanagh's horses in New South Wales,.
- (4) Samantha Potter, an equine nutritionist based at Flemington; and
- (5) Aaron Corby, the practice manager based at Flemington.
The stewards concerned with the investigations of the cobalt readings of the O'Brien horses and Magicool include Terry Bailey, Dion Villella and Kane Ashby. Dr Brian Stewart is the Head of Equine Welfare and Veterinary Services at RVL.

[19]

Cobalt chloride and other cobalt salts are readily available in Australia. A 100mL bottle of cobalt chloride costs about $40.
On 14 April 2014, LR 68A was brought into effect in Victoria providing that cobalt in concentrations exceeding 200µg/L in equine urine was a prohibited substance. The rule was based on cobalt levels measured in standard bred horses by Harness Racing New South Wales and statistical analysis of this data by Professor Brynn Hibbert of the University of New South Wales. On 1 January 2015, a cobalt concentration limit of 200µg/L in equine urine was introduced across Australia by an amendment to the Rules of Racing[9] and LR 68A was repealed.
Racing Analytical Services Ltd ('RASL') is a not for profit organisation established to provide drug testing services to the Victorian racing industry. RVL and RASL are located in the same building at 400 Epsom Road, Flemington. RASL's constitution provides for RVL to appoint a director to RASL's board.
In April 2014, RASL did not have the equipment necessary to analyse for the presence of cobalt in equine urine samples. It did not obtain the equipment until mid-2015. For a period of approximately 15 months, samples were sent out of Victoria when cobalt concentrations were to be measured. The samples relating to this proceeding were sent to ChemCentre, a racing laboratory in Western Australia and the Hong Kong Jockey Club Laboratory ('HKJCL'), the laboratory of the Hong Kong Jockey Club in Sha Tin District, Hong Kong. RASL recommenced testing all racing samples in Victoria in August 2015.
The National Association of Testing Authorities ('NATA') is the authority that provides independent assurance that facilities and laboratories comply with international and Australian standards and are competent to provide reliable testing, calibration, measurement and inspection data to government, industry and the community. NATA is a not for profit company and has memoranda of understanding with the Australian, State and Territory Governments.

[36]

The stewards' power to take samples under AR 8(j) is subject to AR 178D, which provides:
- (1) Samples taken from horses in pursuance of the powers ... conferred on the stewards by AR 8(j) shall be analysed 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 a 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 same sample, together with advice as to the identity 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 portion of the control, the certified findings of both official racing laboratories shall be prima facie evidence that a prohibited substance has been detected in that sample for the purposes of these rules.
- (4) Where an Official Racing Laboratory is unable, for any reason, to analyse a sample to detect and/or certify as to the presence of a prohibited substance in that sample, that Official Racing Laboratory or the stewards may refer the sample, or any portion of the sample, to another Official Racing Laboratory for analysis.
- (5) If the Official Racing Laboratory to which a sample or portion of a sample was referred in accordance with AR 178D(4) detects a prohibited substance in that sample or portion of that sample, that Official Racing Laboratory shall -
  - (a) notify its finding to the stewards, who shall thereupon notify the trainer of the horse of such a finding; and
    - (b) nominate another Official Racing Laboratory and refer to it a reserve portion of the same sample and, except in the case of a blood sample, the control of the same sample, together with advice as to the identity of the prohibited substance detected.
- (6) In the event of the Official Racing Laboratory to which a sample was referred pursuant to AR 178D(5) 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 control, the certified findings of both Official Racing laboratories shall be prima facie evidence that a prohibited substance has been detected in that sample for the purpose of these rules.

[45]

On 20 July 2015, Dr Brennan was interviewed by the NSW Stewards. He told them that he had not been completely honest, and he felt terrible for what he had done.
He explained that he had misled the stewards at the previous interview. He said that he had seen a bottle like that shown to him previously or a bottle extremely similar to that. In early September 2014, Dr Matthews told him he had been using a vitamin and mineral complex that helped horses recover from gallops. Dr Brennan said that Dr Matthews told him that the bottle contained no prohibited substances and had not returned any positive swabs.
Dr Brennan said he asked Dr Matthews whether the bottle contained any cobalt, and was assured that it was an all-natural substance and did not contain any cobalt whatsoever. He said that Dr Matthews explained that the cobalt that people had been using was in a red or blue bottle, and this was an orange bottle. Dr Matthews said it definitely would not swab and there was nothing illegal about it. Dr Matthews told him the product cost $1,000 a bottle.
Dr Brennan said that he was concerned about the bottle, so he called Nick Bova of Bova Compounding to ask him how much it would cost to get the bottle tested. He said that when he told Mr Bova that it was just multivitamins, Mr Bova said as he did not know what was in it, testing would cost between $10,000 and $100,000.
Dr Brennan admitted that he sent Sam Kavanagh two bottles: one bottle on two separate occasions. Dr Matthews sent Sam Kavanagh a bottle in mid to early October 2014.
Dr Brennan stated that Dr Matthews told him that the vitamin complex was Canadian and that he got it from Canada. Dr Brennan made no inquiries of the alleged Canadian source. He said Dr Matthews told him the vitamin complex was $1,000 a bottle, and that twenty 5mL doses could be obtained out of a bottle. Each dose cost $50.
Dr Brennan said that he asked Ms Potter to send bottles of the vitamin complex to Sam Kavanagh on two occasions. When asked about Ms Potter's statement that the bottle she was asked to send Sam Kavanagh was the same bottle as she had seen in the fridge in the back of Dr Brennan's car at O'Brien's stable, Dr Brennan admitted that he had kept a bottle in the fridge in the back of his car.
Dr Brennan admitted that he had disposed of the postage book because it would lead a trail back to him. He said that nobody saw him do it.
He said that neither Dr Ian Church, a senior partner at the clinic, nor Aaron Corby, the clinic's Business Manager, knew of the vitamin complex bottles. The money for the bottles went to Dr Matthews. He said that all Mr Corby knew was that Dr Brennan had given multivitamin drips to some horses; he did not know that Dr Brennan had been using the substance from the vitamin complex bottle.
Dr Brennan said that Sam Kavanagh told him he would tell the NSW Stewards that he had been sent the bottle that was seized from his stable from Dr Brennan. Dr Brennan responded that he thought Sam Kavanagh had gotten rid of the bottle, and '[y]ou do what you are going to do, but I'm going to be defending myself'.[16]
Dr Brennan admitted giving false evidence. He said:

[50]

Dr Brennan said that Kavanagh responded 'Oh, stuff that. Just use it. I'll give you a list of horses you can start using it on.'[19]
Dr Brennan said that Kavanagh paid $3,000 in cash for three bottles of the vitamin complex, and Dr Brennan gave the cash to Dr Matthews. In late October 2014 Kavanagh said 'That drip's shit, it doesn't work. We're not using it anymore.'[20]
Dr Brennan said that a day or so after he approached Kavanagh, he spoke to O'Brien about the vitamin complex. He told O'Brien that the vitamin complex had no cobalt in it, but there were no guarantees, and if he wanted to get it tested, it would cost up to $10,000.
He said that when the trainers were notified of the cobalt positives, O'Brien said to him 'Bullshit, that's the one thing we know is not in that'.[21] When Kavanagh contacted him, Kavanagh was angry and Dr Brennan told him 'a hundred per cent. There's no friggin' cobalt in that.'[22]
Dr Brennan said that he called Dr Matthews about the positives, and Dr Matthews assured him there was no cobalt in the vitamin complex bottles, and that he would contact the supplier in Canada to find out what was in the bottles. He said that Dr Matthews called back later and told him it was only folic acid, B12 and other B vitamins. Dr Brennan said that he did not know who Dr Matthews was getting the vitamin complex from in Canada, but the bottles were purchased online.
Dr Brennan said that O'Brien never saw the bottle, nor did he supply it to him directly; it was administered at O'Brien's stable after O'Brien gave Dr Brennan a list of horses to give it to. Dr Brennan said there was a bank transfer for $3,000 from O'Brien for three bottles. Dr Brennan kept a bottle in his fridge and kept track of every horse on which it was used. Owners were charged $120 for each drip.
He said the stable hands held the horse while the drip was being administered, but they had no idea what was in the drips. Dr Brennan was not sure if Kavanagh had seen the bottle before, although he had been around the back of Dr Brennan's car where it was kept. He said he could not remember showing O'Brien the bottle so he may not have seen it before.
He said his relationship with Kavanagh was not great, but O'Brien had trusted him. He said when he found out that the bottle contained high concentrations of cobalt, he delayed telling O'Brien because he thought O'Brien would fire him. Dr Brennan said he realised he was in trouble when he saw the photo of the bottle of vitamin complex at the stewards' inquiry.

[52]

Dr Brennan gave evidence before the RAD Board over four days. He repeated his evidence about contacting Mr Bova to get the contents of the vitamin complex bottle tested. He said that cobalt was his major concern, and Dr Matthews had assured him there was no cobalt. He acknowledged that a test for cobalt would only have cost him around $200. He agreed that he should have contacted RASL and requested elective screening.
Dr Brennan said that he spoke to Kavanagh at his stable a day or two after he first spoke to Mr Bova about testing the vitamin complex bottle. The bottle was sitting on top of his fridge and would have been visible to Kavanagh. Dr Brennan said that he told Kavanagh that there were 20 doses in the bottle. He had been told by Dr Matthews that there was definitely no cobalt in the bottle, but there were no guarantees. He explained that testing started at $10,000 and could be as much as $100,000. Dr Brennan said Kavanagh told him to 'just use it',[23] and a couple of days later, Kavanagh gave him $3,000 in cash for three bottles. Dr Brennan said he did not enter this transaction in the clinic's books, and he gave the $3,000 to Dr Matthews. The clinic was making money charging $120 for each drip.
Dr Brennan said that in mid-September 2014, he had a conversation with O'Brien about the vitamin complex, also conducted at the back of Dr Brennan's car. He said he could not recall O'Brien seeing the bottle. Dr Brennan said that his conversation with O'Brien was similar to his conversation with Kavanagh; he told O'Brien about the cost, the doses, that Dr Matthews had sourced the bottle from Canada, and the cost of testing it. Dr Brennan said a few days later, O'Brien told him he accepted the use of the drips and provided list of five or so horses.
Dr Brennan said that he picked up three bottles from Dr Matthews at the end of September at Flemington. Dr Brennan kept a bottle in the back of his fridge with the other three bottles in his vitamin drawer in the back of his car. O'Brien paid $3,000 on 19 November 2014 by bank transfer into Dr Brennan's bank account, and Dr Brennan withdrew this and gave it to Dr Matthews. Kavanagh provided $3,000 in advance.
Dr Brennan did not keep separate bottles for O'Brien and Kavanagh, and only recorded the drips as pre-race drips or recovery drips.
Dr Brennan instructed a staff member to send Sam Kavanagh a bottle after Sam Kavanagh paid for it. A second cash payment of $1,000 secured a second bottle.
Dr Brennan explained that Kavanagh ceased to retain the clinic or Dr Brennan at the end of October 2014 following a dispute about a veterinary fee.
According to Dr Brennan, on 14 January 2015 O'Brien received a phone call advising that two of his horses had tested positive to cobalt, and that the stewards were with Kavanagh at the time of the call. Dr Brennan said that he and O'Brien had 'a little bit of a giggle' saying that 'the one thing we know that's not in those vitamins is cobalt'.[24]
Dr Brennan said he contacted Dr Matthews who assured him that there was no cobalt in the bottle. Dr Matthews said he would contact someone in Canada to get more information, and he later told Dr Brennan that his contact said it was just vitamins and there was no cobalt in the bottle. When questioned about whether he asked Dr Matthews about the Canadian supplier, or got in touch with the Canadian supplier himself, Dr Brennan said 'we didn't do as much on that as we should'.[25]
When questioned about this on the following day of the RAD Board hearing, Dr Brennan said that Dr Matthews was evasive when asked questions about the Canadian supplier, and that Dr Matthews was a very good liar. He said the story as to the identity of the Canadian contact changed, and Dr Matthews never provided any details for him despite requests to do so.
Dr Brennan said Dr Matthews was later dismissed on account of a different matter.
Dr Brennan said that when he returned to the clinic on 14 January 2015 he contacted Dr Ben Sykes, an internal medicine specialist, and asked him to look into the cobalt positives. He said Dr Sykes advised him that VAM would cause an over-threshold result. When questioned further about this statement, Dr Brennan responded that there were a lot of discrepancies around that and the science is very new.
Dr Brennan said that he was lulled into a false sense of security that the ingredients in the bottle were vitamins and that the guidelines for vitamins are not as strict as those for scheduled drugs.
Dr Brennan gave two reasons for not telling the stewards about the vitamin complex in January 2015. The first was that he did not know what was in the multivitamin, and the second was that he was assured that there was no cobalt in it, and was acutely aware that cobalt had a three year penalty associated with it.
Dr Brennan repeatedly stated that neither he nor the trainers knew that the vitamin complex contained cobalt or that cobalt was being administered to the horses. He said O'Brien and Kavanagh did not want anybody knowing that they were using this product, and they conveyed that to Dr Brennan.
Dr Brennan said that he always added the vitamin complex to the drips; he did not ask Ms Potter to do this. He said he did this to avoid her knowing and speaking to other veterinarians about it, who may then ask him for it.
Dr Brennan said the most he would ever pay for a 100mL vitamin bottle for racehorses was between $50 and $100. As to the cost of the vitamin complex bottle in this case, he said that Dr Matthews told him he was paying $1,000, but he now knew this to be a lie.
Dr Brennan said he supplied two bottles of the vitamin complex to Sam Kavanagh. The bottles were posted by Ms Potter. He threw the express post book in the bin in March 2015 because he was aware that the book would link the bottles sent to Sam Kavanagh to him and implicate him in the provision of prohibited substances.
He repeated the his evidence that on 14 January 2015, he told Sam Kavanagh to get rid of the bottle,. Sam Kavanagh replied that he stopped using it in December 2014, and had gotten rid of it a long time ago. However on 4 February 2015, Sam Kavanagh called Dr Brennan and told him his stables had been raided, and the NSW Stewards had taken a bottle of vitamins. Sam Kavanagh lied and said it was not the bottle provided to him by Dr Brennan.
Dr Brennan said that in late February 2015, Sam Kavanagh told him that he was on his way to see the NSW Stewards and he would name Dr Brennan as the supplier of the vitamin complex bottle. Dr Brennan attempted to dissuade him stating that he thought that Sam Kavanagh had told him it was not his bottle, 'some bloke had dropped it off'.[26]
Dr Brennan said that he did not tell Dr Amy Kelly about sending Sam Kavanagh the vitamin complex because Sam Kavanagh asked him not to tell her. He also deliberately kept the information from Dr Catherine Brown, who administered drips to the Sam Kavanagh's horses Feels Like Home, Beauty's Beast and Keep De Rose, even after she contacted him about Feels Like Home appearing to have an adverse reaction to the drip.
Dr Brennan said that he was deceived by Dr Matthews, and that this deceit led him to deceive the trainers. He said that he did not intend to deceive the trainers, and that he did not know at the time he was deceiving them.
Dr Brennan said that in late February or early March 2015, Kavanagh attended the clinic. Dr Brennan told him that he had sent two bottles of vitamin complex to Sam Kavanagh, and had since told him to get rid of them. He said Kavanagh was not happy about this.
Dr Brennan admitted that he had failed to tell the NSW Stewards Inquiry some two weeks after he had apparently made a clean breast of things, that he had disposed of a bottle of the vitamin complex in a dumpster. He said the omission was a mistake, and denied that there were other important matters in respect of which he was still not telling the truth.
Dr Brennan agreed that he had attempted to remove any capacity for those bottles to be linked back to him in any way. This included personally disposing of the bottle that was in his possession, instructing Sam Kavanagh to dispose of any bottles he had, and confirming with Dr Matthews that he no longer had any bottles in his possession. Dr Brennan agreed that from 14 January 2015 until 4 February 2015, he believed that there were no bottles anyone could ever find.

[54]

Dr Brennan appealed the decision of the NSW Stewards and the appeal was heard by a panel appointed by Racing NSW on 10 February 2016.[27] In his evidence before the panel, Dr Brennan said he did not give the bottles of vitamin complex to O'Brien and Kavanagh; he retained the bottles himself and administered the drips. He said that he acquired eight bottles in total from September 2014 until January 2015. He said that O'Brien paid for three bottles as did Kavanagh, while Sam Kavanagh purchased two.
Dr Brennan denied that he was the supplier of the vitamin complex. While he spoke to Dr Matthews about the supplier in Canada, he did not ask for the name of the supplier or follow it up as much as he should have. He did not ask Dr Matthews to return from leave early or require him to provide the name and address or contact number of his contact in Canada immediately.
Dr Brennan said that he was never going to stand Dr Matthews down over cobalt because he was as guilty as Dr Matthews was. Dr Matthews was terminated for a reason other than the cobalt issue. Dr Matthews had been on sick leave from 17 March 2015 following a meeting on that day, and was then terminated.
Dr Brennan explained that while the staff made up the drips, he added 5ml of vitamin complex from the back of his car. He accepted that he administered the vitamin complex to O'Brien and Kavanagh's horses and that he sent one bottle to Sam Kavanagh in each of September and October 2014.
Dr Brennan admitted that he had not told Dr Brown about the administration of the vitamin complex in the drip administered to Feels Like Home and Keep De Rose despite the fact that she was a colleague vet reporting an alarming condition in horses that he cared for.
He admitted that he 'didn't get proper [provenance]'[28] on the bottles so he spoke to Nick Bova about getting the vitamin complex tested. He agreed that his concern was about cobalt, however he said he did not ask Mr Bova how much it would cost to conduct a cobalt test because Dr Matthews had assured him that there was no cobalt in the vitamin complex.
Dr Brennan said that he did not tell Dr Church that the vitamin complex bottles contained high quantities of cobalt until June 2015. He agreed that he had kept Dr Church in the dark because he knew it was risky and he did not want to compromise Dr Church. Dr Brennan also agreed that he should have spoken to him when the vitamin complex first came to his notice.
Dr Brennan said that he had not told Mr Corby about the vitamin complex before Mr Corby went to Sydney to speak with Sam Kavanagh about it because he did not want to implicate Mr Corby in this matter. He said Mr Corby would have had a duty to notify the stewards about it.
Dr Brennan agreed that he had retained Dr Sykes to look into the science behind the cobalt findings but did not tell Dr Sykes the truth about his use of the vitamin complex. He admitted that he suspected there was cobalt in the vitamin complex bottle when he sought Dr Sykes' opinion to whether VAM could have caused the cobalt positive. He said he was trying to get his head around the cobalt science and wondering if that could have explained it. He did this after he had eliminated the possibility of anyone testing the vitamin complex as he had disposed of the bottle and instructed Sam Kavanagh to do the same.
Dr Brennan admitted he deliberately lied to the stewards about the bottle on 14 January 2015 when the positive results were returned, despite being aware that there were penalties for lying to the stewards. He said it was not until the RAD Board hearing in December 2015 that he told the hearing that he had thrown away the vitamin complex on 14 January 2015. Dr Brennan said that was a mistake, and he could have advised the stewards of it in July 2015 but did not. He said that after the positive cobalt swabs were returned for O'Brien and Kavanagh he threw out the remains of the vitamin complex that he had.
Dr Brennan admitted that he disposed of the postal record that showed that the clinic had sent vitamin complex bottles to Sam Kavanagh. He admitted that he had falsely said that Ms Potter was wrong in the evidence she gave.
Dr Brennan said that he threw the bottle of vitamin complex that he had into the skip bin near another trainer's stable. Dr Brennan said that the day after he disposed of the bottle, he went back to the bin where he had thrown out his bottle, but the bin had been emptied.
He admitted lying at his interview on 9 June 2015 when he said that he had only seen a photo of the bottle, and not the bottle itself. He had lied about sending bottles to Sam Kavanagh. He said that he had also lied about a thousand dollars in cash, received for drenches, being divided between himself and Dr Church.

[56]

Dr Brennan gave evidence before the Tribunal over a three day period.
When asked about his involvement in the 'supplementation program' that resulted in the proceeding before the Tribunal, Dr Brennan said that in early September 2014, Dr Matthews visited him at home and had a 100mL brown bottle of vitamin complex. He said Dr Matthews told him he had been using it extensively in the harness racing industry for the past two to three months. He said that it was a formulation of concentrated vitamin B12. He told Dr Brennan that he added a 5mL dose to a litre of Darrow's drip with Ferrocyl, VAM and vitamin C. He said Dr Matthews told him he procured the bottle from Canada, and that it was a new supplement used to aid recovery in racehorses. Dr Matthews told him it was 'totally natural and it had no swab time and it contained no prohibited substances'.[29]
Dr Brennan said he asked Dr Matthews about cobalt and Dr Matthews specifically reassured him that it was fine. Cobalt was the only prohibited substance Dr Brennan asked about. Dr Brennan said he was very anti-cobalt.
When asked whether he had any doubts about Dr Matthews because Dr Matthews had previously worked for the clinic and left in questionable circumstances, Dr Brennan said he did not. When asked why he had given precisely the opposite answer in his evidence at the RAD Board, Dr Brennan answered that he was under a lot of pressure at that time, and that it was not black and white. When pressed about his earlier answers, Dr Brennan said that he had more of a niggling doubt about the bottle.
In response to a question from the Tribunal as to whether Dr Matthews had any contacts in Canada, Dr Brennan said that Dr Matthews said he was he was friends with international trainers in Canada and that he had been introduced to a chemist in Canada. Dr Brennan added thinking about it now he does not believe a word Dr Matthews said about Canada, and that he now thinks he was getting the vitamin complex off someone else. In further evidence, Dr Brennan said he had doubts about the Canada story. He agreed that Dr Matthews was not a partner, and Dr Brennan could have sacked him if he wanted to do so, but he did not do that.
When questioned about why he did not query the price for the vitamin complex on the grounds that vitamins could be purchased for around $50, Dr Brennan said he just did not have that conversation, and that Dr Matthews had said there were 20 doses in the bottle and it was supposed to be concentrated. Dr Brennan denied that he did not ask further questions because he knew there was more than vitamins in the vitamin complex.
Dr Brennan said that Dr Matthews gave him a bottle of vitamin complex. On 11 September 2014 he called Mr Bova, who Dr Brennan had used for a number of years, and told Mr Bova that Dr Matthews had given him a bottle of multivitamins that was supposed to contain concentrated vitamin B12, but there was no product list on the side of the bottle and he didn't have proper provenance on it. Dr Brennan said that he asked about testing the contents of the bottle, and Mr Bova told him that testing starts at $10,000 and can go up to $100,000. He did not ask Mr Bova about the cost of a test for cobalt alone.
Dr Brennan agreed that Kavanagh was already giving multivitamins and the like to horses after hard work. This was a normal practice in stables. The clinic often administered electrolyte drenches and drips as needed. Dr Brennan explained that drips were a different method of helping a horse's recovery after work.
Dr Brennan said he had a conversation with Kavanagh about the bottle at his car at Kavanagh's stable. He said the vitamin complex bottle was on top of his fridge at the back of his car. Dr Brennan said that he told Kavanagh that Dr Matthews had procured the bottle from Canada, that it was an all-natural form of B vitamins and concentrated B vitamins specifically used for the recovery of horses after hard gallops.
According to Dr Brennan, he told Kavanagh the price, dosage and when to use the vitamin complex. He also reiterated the information about the cost of testing the product, and that he could not give any guarantees about the product. Dr Brennan said that Kavanagh said to use it, and when asked for exact words, Dr Brennan said Kavanagh said 'let's use it'. Dr Brennan said that a few days later while he was at Kavanagh's stable, Kavanagh brought him $3,000 cash and told him it meant he was in front. He said that Kavanagh gave him verbal instructions about which horses to provide the drip to, and he updated this from time to time.
Dr Brennan said that prior to the latter part of 2014, O'Brien did not use drips on his horses on a systematic basis, only when drips were needed. O'Brien had introduced trials of certain medications into his stable before, including different ulcer treatments and medications to help with horses' joints. It was not unusual for him to try new systems to try to improve best practice in the stable. O'Brien's stable was a sophisticated, professionally run organisation.
When asked about O'Brien, Dr Brennan said that the day after speaking with Kavanagh about the vitamin complex, he spoke to O'Brien during the morning rounds at O'Brien's stable and told him that he had a new bottle of B vitamins that would help aid recovery of horses after fast work. He did not show O'Brien the bottle. He repeated the information given to Kavanagh regarding Dr Matthews sourcing the bottle from Canada, when to use the product, the cost of testing it and that he did not have 100% provenance on the bottle. He told O'Brien that Dr Matthews had used it in harness racing and had winners.
Dr Brennan said that O'Brien had a think about it for a couple of days and then returned with a list of four or five horses he wanted to use the vitamin complex. He said that O'Brien gave verbal updates of the horses that should receive the drip around every 10 days.
Dr Brennan said that he started using the drips in O'Brien's stable on about 25 September 2014, and stopped them at the end of December 2014 because the horses were then going out of work, he was going on holidays, and the Magic Millions Sales were coming up.
Drips at Kavanagh's stable started on about 26 September 2014 and stopped around 24 October 2014. Kavanagh told Dr Brennan that the drips weren't working and to stop using them.
Regarding the delivery of the vitamin complex, Dr Brennan said that he added it to the drips which were usually prepared by Ms Potter. He did this at the back of his car and then administered the drip into the jugular vein of the horse. Dr Brown administered some drips at Barwon Heads for O'Brien and Sam Kavanagh administered drips to his horses himself.
Dr Brennan also agreed that he made a conscious decision not to tell Dr Brown (who had administered drips to which Dr Brennan had added the vitamin complex) about the vitamin complex. He told her to administer the drips, but did not tell her that the vitamin complex was in the drips because he did not want his vets to know about the bottle until he had the full details of its provenance. When asked what he did to determine the provenance of the bottle, Dr Brennan responded that his call to Mr Bova was the only step he took.
Dr Brennan admitted that he lied to Dr Church. He told Dr Church the truth on or after 20 July 2015.
According to Dr Brennan, the trainers bought the bottles, and he just acted as a conduit for the trainers to get the bottles. Dr Brennan said that the bottles of vitamin complex were not put through the books. This was a conscious decision by him because the trainers had purchased them from Dr Matthews. He was only acting as a conduit.
When asked about when he found out about the cobalt positives, Dr Brennan said that O'Brien called him and told him that Peter Moody[30] called O'Brien to tell him Kavanagh had a cobalt positive, and word was that O'Brien had multiple cobalt positives. Dr Brennan said he told O'Brien that cobalt was the one thing they knew was not in the bottle. Dr Brennan then called Sam Kavanagh and told him that his father had a positive.
Dr Brennan said that he received a call from Kavanagh after he was notified of the cobalt positives. Kavanagh was angry and told him that the stewards were at his stable and wanted to interview Dr Brennan straight away. Dr Brennan called Dr Matthews who assured him that there was no cobalt in the bottle.
Dr Brennan agreed that he was not truthful to the Victorian or New South Wales stewards. He said he lied to protect himself and the trainers. He said he felt extremely guilty; he was the primary care veterinarian and the trainers had a trust in him, built up over a number of years. He said he was hoodwinked by an associate who he had trusted
Dr Brennan admitted that he had not told RVL about the vitamin complex and that he maintained the lie until 20 July 2015. He said that he consulted a colleague about VAM and its effect on cobalt readings on 14 January 2015, but he did not tell this colleague about the vitamin complex. He said he received a call from a friend in Hong Kong who told him that vitamins would have been the reason why the result was over-threshold. He said 'so armed with all that, we got onto the VAM bandwagon and we just rolled with it'.[31] He said that later, things started to compound.
Dr Brennan agreed with Ms Potter's evidence that she did not see the vitamin complex at, or ordered through, the clinic. He said he was hiding the vitamin complex bottle from the clinic 'to a degree'. The bottles always stayed in his car and he did not put them on the shelf at the clinic, however he did not completely hide it from his staff because he gave a bottle to Ms Potter to send to Sam Kavanagh on two separate occasions.
Dr Brennan agreed that he reached the point where he realised that employees of the clinic were being unfairly dragged into this matter, and being called dishonest because he was concealing his involvement in the matter. He agreed that he could not solve this problem for Ms Potter without inflicting some collateral damage on O'Brien, Kavanagh and himself.
Dr Brennan said that he still had a bottle of vitamin complex in his car when he became aware of the cobalt positives. He admitted he threw the bottle out in what he described as 'a moment of panic' at the Flemington Racecourse. He did not volunteer the fact that he had done this in his interview with RVL on 20 July when he was asked about whether he had since had the bottle tested. He said he did not take the bottle of vitamin complex that he had straight into the stewards to be tested as he knew that there was a three year disqualification attached to cobalt.
Dr Brennan was presented with a bottle of vitamin complex at the hearing before the Tribunal. When asked about why the label of the bottle said 'to be administered orally' but the bottle cap was accessible by syringe, he said that he could not remember the bottles that he was using saying 'to be administered orally', but they may have. Dr Brennan agreed that the following characteristics of the bottle would have caused him to be suspicious about it:
- the bottle was not from a commercial organisation;
- the label did not identify the producer of the product;
- the label did not identify or describe the vitamins;
- the label did not state whether only vitamins were in the bottle; and
- there was no list of ingredients on the side of the bottle.
Dr Brennan said that if Ms Potter had seen the bottle, she probably would have asked some questions. He stated that while he thought she would have had full trust in him, he did not know the provenance of the bottle, and did not want her talking to other veterinarians about it until it had been properly tested. As this was not done, he kept the bottle from her.

[58]

Dr Vallance was first interviewed by the Victorian stewards in May 2015. He told the stewards that during the 2014 Spring Racing Carnival, Dr Brown asked him if he knew what was in some drips, because Dr Brennan had advised her that there could be a reaction by a horse administered a drip at the O'Brien stable but he did not tell her what was in the drips.
Dr Vallance was interviewed by the New South Wales stewards twice in June 2015. He said that in Spring 2014 he had seen the vitamin complex bottle in the back of Dr Brennan's car in his car fridge. He did not know what the product was.
In evidence before the Tribunal in August 2016, Dr Vallance said that on the day he saw the vitamin complex bottle in Dr Brennan's car, the car was parked at the front of the clinic. He went to Dr Brennan's car fridge to get another product and the vitamin complex bottle caught his eye because it was not stocked on the shelves and he had not seen it at the clinic. He had been alerted by Dr Brown that there was potentially something in drips that was causing adverse reactions. He noticed that the bottle was not a normal drug bottle; it had no manufacturer's address, and looked very different from a standard, legitimate veterinarian supplementation product. He did not know what was in it.
Dr Vallance explained that after 20 July, Dr Brennan sat him and Dr Wood down and told them that Dr Matthews came to him with the vitamin complex bottle which was said to be obtained from Canada, and that the vitamin complex was put into drips. He said no one could tell him what was in it, but it turned out it had cobalt in it. Dr Vallance said he ended his employment with the clinic within a week of this conversation on the basis of Dr Brennan's misconduct and change of evidence. He did not want to be associated with the clinic anymore. Dr Vallance said that he was disappointed because he had seen the vitamin complex bottle in the Spring, and had been lied to by Dr Brennan for six months.
Dr Vallance referred to a clinic practice meeting in January 2015 following the cobalt positives of O'Brien and Kavanagh. All of the vets, Mr Corby, and the office staff were required to attend. Dr Brennan explained 'the situation' and proposed new swab times for vitamins and other substances, and other directions for the administration of vitamins.
Dr Vallance said that over the entire time that he had known them, O'Brien and Kavanagh had been horse trainers of the utmost integrity. They ran professional stables. Both employed vets to give all injections and drenches.

[59]

In her evidence before the Tribunal in August 2016, Dr Brown described the way drips were administered by her to O'Brien's horses when she was at Barwon Heads. The work was dictated by Dr Brennan in an email outlining a pre-race plan. In his email to her on 29 October 2014, Dr Brennan named Beauty's Best, Feels Like Home, Keep De Rose and Caravan Rolls On. On receipt of the pre-race plan, Dr Brown spoke to Dr Brennan by phone. He said that a few of the horses he had treated with the drip at the O'Brien stable at Flemington had sweated up while the drip was being given and that she was not to worry about that if her horses did the same. He told her to come to Flemington to pick up drugs from Ms Potter who would make up the drips. This was the only time Dr Brown collected pre-made drips as normally she would pick up drugs and bags of fluids and make up the drips herself.
Dr Brown described two occasions when horses reacted to the use of drips as directed by Dr Brennan at the O'Brien stable during the Spring Racing Carnival in 2014.
The first occasion was with Feels Like Home on 30 October 2014_._ Dr Brown said that as she was running the drip the horse started to sweat up and show small peripheral vacuo dilation. As a result, Dr Brown completed the drip at a slower rate. The horse did not get any worse so she continued the drip at the lower rate and the horse recovered quickly. In a text message to Dr Brennan, she described Feels Like Home as having 'sweated up like crazy. All veins popping out of her skin.'[32] Dr Brennan's response to Dr Brown's message was 'Sweet, thanks'.[33] He did not comment further or call her.
The second occasion was with Keep De Rose on 1 November 2014. She described this horse's reaction as appearing to have a mild case of synchronous diaphragmatic flutter, or 'the thumps' because it looked like her muscles were twitching on her flank. When Dr Brown reported Keep De Rose's reaction to Dr Brennan, he did not reply but they discussed the reaction later and Dr Brennan told her not to worry about it.
After the reactions of these two horses, Dr Brown disposed of the remaining drips because she was concerned about them. She discussed the drips with Dr Brennan on multiple occasions. She also spoke to Ms Potter and asked her what was in the drips. Ms Potter said that she had seen Dr Brennan put something else from a bottle into one of the drips given at the O'Brien stable at Flemington. Dr Brown discussed the drips with Dr Vallance, who said Dr Brennan had not asked him to give any of the drips and he did not know what was in them.

[60]

Dr Kelly was interviewed by the NSW Stewards and by the Victorian stewards. In her interview with the NSW Stewards in March 2015, she gave evidence of a conversation with Sam Kavanagh after the NSW Stewards found a bottle in his house. He told her that he got the bottle from Dr Brennan. He told her it did not have a Flemington Equine label on it. At this stage Dr Kelly said she started to become concerned about what was going on. She said the fact that the bottle came from Dr Brennan was fairly alarming to her. Sam Kavanagh said that the bottle was posted to him and that Dr Brennan had assured him that it was not cobalt. Sam Kavanagh told her in a number of conversations that Dr Brennan had said the vitamin complex would be fine.
Dr Kelly said that on 24 February 2015, Dr Church rang her to advise that Sam Kavanagh had a positive to cobalt. He told her that Dr Brennan and Mr Corby did not want to call her because they thought their phones were bugged. He told her it was all going to be fine. Dr Kelly asked about the bottle that Dr Brennan had given to Sam Kavanagh. She said in evidence that she thought Dr Church was not aware that she knew about the bottle. Dr Church told her that the bottle was fine, it was just a vitamin thing. When Dr Kelly responded that if it were a vitamin thing, she would have been selling it, Dr Church responded that he had only just found out about this too, and it was best that she forget she knew about the bottle.
Dr Kelly also gave evidence of a conversation with Sam Kavanagh on 25 February 2015 in which he told her that Dr Brennan told Kavanagh that he had a new drip which was great and definitely fine. When he gave the drip to Magicool the horse had a reaction and Kavanagh then told him he did not want any more of it.
Dr Kelly said Dr Church called her again on 26 February 2015. He told her that Sam Kavanagh would have to do time. Dr Kelly questioned what would happen to Dr Brennan, and Dr Church told her that Dr Brennan did not know it was cobalt. She told him that he needed to tell Dr Brennan to own up to what was happening, because he was going to bring everyone else down. Dr Church said they could not do that, insurance would not cover it and the practice would go under. He said he did not know Dr Brennan was selling the vitamin complex. When asked why Dr Brennan would do it, Dr Church replied that he was under a lot of pressure from Kavanagh to get winners.
Dr Kelly said that Mr Corby called her later that evening, and when she did not answer, sent a text message instructing that no one was to go to Sam Kavanagh's stable from the practice. She spoke to Mr Corby the following morning. He told her that Sam Kavanagh was a liar and a desperate man, and he had told the stewards he got some stuff from Dr Brennan.
Dr Kelly said that Kelly Fawcett, Sam Kavanagh's fiancée, told her that Mr Corby had flown up to Sydney under the pretence of providing literature proving that cobalt can be pushed above the threshold by the accumulation of vitamin injections. However, the real purpose was to silence Ms Fawcett and Sam Kavanagh so that they did not tell the stewards where they got the bottle from. Ms Fawcett told Dr Kelly that they had already spent two hours with Mr Corby when he was in Sydney when Dr Kelly saw Mr Corby, but they all pretended they had not seen each other.
Dr Kelly told the NSW Stewards that Sam Kavanagh told her that Dr Brennan got the bottle from Dr Matthews. Sam Kavanagh said that when he was in Queensland with Dr Matthews, Dr Matthews told him that he had started giving horses 10ml of the vitamin complex and it improved the horses 'out of sight'.[34]
Dr Kelly was interviewed by the Victorian stewards in May 2015. In this interview, she recalled a conversation with Sam Kavanagh on 25 February 2015, immediately after he was interviewed by the NSW Stewards. She said that he was very stressed and told her that the bottle had been tested, and was pure cobalt. He described himself as a small piece in the puzzle, with the whole inquiry being geared at Flemington Equine. He told her he had been told to keep quiet by Dr Brennan, Mr Corby, O'Brien and Kavanagh - all of whom told him to stick to the story that someone had dropped off a bottle, and that he had been told to use it as an appetite stimulant and he had been giving it to his horses in low doses over the tongue. Sam Kavanagh told her he felt like he had no option.

[62]

Ms Potter was interviewed by the Victorian stewards in January 2014, and in March and May 2015She advised that she ordered and maintained the supply of drugs at the clinic. She prepared drips administered to horses trained by O'Brien and Kavanagh as directed by Dr Brennan. She was employed full time during the 2014 Spring Racing Carnival. She.
During her interview in March 2015, Ms Potter said that on a handful of occasions she had seen Dr Brennan put a substance or medication into a drip after she had made it up. The bottle Dr Brennan used was an orange 100mL bottle marked 'Vitamin and Mineral'. She did not think anything of this at the time.
In her interview in May 2015, Ms Potter confirmed that she had sent one or two lots of the vitamin complex bottle to Sam Kavanagh as instructed by Dr Brennan. The product was not ordered by the clinic; it came directly from Dr Brennan and she did not know from where he got the bottles. Ms Potter said she had sent possibly three bottles to Sam Kavanagh wrapped in bubble wrap by express post. The postal tracking book recording the outgoing mail had gone missing a couple of weeks later. She described the postal book as an A4 notebook which recorded the date, address and content of mail and any stickers.
In evidence to the Tribunal, Ms Potter stated that it was Dr Brennan who came up with the quantities of the constituents of the drips. She agreed that Drs Wood and Brown collected a drip from her on 30 October 2014. She also confirmed that there was a dark brown/orange 100mL bottle in Dr Brennan's fridge in the rear of his car. She had seen Dr Brennan draw the substance out of this bottle. She had never seen the bottle before or been asked to order it. When she saw the bottle at O'Brien's stable, she was doing the rounds with Dr Brennan and she saw him draw up 5mL in a 10mL syringe.
Ms Potter confirmed that she had been asked by Dr Brennan to post bottles similar to that in Dr Brennan's fridge to Sam Kavanagh, and he told her the bottle was expensive, and not to let it break. She said that she recorded the despatch of the bottle in the postage book that had gone missing.
As an equine nutritional adviser, she met with O'Brien to discuss a dietary plan for a horse, and what he would like to do. Ms Potter confirmed that O'Brien and his stable were completely professional. He did not ask her to source any illegal products or the like.

[63]

Dr Church gave evidence before the Tribunal in August 2016. When asked about the vitamin complex bottle, he said that the bottle was a product of a type that would not have been used by the clinic. It was unusual and suspicious; there was no manufacturer; the label said that the product was to be administered orally and yet it was a 100mL bottle with a top on it that would probably be used for injections not oral administration. The constituent parts were not set out on the bottle.
Dr Church said that in February 2015, Sam Kavanagh was proposing to reveal to the NSW Stewards that the bottle had come from Dr Brennan. This concerned Dr Church greatly. On 24 February 2015, he spoke to Dr Kelly to see what she was going to say in relation to the vitamin complex bottle, and to placate her as she was fairly angry. Dr Church agreed that he probably told Dr Kelly that it was best if she forgot about the bottle.
Dr Church said that he regretted that he had said to Dr Kelly that she should forget that she had ever seen the bottle, and that he had acquiesced when Dr Brennan misled the stewards. He had no memory of speaking to Dr Matthews at all about the vitamin complex. He agreed that if Dr Brennan had told him the story about Dr Matthews before Dr Matthews employment ended in March 2015, he would have raised that matter with Dr Matthews.
Dr Church said that initially Dr Brennan told him that the bottle contained a special vitamin injection and he had sourced it from Dr Matthews who vouched for it as a useful product for horses. He said Dr Brennan said a lot of Dr Matthews' harness racing clients had used the product over the previous 12 months and none had any issues with positive swabs.
Dr Church said that from March to June, and the first part of July 2015, he knew that Dr Brennan was not telling the full truth to the stewards. Dr Brennan told Dr Church that while Dr Matthews was at Kavanagh's stable on a Sunday, Kavanagh asked Dr Matthews if he had any new products, and Dr Matthews said there was 'this vitamin stuff' that a lot of the harness racing trainers had been using and they had been very happy with it. When Dr Brennan went to Kavanagh's stable on Monday, Kavanagh asked him to source some of it. Dr Brennan then asked Dr Matthews, who sourced some of the vitamin complex. Dr Church said he did not know any further details about it.
Dr Church said that Dr Brennan told him that he told O'Brien and Kavanagh that he did not know what was in the vitamin complex. He told Dr Church that he called Mr Bova who told him it would it would cost between $10,000 and $100,000 to get the contents of the bottle completely analysed. Dr Brennan told Dr Church that O'Brien and Kavanagh decided that this was too expensive, and that they would just use the product.
Dr Brennan told Dr Church that following the discussion with Mr Bova, he went back to Kavanagh and said that it was going to cost $10,000-$100,000. There were at least two conversations with Kavanagh before Kavanagh agreed to use the substance. Dr Brennan did not tell Dr Church how he introduced the bottle to O'Brien, or that O'Brien had paid him any money.
Dr Church agreed that the stables of O'Brien and Kavanagh were big in the context of Dr Brennan's practice. They were the two biggest stables by number of horses. Dr Church was overseas from the start of May 2015 and resumed work on 1 August 2015. He was away when Dr Brennan attended the stewards on 20 July 2015.
Dr Church agreed that when he left, he had an understanding with Dr Brennan that the 'line' to be taken about this matter was that the clinic had nothing to do with the bottle. Dr Brennan did not give notice to Dr Church that he was going to the stewards on 20 July 2015.
Dr Matthews' employment with the clinic ended on 1 April 2015, however he had stopped working at the clinic a number of weeks before that. Dr Church did not raise the issue of the bottle with Dr Matthews.
In cross-examination, Dr Church agreed that if a veterinarian said to O'Brien or Kavanagh that they should try a product costing $1,000 a bottle, but the bottle's contents were unknown and there were no promises, you would expect to be thrown out of his stable.
Dr Church confirmed that Dr Brennan told him that he did not start this; it was Dr Matthews who approached Kavanagh and Kavanagh then approached Dr Brennan; Dr Brennan was the innocent agent of Kavanagh as a result of what Dr Matthews had told him. As a result of this Dr Brennan went to see Dr Matthews. Dr Brennan had a discussion with Kavanagh about getting it tested.
Dr Church said that Dr Brennan had betrayed the trust that he had in him. Dr Brennan had consistently said that he believed the bottle was vitamins, in fact concentrated B12.

[64]

Mr Corby was interviewed by stewards on four occasions. In his interview on 25 May 2015, he was asked about his trip to Sydney on 17 February 2015. He explained that Sam Kavanagh and Ms Fawcett picked him up from the airport, and they went and had brunch at which they discussed Sam Kavanagh's concerns over caffeine and also the scientific evidence about cobalt. Mr Corby met with Dr Kelly later that day but did not disclose his earlier meeting with Sam Kavanagh and Ms Fawcett.
At the hearing before the Tribunal, Mr Corby said that he spoke to Sam Kavanagh when Sam Kavanagh was at his solicitor's office on 25 February 2015. Sam Kavanagh was distraught and made accusations that the vitamin complex bottle had come from Dr Brennan. Mr Corby told Sam Kavanagh that was not what he had heard, and then it was backwards and forwards along those lines. At the end of the phone call, Mr Corby said to Sam Kavanagh 'You've got to do what you've got to do, tell the truth'.[35]
In another interview with the stewards later in May, Mr Corby was asked why Sam Kavanagh would tell the stewards that he got the vitamin bottle from the clinic and he responded 'Try and get himself off the hook, He figures that he'll get a lesser sentence or somehow improve his position by pointing the finger at somebody else'.[36] Mr Corby said that he had never had a discussion with Dr Brennan about the vitamin complex bottle or its contents. Mr Corby was asked about the postage book recording items sent from July 2012 to March 2015 and he responded that it would have been thrown out once it was completed.
At an interview with the NSW Stewards in June 2015, Dr Brennan and Mr Corby were represented by the same barrister. Dr Brennan denied sending the bottle to the Sam Kavanagh stable. In his evidence before the Tribunal on 5 August 2016, Mr Corby said that he did not know at that time that Dr Brennan's answer was false and he was lying to the stewards. Mr Corby told the Tribunal that he became aware that Dr Brennan had arranged for the bottles to be sent to Sam Kavanagh on or about 20 July 2015.
Mr Corby said that he was previously employed by O'Brien as Racing Manager for four years finishing up eight years ago. He liked and respected O'Brien. He had known Kavanagh for 10-12 years, and always had a good relationship with him socially.

[65]

Dr Matthews was interviewed by the stewards in January and April 2015. In his interview on 20 January 2015, he said that he had never used cobalt chloride prior to the introduction of the new rule regarding cobalt on 14 April 2014. To his knowledge there had not been any purchase of cobalt chloride through or outside the clinic, and he had never been approached to use cobalt chloride.
In his interview with the stewards on 30 April 2015, Dr Matthews said that as far as he was concerned there was no use of cobalt in the clinic. He said that he had not seen the vitamin complex product before. He had never seen anyone at the clinic use the product.
Dr Matthews was interviewed by the NSW Stewards by teleconference on 21 July 2015 while he was overseas. He said he had no personal relationship with Sam Kavanagh. He was not aware of the vitamin complex bottle and had not seen the bottle before it was shown to him by the Victorian stewards. He said that he did not provide it to Dr Brennan or speak about it with Sam Kavanagh at the Magic Millions Sales.
When Dr Brennan's account of Dr Matthews' role in obtaining bottles of vitamin complex was put to Dr Matthews, he described it as totally false. When asked why Dr Brennan would make false allegations about him, he responded that he was no longer at the clinic and had a disagreement with Dr Brennan and another partner. Dr Matthews is proceeding with legal action against them.
Dr Matthews said that 21 July 2015 was the first time he had heard this account by Dr Brennan. He said that none of his trainers has had any positive test results. He said that he had never used the vitamin complex, or supplied it to Dr Brennan or Sam Kavanagh, nor had he sourced products from Canada. He said that Dr Brennan was lying when he said this. He was aware that Dr Brennan was using pre-race drips during the 2014 Spring Carnival. He saw pre-made drips in the back of Dr Brennan's car which were 'reddy, kind of orangey in colour'.[37] Dr Matthews gave evidence that Dr Brennan said that he was using a new drip at the start of Spring. He said Dr Brennan was secretive about it and no one knew what was in it.
Dr Matthews said that his phone records would show that he had never spoken to any manufacturer in Canada.
Dr Matthews said that he had never had a conversation with Sam Kavanagh about vitamin complex, later adding 'Who knows what Tom has told him'.[38]
On 11 February 2016, Dr Matthews gave evidence before the Appeal Panel of Racing NSW.[39] He said that the first time he became aware of vitamin complex was his second interview with the Victorian stewards. He said that Dr Brennan's evidence that he had sourced the material from Canada was completely false. He had given his phone and iPad to the stewards straight after the inquiry. He had never had any contact with Canada whether by email, fax or other means.
Dr Matthews described Dr Brennan as a mentor to him. He said he always went to Dr Brennan if he had major issues, and he trusted him.
In his evidence before the Tribunal on 21 September 2016, Dr Matthews said that he was a paid employee of the clinic in early September 2014. He was not a director or shareholder of the clinic. He worked under the direction of Dr Brennan and Dr Church. A junior partnership agreement had been prepared but not signed.
Dr Matthews said that he went to look at Dr Brennan's house after Dr Brennan bought the house. He did not recall any occasion when he went to the back of Dr Brennan's house, and he did not take any veterinary products with him on any occasion that he might have gone to Dr Brennan's house. He said that he did not and would not supply a bottle containing or possibly containing cobalt to Dr Brennan.
When Dr Brennan's evidence regarding a conversation with Dr Matthews in about September 2014 was put to Dr Matthews, he denied having a discussion with Dr Brennan about a product that he had been using with success in the harness racing industry. He explained that he used a drip based on what a horse's bloods said, he did not use Ferrocyl or VAM and used vitamin C occasionally.
Dr Matthews said that he did not get a product from Canada. His only contact with Canada was his sister-in-law, who he thought came from Canada. He first heard that Dr Brennan was claiming Dr Matthews got the vitamin complex from Canada when he read it in the newspaper. He said that Dr Brennan was using him as a scapegoat.
Dr Matthews said he saw drips being made up for Dr Brennan for the Spring Racing Carnival in 2014 with vitamins that the clinic did not commonly use or stock such as Ferrocyl and VAM.
Dr Matthews said that Dr Brennan called him on the day that O'Brien and Kavanagh first received cobalt positives. Dr Matthews was on holidays as the Magic Millions had just finished. Dr Brennan first asked about the Magic Millions catalogue and later in the day, asked about VAM and the contents of the drips. Dr Brennan was worried that VAM had caused the positives. Dr Matthews said that he knew that Dr Brennan was providing drips for trainers, but didn't know the specific trainers.
Dr Matthews was asked about his attendance at Kavanagh's stable on 25 October 2014. He explained that he was on duty, and Magicool suffered a low grade spasmodic colic. No drugs were used that would limit the horse from racing the following week in the Victoria Derby, and Magicool subsequently raced in the Derby. Dr Matthews said that he was there for a few hours to ensure the horse was 100% fine. He said the horse was not sweating profusely. Dr Matthews was in frequent contact with Dr Brennan while at Kavanagh's stable, and was taking instructions from Dr Brennan on the treatment for Magicool.

[82]

Sam Kavanagh gave evidence to the Tribunal on 8-10 August 2016. He was asked about how he was first introduced to the vitamin complex, and responded that Dr Brennan called him at the end of September 2014 and told him he had found a vitamin drip that the other trainers were using. He told Sam Kavanagh that it was good for the horses, their appetite and their well-being, and was used regularly at other stables with success. Sam Kavanagh said he told Dr Brennan that if Dr Brennan thought it was good, he would give it a try. He asked if it had a withholding period or there was anything prohibited in it and Dr Brennan said there was not, it was just vitamins and was totally safe and a genuine product.
Sam Kavanagh described his relationship with Dr Brennan as like an older brother; he used to talk to him three or four times a day and they would talk about everything.
Regarding the cost of the vitamin complex, Sam Kavanagh said that the price of $1,000 for a bottle covered twenty drips meant $50 a drip. He was asked about the cost of drips and advised that he purchased some drips from the feed store rather than the vet, and the cost depended on the drip. A Darrow's drip would cost around $15 and amino drips were over $50 per drip.
Sam Kavanagh said on both occasions that he purchased the vitamin complex, it was recorded in the stable books of account; there was no attempt to hide it. He trusted Tom and thought it was a complex vitamin constitution in the bottle.
Sam Kavanagh confirmed that the person who supplied him with the vitamin complex bottle was Dr Brennan, not Dr Matthews. He said that he asked Dr Matthews whether the product was okay because he knew he was using it too.
Sam Kavanagh said that after news of O'Brien's and Kavanagh's cobalt positives, Dr Brennan told him not to use the vitamin complex bottle and that they needed to check to make sure it was not lifting cobalt levels. Sam Kavanagh told Dr Brennan that he had stopped using it anyway.
Sam Kavanagh said that on 4 February 2015, after he was notified that his horse Midsummer Sun had a caffeine positive, the NSW Stewards found a bottle of vitamin complex in a kitchen cupboard in a unit above his stable. He had another bottle of unopened vitamin complex in the feed room which he later provided to the NSW Stewards. He was subsequently notified of a cobalt positive for Midsummer Sun on 16 February 2015. On 25 February 2015, the NSW Stewards advised him that the vitamin complex bottle they had found in his kitchen cupboard had a very high concentration of cobalt.
Sam Kavanagh said he stopped using the vitamin complex because of the reaction of Midsummer Sun. He said that he sought and was provided with reassurance from Dr Brennan that there was no prohibited substance on a couple of occasions. He sought this reassurance because he was always very careful, and Ms Fawcett was not happy with the labelling on it.
Sam Kavanagh recounted Mr Corby's visit to him in Sydney on 17 February 2015. He said Mr Corby told him to forget about the bottle, it was irrelevant, and he should not tell the NSW Stewards that he got the bottle from the clinic or from Dr Brennan. He showed him papers which argued that the cause of the cobalt positives was the VAM that was in the vitamin drips and that the vitamin complex was irrelevant. It was later that Dr Brennan suggested say that a travelling vet dropped the vitamin complex off.
Mr Corby told Sam Kavanagh to throw his first phone in the Parramatta River, and get rid of his computer and iCloud. He reiterated that after Mr Corby saw himself and Ms Fawcett, he had a meeting with Dr Kelly, but when they all met later that day, Sam Kavanagh and Ms Fawcett pretended that they had not met that morning.
Sam Kavanagh said that he had three phone conversations with Dr Brennan before he went to the stewards on 25 February 2015. In the first conversation, he told Dr Brennan that the bottle had tested positive to cobalt. He said he was angry when he got these results.
Sam Kavanagh explained that there was a second conversation at Mr Hartnell's office in which Dr Brennan, Mr Corby and Mr Hartnell were also involved. Then there was a third conversation from which Mr Hartnell was excluded in which Dr Brennan and Mr Corby told him that if he put them in, he was sentencing everybody. They would deny it every step of the way and sue him for his debts and bankrupt him.
Sam Kavanagh said that when the vitamin complex was found in his kitchen cupboard by the NSW Stewards, Dr Brennan said it would not matter because it was only vitamins and VAM had caused the problems. He said they fell out on 16 February 2015 when the test results were released showing the bottle had cobalt in it.
Sam Kavanagh said that after he named Dr Brennan as the source of the vitamin complex on 25 February 2015, Dr Brennan and Mr Corby put him under significant pressure. He said they had pleaded their innocence to O'Brien and Kavanagh and said that it wasn't their product that had caused their problems. He said that Dr Brennan and Mr Corby poisoned his credibility and blamed him to get themselves out of trouble.
When Dr Brennan's evidence regarding his conversations with Sam Kavanagh about disposing of the bottles was put to Sam Kavanagh, he said that he told Dr Brennan that he had stopped using the vitamin complex, not that he had gotten rid of the bottles. He said that originally he wanted to get the bottle tested and he asked a client who is a pharmacologist about it, but he could not afford to get it tested. He said the NSW Stewards found one bottle. He handed the other bottle, which was full, to the NSW Stewards at the start of February.
Sam Kavanagh said that at this time, he still did not know whether it was the vitamin complex that caused the cobalt reading as Dr Brennan told him that they did not believe it was the vitamin complex. They believed it was the VAM in the drips. He thought Dr Brennan's instruction to throw the bottle out was about Dr Brennan trying to cover himself. Dr Brennan presented him with a lot of documentation on how VAM and other products can lift cobalt levels.
When questioned about the Lord Dudley meeting, Sam Kavanagh said that Dr Brennan had convinced Kavanagh that the bottle he had given the stewards was nothing to do with Dr Brennan. After the meeting, Sam Kavanagh sent a text message to Dr Brennan that said 'Getting Matt Rudolph to risk his job when you told him lies. Smart play, mate. If my daughter grows up without a father, I hope you can't sleep'.[44] He said he was enraged because his father did not believe him.
Later in his evidence, Sam Kavanagh said when his father arrived for the meeting, Sam Kavanagh told him the truth about the where the bottle had come from. However his father asked him to explain the caffeine positive and he could not.

[89]

O'Brien was shown the vitamin complex bottle in his interview with the stewards on 13 May 2015. He said that he had seen many bottles in the back of vets' trucks but not anything of this type. When informed that it had been confiscated from a stable and was high in cobalt, O'Brien said that he had been made aware of the whole Sam Kavanagh situation by Dr Brennan, and to some lesser extent by Kavanagh, however it was of no relevance to him.
When questioned as to what he knew, O'Brien said that Dr Brennan had told him that Sam Kavanagh was in possession of unregistered, unlicensed products that he was conveniently trying to say came from the clinic. When asked whether he believed Dr Brennan, O'Brien said that he knew both people very well, and that he did not believe Sam Kavanagh.
Regarding the drips, O'Brien explained that the use of drips was recommended by Dr Brennan. They had discussions all the time and he was aware that other stables had started to use pre-race and post-gallop drips and were still continuing with them so he thought it would be worth trying. O'Brien said that he did not get into the specifics of what was included in a drip. When questioned further he said they were supplements, electrolytes and vitamins. He said that Dr Brennan did not explain the exact recipe at the time. The drips cost $120.00 and the horses selected were horses that they could justify the cost on; better horses that were aiming for better races and bigger prize-money.
O'Brien said that he was rarely present when Dr Brennan administered drips. Most vet work was done by the foreman and Dr Brennan. He had no concerns with the condition of horses receiving a vitamin drip and there were no adverse reactions. He was unaware of any problem experienced by Dr Brown with the horse Feels Like Home.
When he was told that Ms Potter said she saw Dr Brennan add a substance from the vitamin complex bottle into a drip at his stable, O'Brien said he did not know Ms Potter and he did not believe that evidence. He said there were a hundred bottles in the back of every vet's vehicle. He said it did not add up that Dr Brennan would knowingly use anything like that, it would be reckless.
O'Brien said his position was simple: Dr Brennan suggested the horses get drips and he agreed to a trial. He never would have agreed if he knew that he was taking any sort of risk.

[90]

At the commencement of the interview with the stewards on 21 July 2015, O'Brien said that he had been informed by Dr Brennan that the drips were definitely the reason why his horses had gone over the cobalt threshold. He said that he was not aware of that, and was also not aware that there was a product that was in any way, shape or form containing cobalt.
He explained that at the start of Spring, Dr Brennan told him he thought he could help O'Brien's horses' recovery by implementing an IV drip regime. He started to trial this over the Spring on a select group of horses. O'Brien said that Dr Brennan specifically told him that there were no prohibited substances in the drips. They were supposed to contain vitamins, minerals and electrolytes, B12, VAM. O'Brien said 'It was [Dr Brennan's] recipe and he was very specific that there was absolutely nothing that would be any problem ...'[48]
When told that Dr Brennan told RVL that he had indicated to O'Brien that there was an opportunity to get the drips tested, O'Brien said that he had no recollection of that. He said he had no recollection of Dr Brennan saying that there were no guarantees about this substance or these vitamins, and it would cost $10,000-$100,000 to get it tested. He said that Dr Brennan was just not the sort of person that would use a product knowing that it was a prohibited substance.
When O'Brien was asked whether he made a payment himself for the items, he responded that Dr Brennan had told him that he'd add a cost for them on top of what would be billed out to the owners. O'Brien explained that he subsidises a lot of things in his stable, particularly if they are on trial, which these drips were. Until he was prepared to back the product and believed in it himself, he was not prepared to check out the complete cost to the owners. While there was a trial period, he would foot the bill. He had trialled other products on a similar scenario, and later gave an example of a trial of an algae supplement that had just concluded, which cost him $6,000-$8,000.
O'Brien said that Dr Brennan was not specific about the costs. He said it would not be much. On 19 November, he asked O'Brien for $3,000 to cover the drips that had been used during the trial period. Dr Brennan told O'Brien that he was going to be out of pocket because of the trial and O'Brien would have to fund some of it.
O'Brien said he first found out that the bottle of vitamin complex was administered to his horse on the morning of the interview. He said Dr Brennan told him that 5 mL from the vitamin complex bottle has gone into the drips. He said that until last night, he believed that the defence was to be that the VAM, Cophos and Ferrocyl had lifted the cobalt levels. They had done a lot of research and spent a lot of money on scientists who were adamant that it can cause a lift in cobalt levels.
When it was put to him that Dr Brennan told RVL that he had said to O'Brien that he could not give any guarantees that was no prohibited substance in this product, O'Brien said that the possibility of the presence of a prohibited substance was not even brought up; Dr Brennan never 'red-flagged' any issues at all.
When pressed as to why he had not mentioned the drip trial previously, O'Brien said '... as far as it was told to me, it was not an unknown substance. There was a recipe for his drips and obviously this is one of the parts of it.'[49] O'Brien said: 'It never occurred to me to mention it'.[50]

[94]

As to the drips, O'Brien said he was aware that a couple of stables used IV fluid replacement drips, however it was not something he had ever used in his stable. He had probably given 10 drips in the whole 20 years. Dr Brennan approached him and suggested that he trial some IV vitamin and mineral supplement drips. The concept was that the IV got the fluids in more quickly straight after the gallop. O'Brien said that as he knew that veterinary work was expensive, when he agreed to the trial, he told Dr Brennan that if the trial was costing too much, he was happy to put in some money. No actual figures were discussed.
O'Brien did not discuss the specific cost with Dr Brennan before he requested $3,000 in the middle of November 2014. Dr Brennan made the request in the morning at the O'Brien's stable and O'Brien agreed to transfer the money, which he did by his phone later that day. He used the only account he had access to; all the business accounts are run out of the office and Dr Brennan seemed like he wanted the money that day.
As to the ingredients of the drip, there was not a specific discussion but O'Brien said he understood the drip was going to be electrolytes, minerals and vitamins. He said at the time, he was interested in the concept of IV replacement and he trusted that his vet would be far more sophisticated in his knowledge of what specific vitamins and electrolytes should be in the drip, but it was very much the concept of an IV drip with vitamins, electrolytes and minerals.
O'Brien said that he only had two conversations about cobalt prior to 14 January 2015. One was with Dr Brennan about the use of cobalt in horses in South Australia where horses were not as stringently regulated as in Victoria. The other was with Mr Bailey while they were in the mounting yard at Sandown.
O'Brien said that although he knew the rule had come in, he did not know anything else about cobalt. In the course of his conversation with Dr Brennan, he learned that cobalt was carcinogenic and not something that could be handled. That was the only scientific knowledge he had. He knew nothing about the duration of its efficacy.
Asked why he did not volunteer the information about the $3,000 in his interview on 14 January 2015, he said that he was not asked the question. He said that he had referred to pre and post-race drips, but did not use the word 'trial'.
O'Brien said that he had never previously had a positive for anything. In cross-examination, he denied that he lied in his interview on 21 July 2015 when he said that there had been no discussions with Dr Brennan about any new products. He explained that while drips were being trialled, the IV supplements were products that had always been around, it was just the way they were being used that was being trialled.
Cross-examined about his payment of $3,000 to Dr Brennan, O'Brien said that on 21 July 2015 he was angry with Dr Brennan for a lot of things; he had just been told that his drips had had 5mL of vitamin complex in them. He said that Dr Brennan's disclosure of the $3,000 payment was not the number one thing that he was angry with Dr Brennan about.
O'Brien was asked about whether his answers to RVL on 14 January 2015 in relation to contact with Mr Moody prior to the stewards' arrival at his stable were truthful. He said when Mr Moody called him, he did not know whether he was telling him the truth or if it was just a rumour. He said that later he had brought up the phone call with Mr Bailey. He said at the time, he did not tell the stewards about the phone call because he did not want to bring Mr Moody into his situation until he knew what had happened.
Asked in further cross-examination whether the amount of $3,000 was a large amount to trial a new product in the context of his business, O'Brien said it was not given the breadth, scope and amount of drips that were given.

[96]

O'Brien said that he had been in the racing industry for 25 years and had never been charged with an offence against the Rules of Racing in relation to prohibited substances.
Prior to 14 January 2015 when he was informed of the cobalt positives, he had complete faith in Dr Brennan. Nothing Dr Brennan had said or done indicated that his trust was misplaced.
O'Brien said three or four weeks prior to the implementation of the drip trial, Dr Brennan told him that he had seen Chris Waller's yard and they were using IV drips a couple of times per week to put vitamin and electrolyte supplements into horses. He said they were doing this post gallops and on a more systematic basis than what O'Brien was doing. He explained that Mr Waller was considered to be outstanding in the last four or five years, and is probably the best trainer in Australia.
O'Brien explained that if the drips were going to be rolled out bi-weekly, he did not want it to become onerously expensive for his clients. It was going to be more expensive than the system he previously had in place, and he was happy to pay some of the costs out of his stable budget rather than bill the full amount to the owners.
O'Brien said that there was no specific discussion with Dr Brennan about the ingredients of any IV drips.
As to the payment of $3,000, O'Brien said that Dr Brennan asked him to contribute this amount. O'Brien saw this as a contribution to keep costs for the trial under control. He said in the scheme of the size of the operation, it was not a big expense. He used his personal account, which he could operate from home. Dr Brennan did not ask him to pay in cash.
Regarding the phone-call with Mr Moody, O'Brien said that Mr Moody called him on 14 January 2015 and informed him that Kavanagh had a positive to cobalt and that he had heard a rumour that O'Brien also had a positive to cobalt as well.
O'Brien said that the first time he saw a photograph of the vitamin complex bottle was in his interview with the stewards on 13 May 2015. At that time, he was aware that Sam Kavanagh was alleging that the bottles found in his stable complex had been provided by the clinic, and that the clinic, through Dr Brennan, said that was completely untrue. When questioned about this inconsistency, O'Brien said that it was not a dilemma for him; it seemed beyond doubt that Sam Kavanagh was not telling the truth.
O'Brien said that prior to the meeting with Dr Brennan on 21 July 2015, he had no knowledge that the vitamin complex had been added to the drips. At the meeting, Dr Brennan said that he had not been honest as to the complete contents of his drips. O'Brien questioned him about this, and Dr Brennan told him he was sorry. O'Brien said that he was horrified and said to Dr Brennan: 'You can't be serious, Tom. We've come all this time and now you're telling me the truth'.[52] He said that Dr Brennan told him it was something that Dr Matthews had suggested he trial.'
O'Brien said that he had very little interaction with Dr Matthews and in the time following the positive results there had been no mention of him. Nor had there been any mention of Dr Matthews in the context of the move from using drenches to IV drips. O'Brien said that he was incredulous that Dr Brennan would use a product because Dr Matthews had vouched for it. Dr Brennan had previously made disparaging remarks about Dr Matthews. Dr Matthews was not seen as measured and professional as someone like Dr Brennan.
During this conversation, Dr Brennan also told O'Brien that he had informed the stewards of the $3,000 payment. He said he told RVL O'Brien made a $3,000 contribution to the drip regime. He did not say it in the terms that it was later put to O'Brien, namely that it was $3,000 for three bottles at $1,000 each.
O'Brien said that Bullpit received a vitamin drip on 17 December 2014. If it was known at that stage that other horses had gone over, the drip should not have been provided. O'Brien said that he should have been told that there was a problem in the stable with horses going over the threshold. O'Brien did not say that there was any obligation to notify him of Magicool's positive. There was no contemplation of continuing the drips after 14 January 2015.
In cross-examination, O'Brien said that he did not know what the cost per drip was. He agreed that he did not ask Dr Brennan what the cost would be for months.
When the cobalt threshold was introduced on 14 April 2014, O'Brien said he read that there was a threshold of cobalt of 200. He said he could not recall any literature that came out at the time about it, but he would have read whatever literature was presented by RVL.
O'Brien explained that the drip trial was about changing the method of delivery for vitamins; instead of using a saline drench they would use IV drips. When Dr Brennan's evidence of the conversation he had with O'Brien about the vitamin complex was read to O'Brien, he said everything that had just been read out was a complete fabrication. He had a discussion with Dr Brennan about trialling IV drips, and Mr Waller was mentioned during this conversation. O'Brien later went back to Dr Brennan and told him in which they agreed to trial a drip program. O'Brien said it did not occur him at the time to think about informing owners, or to ask others in his stable about whether it was a good idea or do any research.
When questioned, O'Brien agreed that he did not use the word 'trial' in his interview with the stewards on 14 January 2015.
Apart from a discussion about it not being too expensive for the owners, O'Brien did not ask Dr Brennan about the cost of the drips. He did not look at the vet bills to see that $120 per drip was being charged. Dr Brennan did not say that an additional $1,000 a bottle was to be paid for the vitamin complex. O'Brien did not conduct any review as to the efficacy of drips in October or November 2014. By the end of December 2014, his horses had received about 80 drips. This amounted to about $9,600 plus his contribution of $3,000.
O'Brien said that when Dr Brennan asked for $3,000 he had never seen or heard of the vitamin complex bottle. He did not think $3,000 was a lot to ask for vitamins, minerals or electrolytes. He did not know exactly how many mLs of vitamins were being added to each drip. He did not hear of the vitamin complex bottle until 21 July 2015.
At the time Dr Brennan asked for $3,000, O'Brien had an approximate idea of how many horses had received drips, but he could not recall the number now. He estimated that about 20 horses had received about 50 to 60 drips. He did not know how the $3,000 was broken down into drips. As at November 2014, O'Brien estimated that the total vet spend by his clients was anywhere from $30,000 to $50,000 a month.
O'Brien said that if Dr Brennan had said to him that the contents or parts of the contents of the IV drips were being sourced from Dr Matthews, that would have rung some alarm bells. O'Brien said at the time he agreed to the drip trial, he did not suspect in the slightest that there was any possibility that the drips would contain cobalt or any prohibited substance. He had no doubt for the entire period that the drips were being administered, and when he was notified of the cobalt positives he had nothing to hide.
O'Brien said he had known Sam Kavanagh since he was a young boy as O'Brien was friends with his father and Sam Kavanagh was someone for whom he had a lot of time. O'Brien said that he ceased contact with Sam Kavanagh in late February 2015 when he learned about some unsavoury aspects of the trouble Sam Kavanagh was in.
O'Brien said that at no stage did Sam Kavanagh mention the fact that he had used a vitamin complex from Dr Brennan. Sam Kavanagh did not mention to him that Mr Corby had come to Sydney to try to persuade him to forget about the vitamin complex bottle. O'Brien only found out about this later.
O'Brien said that even at his interview on 13 May 2015, he dismissed it out of hand that a vet would be using an unlicensed product in a drip. He considered that it was outrageous to accuse Dr Brennan of that. Dr Brennan remained O'Brien's vet until June 2015.
O'Brien said that by 2014, his stable had 180-200 horses and 90 boxes under management in Barwon Heads and Flemington. He now had 70-75 horses. At the start of 2015, he had about 50 staff. Staff numbers were now down to about 30.

[99]

Kavanagh was interviewed by the Honourable Keith Mason QC AC on 18 March 2015 as part of an investigation by Racing NSW. He was asked about the Lord Dudley meeting on 2 March 2015. Kavanagh said that the day before this meeting, he had become aware that the inquiry might focus more widely on Dr Brennan or on the supplier of the product that was put into Midsummer Sun.
Kavanagh explained that they day before the Lord Dudley meeting, he was at the horse sales in Oakland Junction in Victoria. Dr Brennan asked to meet him and when he did, told him that Sam Kavanagh was in extreme financial trouble and was lying to the stewards. Sam Kavanagh had named Dr Brennan in the NSW Stewards' Inquiry. Dr Brennan said he saw Matt Rudolph who said it would be beneficial for Kavanagh to come up and have a meeting and try and clarify the whole situation. Dr Brennan told Kavanagh to find out the extent of Sam Kavanagh's problems and what was going on. He said Mr Rudolph had offered to meet with Kavanagh to try to work out a solution.
Following this conversation, Kavanagh rang his son and demanded a meeting. Kavanagh informed Mr Rudolph of his time of arrival in Sydney and Mr Rudolph picked him up at the airport. Kavanagh met Sam Kavanagh outside the Lord Dudley Hotel, where they had a heated exchange in which Sam Kavanagh said that he had gotten the bottle from Dr Brennan. Kavanagh questioned him about his finances and the cobalt and caffeine positives. Both Kavanagh and Sam Kavanagh were already angry when Mr Rudolph joined them at the hotel.
Kavanagh said that Mr Rudolph told Sam Kavanagh to tell the truth, come clean and retract his statement implicating Dr Brennan. He said that Dr Brennan's insurer would be after him financially. If he told the truth, the NSW Stewards would be more lenient on him. He told him he was only young and would be quite welcome back into the industry.
Kavanagh said that he added to Mr Rudolph's remarks by questioning if Sam Kavanagh realised how serious these allegations were, and whether he could prove that Dr Brennan was the supplier. Sam Kavanagh stopped speaking and walked out of the conversation and Kavanagh brought him back. Mr Rudolph then continued to tell Sam Kavanagh that the bottle did not come from Dr Brennan. Sam Kavanagh again got up and walked out.
Later in his evidence, Kavanagh said that a lot of things have surfaced that he was not privy to on that day, including that the clinic did supply the bottle to Sam Kavanagh. Kavanagh said that he had met Dr Brennan and Mr Rudolph over the years, the two were close.
Asked about what has emerged since that made him think there was a case against Dr Brennan, Kavanagh said that he had since gone to the clinic and demanded to know what was going on. Dr Brennan and Mr Corby told him that they sent a bottle to Sam Kavanagh that had cobalt in it.

[103]

Kavanagh gave evidence to the RAD Board on 7 December 2015. He said that there was no discussion about a product that had been successful in the harness racing industry for which Dr Brennan could not vouch or give any guarantees. Dr Brennan had never shown him a bottle, there was no discussion about paying him $1,000 per bottle and he had never paid Dr Brennan $3,000.
When asked whether Dr Brennan said that it would cost between $10,000 - $100,000 to get the vitamin complex tested, and that it was sourced in Canada, Kavanagh said that Dr Brennan was a liar. He said that it was not suggested to him that Dr Matthews was in some way connected with the product.
Kavanagh said that he thought Dr Brennan was going to put large doses of B vitamins, electrolytes and things like that in the drips and that it would stay in the system longer instead of flushing it straight out through the saline drench.
Kavanagh explained that he got the second phone so he could speak to his son after 14 January 2015. He disputed the allegation that he got a second phone because he wanted to be able to have conversations out of any potential earshot of the stewards in relation to his cobalt positive. Kavanagh explained that the stewards told him that all that they wanted were call records up to and including 14 January 2015 and nothing after that would be checked. He did not remember how often he spoke with his son between 14 January and 21 July 2015 but said it would have been regularly.
Kavanagh described the drip regime as an alternative regime rather than as a new product. It was an alternative to oral vitamins and saline drenches. He did not have a discussion about how much it was going to cost. No figure was mentioned.
When questioned about Dr Brennan's evidence that he had a discussion with Kavanagh at the back of Dr Brennan's car, Kavanagh said that he totally disagreed with Dr Brennan's evidence that the back of his car was open, and that the bottle was on the top of the fridge.
Kavanagh said that Magicool was receiving massive doses of vitamins prior to the end of September 2014 through an IV drip administered by Dr Brennan. Kavanagh said that there is nothing out of the ordinary with a vitamin drip. When questioned about his comment in the interview with the stewards on 14 January 2015 that 'we don't even inject vitamins' he said that the injection of vitamins was done through a syringe and these were dripped vitamins which are totally different.
Kavanagh reiterated that after the Lord Dudley meeting he went into Dr Brennan's office and demanded to know what was going on and Dr Brennan or Mr Corby told him that they had sent the bottle that Sam Kavanagh alleged had cobalt in it.

[105]

Kavanagh gave evidence to the Tribunal on 14 and 17 October 2016. He explained that in about July or August 2014, Dr Brennan replaced Dr Vallance as the principal vet in his stable. Dr Brennan came in every day.
Kavanagh said that as a trainer he did everything in his power to ensure that horses under training perform at their peak, remain fit and well, and that nothing untoward or prohibited is administered to them. The system that Kavanagh put in place to ensure that nothing was inadvertently administered was to employ a vet to do the administration. Kavanagh said that when a vet is employed, the system is explained to them, as well as information about products. He sat down with a new vet and explained that there is to be nothing prohibited given to the horses. He said did that with Dr Brennan when travelling from Adelaide.
Kavanagh said that at the time of the introduction of the drips on 27 September 2014, Dr Brennan had been the primary vet for about two or three months. Dr Brennan often recommended new products. Kavanagh said he trusted Dr Brennan. He was not unhappy with his performance as a vet at that time. They were going well as a trainer vet relationship.
Kavanagh said that the vet did everything and was the only person who treated his horses. The vet had authority to administer a product to a horse if it was in his view appropriate to do so as a veterinarian, but he would need to consult for large injuries or unusual treatments.
Asked about the commencement of the drip program, Kavanagh said that Dr Brennan told him that it would be much better to put vitamins into a horse through a drip because delivery of the vitamins and salts through a tube and saline drenches was making the horses urinate, flushing their systems out quickly. Dr Brennan wanted the vitamins to go in a drip straight into the blood. Dr Brennan said that what was going into the drips was multivitamins, VAM and B12, similar to what is in the saline drench. Cobalt was never mentioned.
Kavanagh said he told Dr Brennan he would give the drips a try and if he did not like them the previous treatment would resume. Cost was not discussed before the trial commenced. He said he never paid Dr Brennan any money in relation to the drips.
Kavanagh said that Dr Brennan had never shown him the vitamin complex bottle. Knowing what the bottle looks like now, he said that had he been shown it, it would not have been used on his horses. He commented that it did not look professionally labelled. Kavanagh said that he would not use a product if the vet specifically told him that he did not know what it was and could not vouch for it. The rules state that only registrable products can be used. He said that Dr Brennan's assertion that he told Kavanagh that he could get the vitamin complex tested for between $10,000-$100,000 was incorrect, as was the assertion that he gave Dr Brennan $3,000 cash.
Kavanagh said that he used the drips for about a month and stopped using them because he believed they were not working. There was no reason to believe that any of the horses had improved, and the urine of the horses had started to thicken up. He considered it more beneficial to go back to the 'tried and true' formula.
When asked about Dr Brennan's evidence that he told Kavanagh that Dr Matthews had obtained a new multivitamin complex from Canada that is 100% natural, Kavanagh said Dr Brennan was a liar. He had the same response when asked about Dr Brennan's evidence that he told Kavanagh that Dr Matthews had told him that it didn't have cobalt in it, but there were no guarantees and it would cost between $10,000 and $100,000 to get it tested. Dr Brennan also lied when he said Kavanagh told him he would get a list of the horses Dr Brennan could start using the vitamin complex on.
Dr Church's evidence that Dr Brennan had alleged that Kavanagh approached Dr Brennan as a result of a conversation with Dr Matthews was put to Kavanagh, and he responded that it was totally incorrect. He had not heard that allegation before Dr Church gave evidence.
He did not have a discussion with Dr Matthews on a Sunday in which he asked him if he had anything new available. He said Dr Brennan's allegation that Kavanagh then approached him the following Monday and asked for a substance Dr Matthews had mentioned, and that Dr Brennan then sourced the substance through Dr Matthews, was a total lie.
Asked about Magicool on the evening of the Cox Plate in 2014, Kavanagh said that he was contacted from the stable at about 4pm that day and informed that Magicool was showing signs of colic. Kavanagh said that it did not occur to him that the drip that the horse had been given could have caused his symptoms that night. If a saline drench had been administered, it might cause colic if the horse had an ulcer in its stomach. However, a horse could not get colic from a drip.
Kavanagh parted ways with Dr Brennan and the clinic in the second week of November 2014 because of a dispute about veterinary expenditure on a horse. Kavanagh had no relationship with Dr Brennan after that.
As at 14 January 2015, Kavanagh had not spoken to or seen Dr Brennan since he decided to use a different vet. He had no malice towards Dr Brennan at that stage. He had no private conversation with Dr Brennan prior to his interview by the stewards on that day.
From 14 January 2015 when Kavanagh was notified of his cobalt positives, his conversations with Dr Brennan were sparse. Occasionally, if Kavanagh saw him, Dr Brennan might give him further updates of how cobalt levels rose with vitamins. Dr Brennan did not ever suggest that there was an ingredient that he did not know about in the drips.
Kavanagh said that prior to the Lord Dudley meeting, Dr Brennan called him while he was at the Oaklands Junction sales and told him Sam Kavanagh was in trouble and he was alleging that the cobalt came from Dr Brennan. Dr Brennan said that Sam Kavanagh was changing his story regularly, and that it was about time that Kavanagh actually forced a meeting, went to Sydney and talked to him to see what was going on.
Kavanagh said that before entering the hotel, he wanted to find out where his son's caffeine positive came from. Sam Kavanagh could not or did not want to tell him. Kavanagh said that Mr Rudolph 'savaged' Sam Kavanagh once he arrived. He said that Mr Rudolph 'just attacked' Sam Kavanagh and told him that the cobalt never came from Dr Brennan. He demanded that Sam Kavanagh retract his statements. Kavanagh described it as 'a straight out fight between Matt Rudolph and Sam Kavanagh to say that Dr Brennan had never given Sam Kavanagh the cobalt. It was just a mess.'[54] The meeting lasted an hour and a half and Sam Kavanagh walked out twice.
Following this meeting, Kavanagh said he went to the clinic and asked what was going on. He said that Mr Corby told him that a couple of bottles were sent up to Sam Kavanagh, and he was now alleging they had cobalt in them. Mr Corby said that Sam Kavanagh owes a lot of money and was trying to distract from that.
When asked about his second phone, Kavanagh said he bought a new pre-paid phone from a phone shop on 14 January 2015. He did this on his wife's insistence. He said that he had not tried to hide the existence of the phone from anyone.
According to Kavanagh, a steward came in to image his phone and stated that he did not want anything after 14 January 2015. In cross-examination, he was taken to a letter addressed to him dated 19 January 2015 which clearly directs him to make available mobile telephone records for the period from 1 September 2014 to 19 January 2015.
Kavanagh agreed that his evidence as to his second mobile phone had shifted a number of times. In a letter to owners dated 22 December 2015 concerning the cobalt positive returned by Magicool on 4 October 2014, he stated that:

[114]

I am satisfied that the administration of cobalt salts in this way was the principal reason why the O'Brien horses and Magicool recorded cobalt positives in excess of the threshold level of 200µg/L in urine. I am also satisfied that apart from Dr Brennan, the veterinarians who administered pre-race drips to the O'Brien horses and to Magicool were unaware that the drips they were administering contained fluid from a vitamin complex bottle of unknown provenance.
Dr Brennan was the principal perpetrator of the contraventions of the Rules of Racing. Until 20 July 2015, he sought to conceal his own role by numerous untruthful denials, and false statements. Those statements were made to stewards, Dr Church, clinic veterinarians and staff and to O'Brien and Kavanagh. Since 20 July 2015, Dr Brennan has sought to maintain a new account of what transpired, essentially alleging the involvement and connivance of O'Brien and Kavanagh in what took place during Spring 2014. O'Brien and Kavanagh have consistently denied Dr Brennan's post-20 July 2015 account of conversations and events over the Spring period in 2014.
For the most part, the conversations that occurred in Spring 2014 between Dr Brennan and O'Brien, and Dr Brennan and Kavanagh are conversations between veterinarian and trainer alone. However, considerable insight can be gained into the probable substance of those conversations from the evidence of other witnesses, particularly Dr Church, clinic veterinarians and staff, and Sam Kavanagh.
I have had the considerable benefit of observing the evidence of the principal witnesses over many days. The evidence of Dr Brennan has very low reliability and credibility for the reasons which follow. I accept the evidence given by O'Brien and Kavanagh as to their conversations with Dr Brennan that led to the conduct of the pre-race drip program involving the O'Brien horses and Magicool and reject the version stated by Dr Brennan. Dr Brennan's evidence cannot be relied on when it is in conflict with the evidence of other witnesses.
I reject Dr Brennan's account of the conversations that he had with O'Brien and Kavanagh for six main reasons:
- (1) Dr Brennan has a very low level of credibility. He has admitted several times that he has lied in his evidence at various stages of this matter.
- (2) Dr Brennan reneged on his professional responsibilities when as a senior partner, he was responsible for ensuring high standards of ethical conduct by veterinarians and staff. He himself was expected to be beyond reproach.
- (3) Dr Brennan sought to conceal his actions from Dr Church, clinic veterinarians and staff and from the stewards.
- (4) Dr Brennan's account since 20 July 2015 has all the hallmarks of expediency. It is inherently improbable and seeks to minimise his own role and spread the blame to others.
- (5) The evidence of Dr Church, the clinic's veterinarians and staff, and the evidence of Sam Kavanagh and Dr Matthews, all point to the likelihood that the evidence of O'Brien and Kavanagh as to what passed between them and Dr Brennan is correct.
- (6) Dr Brennan's 'confession' took place only when he realised that his evasions and denials had become untenable in light of the evidence of his own veterinarians and staff and that of Sam Kavanagh.
I now expand on these reasons.

[119]

Dr Brennan sought to conceal his actions from clinic veterinarians, staff and ultimately, the stewards. This extended to the destruction of evidence including the clinic's postal book and bottles of vitamin complex, as well as the repeated provision of false information.
Dr Brennan intentionally destroyed evidence that he knew might assist the stewards in their investigations. He threw out the clinic's postage book, advised Sam Kavanagh to discard his bottles of vitamin complex and discarded his own bottle.
When Dr Brennan found out that Sam Kavanagh had retained his vitamin complex bottles, he concocted a story about a travelling salesman who dropped off a sample in order to distance himself and the clinic from Sam Kavanagh's positive cobalt result.
He instructed Mr Corby to speak to Sam Kavanagh in the strongest terms about the consequences for him if he did not withdraw his allegations that the source of the vitamin complex bottles was the clinic and Dr Brennan. When this failed, he arranged for his friend Mr Rudolph and Kavanagh to meet with Sam Kavanagh at the Lord Dudley Hotel to seek to dissuade Sam Kavanagh from stating to the stewards that the vitamin complex bottles had come from Dr Brennan.
Dr Brennan did not seek the counsel of his senior partner, Dr Church, or inform him of what he was doing. He sought to keep his activities secret from his staff, particularly his veterinarians who would know that what he was doing was wrong. For example, when Dr Brennan asked Dr Wood to administer the drip he had prepared for Bondeiger, he told her that he had already billed a drip. As a result, she did not record the administration of the drip in the treatment book. He lied at staff meetings, to Dr Sykes and to Dr Church until there was no alternative.
In addition to this, Dr Brennan lied in interviews. He was interviewed on five occasions between January and June 2015. On each occasion, he concealed his role and involvement. He concealed his use of the vitamin complex and the fact that its contents and provenance were unknown. He denied that the clinic had sent the vitamin complex bottles to Sam Kavanagh and that he had charged $1,000 per bottle. He said he never had a bottle of vitamin complex in his possession or supplied it to anyone. When he was shown a photograph of the bottle, he said that was the first time he had seen the bottle.
He disputed that Ms Potter was being truthful when she said she had observed him putting an additional substance in the drip at O'Brien's stable and repeatedly denied adding the vitamin complex to any drips. He denied instructing Ms Potter to ensure that the bottles to be sent to Sam Kavanagh were properly wrapped because they were expensive.
After the clinic's postage book 'went missing', Dr Brennan asserted that his understanding was that postage books are thrown out once they are full. He did this in order to avoid leaving a trail of evidence connecting him to the despatch of bottles of vitamin complex to Sam Kavanagh. He denied getting a bottle of vitamin complex from Dr Matthews which he later asserted was the truth.
On 20 July 2015 when Dr Brennan advised the stewards that his previous statements had been untruthful, it also became clear that the administration spreadsheets[56] previously prepared by him did not in fact reflect the administration of the vitamin complex to each horse. Dr Brennan advised the stewards that the IV drips referred to in the administration spreadsheets contained 5ml of vitamin complex which he had added to the drips. Dr Brennan deliberately omitted to record the addition of vitamin complex in administration spreadsheets.

[122]

At his interviews on 20 July 2015 Dr Brennan admitted to using the vitamin complex, and claimed he had sourced it through Dr Matthews. He said that Dr Matthews told him he sourced the bottle from Canada. Dr Brennan's allegations are denied by Dr Matthews who points to his departure from the clinic by April 2015 and subsequent lack of contact with Dr Brennan. Dr Matthews says that Dr Brennan is seeking to make him the scapegoat for his own actions.
Dr Brennan's claim that the vitamin complex came from Canada was not verified by him. No manufacturer, distributor, website, source, address, or telephone number was ever provided to make good Dr Brennan's claim. On 20 July 2015, he told the stewards that he made no inquiries of the Canadian source. Later in the same interview, he stated that Dr Matthews told him that he got onto the manufacturer in Canada who had sent him a list of what was in it, and it was only B vitamins. Despite their obvious importance, Dr Brennan did not seek details of the constituent vitamins and of the communications with the Canadian manufacturer. At an interview with the Victorian stewards, Dr Brennan said he did not know from whom Dr Matthews was getting the vitamin complex in Canada, but the bottles were purchased online. Dr Brennan did not make any serious effort to obtain and provide the details. In the same interview, Dr Brennan alleged that Dr Matthews said he knew the person in Canada. Again, despite the significance of this information, the name was never obtained or provided.
When pressed about the supposed Canadian supplier at the RAD Board in December 2015, Dr Brennan sought to exculpate himself by blaming Dr Matthews and spinning an elaborate story. The story was that Dr Matthews was evasive and a very good liar. Dr Matthews started off that it was a friend of his in Canada that he knew through an international trainer. Then Dr Matthews said that the contact was a compounding chemist in Canada. It was Dr Matthews who said he would provide the details but did not. Dr Brennan then sought to disparage Dr Matthews further with the assertion that problem gamblers were the best liars going around because they live that lie every day.
Dr Brennan named Canada as the source of the vitamin complex in his evidence to the Tribunal. Significantly, he added that sitting here now, he did not believe a word of what Dr Matthews said about Canada. He now believed that Dr Matthews was getting the vitamin complex from someone else.
In their evidence, neither Dr Church nor Sam Kavanagh make any mention of Dr Brennan naming the source of the bottles as Canadian in his discussions with them about the vitamin complex. If the source of the bottle was Canadian, it is likely that it would have been discussed with one or the other at some time.
Dr Brennan's account that he introduced the vitamin complex to O'Brien and Kavanagh has always been denied by them. It is also denied by Dr Matthews who said that he never spoke to any manufacturer in Canada. Based on the evidence before me, I am of the view that Dr Brennan's evidence that Dr Matthews sourced the bottles of vitamin complex from Canada is untrue. Dr Matthews provided his phone and iPad to the stewards for searching. There was no evidence that he had been in contact with anyone Canada or that there had been any transactions, searches or monetary transfers to Canada.
Mr Villella, a steward of considerable experience, said that the stewards could not establish whether the bottle of vitamin complex came from Canada or where it came from.
Dr Brennan's story about Dr Matthew sourcing the vitamin complex bottle from Canada is most likely a fiction concocted by Dr Brennan to resolve the embarrassing issue as to how he obtained and used untested and unproven bottles of vitamin complex that contained high concentrations of cobalt.

[124]

Dr Brennan said that he had doubts and suspicions about the true content of the vitamin complex bottle from the outset. He contacted Mr Bova about testing the contents of the bottle. He admits that the cost of testing for cobalt was only a couple of hundred dollars. Given his experience and professional expertise, he can be taken as entirely familiar with racing laboratories and the testing regime, including the cost of pre-race and post-race swabs. It was easy for him to find out and arrange testing for prohibited substances just as is regularly undertaken by the stewards. He admits that he should have contacted RASL and undertaken elective screening. He did not do so.
Sam Kavanagh said that he discussed the vitamin complex with Dr Brennan who said that he did not think it was cobalt. Later, he said he was told by Dr Brennan that it was a multivitamin drip, and was not a prohibited substance. Dr Brennan introduced the drip on the basis that other trainers were using it and that it was legal. He was assured that it was just vitamins and totally safe without a holding period.
Dr Brennan's evidence does not stop at his lack of knowledge of the provenance of the vitamin bottle and his conversation with Mr Bova about the cost of testing ranging from $10,000 to $100,000. He says that he separately told O'Brien and Kavanagh of these matters.
Both O'Brien and Kavanagh were highly competent trainers with years of experience in the racing industry. Both gave evidence that they would have been astonished at a suggestion by their veterinarian to administer an IV drip of unknown content into highly valuable thoroughbred racehorses under preparation for the Spring Racing Carnival. It would have been a ridiculous or laughable suggestion. Neither O'Brien nor Kavanagh had any past experience with cobalt or prohibited substances.
Significantly, Dr Church agreed that a veterinarian who proposed to either O'Brien or Kavanagh that they use a product that cost $1,000 and for which the veterinarian could not vouch could expect to be thrown out of his stable. Dr Church said that it was inconceivable that anyone would use a product without knowing what it was.
Dr Brennan's evidence that this was part of the sales pitch used by him to persuade O'Brien and Kavanagh to sign up to the new drip program must be rejected. His evidence that both O'Brien and Kavanagh independently agreed for him to use an unknown product on their best thoroughbred racehorses is highly improbable, even fanciful, and must also be rejected.

[126]

Dr Brennan sold two bottles of vitamin complex to Sam Kavanagh for $1,000 each. Sam Kavanagh received the two bottles by post from the clinic. He admits to the purchase and receipt of bottles of vitamin complex. He administered drips himself.
The stable management of O'Brien and Kavanagh was very different. Neither O'Brien or Kavanagh, or their staff, administered drips to horses. This was exclusively done by veterinarians. Dr Brennan did not provide O'Brien, Kavanagh or their stable staff with any bottles of vitamin complex.
Dr Brennan kept a bottle in his car fridge, adding 5mL of the vitamin complex to drips administered by him, or other veterinarians on his direction. He said that O'Brien never saw a vitamin complex bottle. He was unsure whether Kavanagh had. Neither O'Brien nor Kavanagh had possession of any bottle. Both O'Brien and Kavanagh have consistently denied sighting a vitamin complex bottle.
There is no reason to doubt O'Brien's and Kavanagh's evidence that they did not take any notice of a 100mL brown bottle standing amidst all of the other bottles, medicines and preparations found in a veterinarian's fridge on the back of a truck. They are only likely to have done so if the bottle was specifically pointed out to them. Dr Brennan does not suggest that he did this.
Dr Brennan says that he sold three bottles of vitamin complex to O'Brien and three to Kavanagh. O'Brien says that he paid Dr Brennan $3,000 by bank transfer in November 2014 to assist in meeting the cost of the drip trial. Kavanagh says that he made no payment to Dr Brennan in any amount. There is no banking or documentary evidence that he did. Dr Brennan says Kavanagh paid $3,000 in advance for the bottles, even though only one bottle was used for his horses. This is a most unlikely scenario for an unseen product yet to be proven or tested. O'Brien said that the amount of $3,000 was not an enormous amount to trial a new product in the context of his business. It was reasonable and a contribution to see that costs to owners were kept under control. As at November 2014, O'Brien's clients were spending $30,000 to $50,000 a month for veterinary expenses.
Again the probabilities favour the evidence of O'Brien rather than the evidence of Dr Brennan. It is hard to believe that either trainer agreed to pay $3,000 for three bottles of a product that they had never seen, and which was never delivered to them. Dr Brennan was already charging owners $120 for each drip he administered. The product used by Dr Brennan was not of commercial quality. There is no invoice, sales documentation or information about the vitamin complex.

[133]

The evidence given by O'Brien and Kavanagh as to the conversations with Dr Brennan that led to the commencement of the drip program in Spring 2014, and the administration of the vitamin complex by Dr Brennan, provides a reasonable and rational explanation as to what happened. While the evidence of O'Brien and Kavanagh contains flaws and is open to criticism in some respects, they have consistently maintained their position as to the drip program, what they knew and expected, and what was said to them by Dr Brennan in September 2014 and later.
Prior to the Spring Racing Carnival 2014, neither O'Brien nor Kavanagh had any knowledge or experience of cobalt. They had not studied its effect on horses and horseracing. They did not know how cobalt would be administered, or the cobalt salts or preparations that might be obtainable. They knew that cobalt was a prohibited substance and had no interest in it being administered to their horses. It was not suggested to them by Dr Brennan that there was any cobalt in the drips.
Both O'Brien and Kavanagh were told by Dr Brennan that the drips would contain vitamins, electrolytes, B12, and VAM. Both were under the impression that the drips would aid horses' recovery. Neither were aware that there could be a prohibited substance in the drips.
O'Brien and Kavanagh's accounts of what transpired in their dealings and conversations with Dr Brennan are credible and plausible. They are much more probable than the account of Dr Brennan. The burden of proof on the balance of probabilities to a comfortable level of satisfaction is on RVL and not on O'Brien or Kavanagh. They are not required to prove anything.
I accept that O'Brien and Kavanagh discussed the contents of drips and the drip program with Dr Brennan in general terms. However, Dr Brennan did not disclose to them that he was using material from bottles of vitamin complex in the drips. Their account is consistent with Dr Brennan's failure to list the vitamin complex as amongst the products that he was using in any administrative records. There is nothing unlikely in moving from a drench to an IV drip program for the administration of supplements and additives. The uncontradicted evidence is that other leading trainers were doing so or had already done so. It was sensible and appropriate to select the best horses to participate in this program. Their owners would be best placed to bear the additional costs.

[136]

O'Brien lied to the stewards in his interview on 14 January 2015 when he denied receiving a telephone call from Mr Moody tipping him off about the fact that he had received a cobalt positive and that the stewards were with Kavanagh. Later, he recanted disclosing that he had received such a tip-off. I accept O'Brien's evidence that he initially made false statements to the stewards to protect his source, Mr Moody, who he believed had done him a favour.
Racing Victoria Ltd contends that Kavanagh gave unsatisfactory evidence prior to his interview in May 2015 because he failed to mention the drip program. While at the time of this interview he did not know that Dr Brennan had added material from the vitamin complex bottle to the drips and did not consider the drip program to be different in function to the drench program, he failed to disclose the drip program, which was a change to previous practice. His answer was wrong and misleading having regard to what he knew at the time.
The criticism by RVL of Kavanagh's evidence concerning his second phone has some justification. The existence of the second phone was not disclosed to the stewards on 19 January 2015 when required under a notice. Kavanagh falsely attributed his need for a second phone to his son Sam Kavanagh. It is most likely that Kavanagh's motivation in obtaining a second phone was because of his concern that his private conversations were or might be monitored or overheard by the stewards. Again it does not follow that his non-disclosure of the second phone should be taken as indicative of guilt. The preferment of the charges by the stewards against O'Brien and Kavanagh had a high media profile. There is every reason why Kavanagh would want privacy in his communication with legal and media advisers, family members and friends. The evidence is that he used the second phone to speak to his sons and a family friend and journalist who was assisting Kavanagh as to media matters and research.
Kavanagh admits that he lied during his evidence in the NSW investigation conducted by the Honourable Keith Mason AC QC when he stated that he went into Dr Brennan's office and demanded to know what was going on and Dr Brennan and Mr Corby told him they had sent a bottle to Sam Kavanagh that contained cobalt. This statement appears intended to support his son's statement (then denied by Dr Brennan) that he had received bottles of vitamin complex from Dr Brennan. The false statement did not bolster Kavanagh's own position, rather it was to the advantage of his son despite their estrangement.

[256]

Dr Vine is a scientific consultant and former laboratory director of RASL. He has been a NATA assessor in the fields of chemical and medical testing since 1994.
His reports[120] review the analyses and certificates of the official racing laboratories as they relate to the O'Brien horses and Magicool and conclude that the methods used were appropriate and the results consistent.
Dr Vine said that the scope of accreditation of a racing laboratory is often written in generic terms. Racing laboratories are able to make variations to methods while the method still remains within the scope of accreditation. This included the use of the 2008 accredited method for equine urine. The changes to ChemCentre's accreditation occurred because ChemCentre wanted to include a methodology that made specific reference to equine urine in the scope of accreditation and so submitted a method that specifically referred to equine urine.
As an analytical chemist and as a NATA technical assessor, Dr Vine considered the use of the accredited method for the analysis of equine urine to be a relatively trivial change in that it only involved the dilution step. It was unnecessary to change the scope of accreditation. Racing laboratories have sufficient leeway to allow a minor change like that to be made without affecting their accreditation status. The change in dilution in the test did not require ChemCentre to resubmit the method to NATA, but merely to point out to NATA at the next re-assessment that a change had been made.
Dr Vine described the accreditation of laboratories as usually based on specific techniques. The accreditation of racing laboratories is different. The scope of accreditation of a racing laboratory is very generic in its wording, and will say that the laboratory can use certain methods for the detection of drugs as defined by the Rules of Racing without naming the drugs that are covered. This enables racing laboratories to develop or adapt previously published or in-house methods. Once a review of a method has been undertaken, the method is deemed to be within the scope of accreditation, even though the method is not specifically listed. Laboratories are able to modify existing methods provided that the modifications are not significant or a major departure from existing methods. The methods that racing laboratories use do not have to be specifically numbered or individually assessed by NATA.
Dr Vine said that it was not necessary in his opinion for a method for equine urine to be specifically lodged with NATA. ChemCentre could have extended the original method and been comfortable that it was allowed within the international standard and by the accreditation organisation.

[258]

Mr Batty is the Laboratory Director of RASL. He said that the accreditation that NATA provides to a laboratory is a general accreditation under ISO/IEC 17025. Mr Batty said that RASL had been an accredited laboratory since 1992, and had been reaccredited by NATA every two or three years since that date to the standard at the time.
He said that the process of accreditation of a laboratory by NATA involves attendance at the laboratory by NATA and technical assessors who review the laboratory's procedures, calibration, and staff training. NATA assessors go through the whole laboratory over a one to two day period, and write a report indicating any issues that the laboratory may have to address. The laboratory is required to respond to these issues, and provide evidence of conformance. Once this has occurred, the assessors update the laboratory's scope of accreditation and issue a letter advising that accreditation has been renewed.
Accreditation of a method involves engagement by NATA of a technical assessor with experience in the technique. NATA has a guideline as to how methods are validated. The data required includes data as to precision, accuracy, ruggedness and calibration. The assessor reviews the method, and decides whether it is appropriate and scientifically valid. The assessor may make comments, suggestions or improvements to the method. The assessor then reports to NATA, which provides accreditation. The accreditation process is a relatively simple process to show that the method is fit for purpose. When a method is accredited, NATA generally adds the method to the scope of accreditation.
Mr Batty said that most methods are specifically accredited by NATA. While the ultimate aim of a laboratory is to have all of its methods accredited, there may be some methods that are not accredited that the laboratory is still entitled to use based on the fact that they have been validated and are scientifically fit for purpose.
A non-accredited method may be used where the laboratory has not had the opportunity to have the method accredited by NATA. Accreditation is an exhaustive process, and can take quite a period of time.
In 2014, both ChemCentre and HKJCL were accredited racing laboratories. ChemCentre had an accredited method for testing for cobalt in urine.
Mr Batty explained that in early 2014, no laboratory in the world had an accredited method of testing for cobalt in equine urine. Many laboratories had accreditation for urine. An accredited laboratory would have to use an accredited method relating to urine to test equine urine. The only accredited methods were in relation to human urine.
In 2014 when RASL chose to send the samples to ChemCentre, it had an accredited method in urine, and was going to look at the validity of the same method for equine urine. ChemCentre would ultimately confirm whether the method was appropriate. Mr Batty explained that part of the validation was to confirm whether the method would deal with the viscosity of equine urine as opposed to human urine. It was found that viscosity was not a problem so the method is essentially the same.

[263]

The definition of Official Racing Laboratory in the Rules of Racing contains two requirements for an analytical racing laboratory to be classified as an Official Racing Laboratory:
- (1) The racing laboratory must be NATA accredited or accredited by a similar authority in an overseas country; and
- (2) it must be approved by the Australian Racing Board and published in the Racing Calendar.
There is no doubt that ChemCentre and HKJCL satisfy both requirements, and did so at the relevant times.
However, O'Brien and Kavanagh submit that it is necessary for RVL to go further and show that the method adopted by a racing laboratory to conduct the analysis is a method accredited by NATA as part of the scope of accreditation of the racing laboratory.
I reject this submission. First, the definition of Official Racing Laboratory is clear and unambiguous. There is nothing in the definition that says any more is necessary than proof of the two requirements stated in the definition.
Second, the definition of Official Racing Laboratory in AR 1 uses the word 'means' prior to the content of the definition. The conventional understanding of the use of the word 'means', as opposed to 'includes', is that such a definition is intended to be exhaustive.[121] There is no reference to scope of accreditation in the definition.
Third, the fact that a particular method used by a racing laboratory does not appear as such in the NATA scope of accreditation does not mean that the laboratory cannot employ that method. As Dr Vine and Dr Stewart made clear, there is considerable room for interpretation of the NATA approved scope of accreditation. Laboratories are able to modify existing methods and still remain within the scope of accreditation provided that the modification is not a major departure from an existing method. The methods used by laboratories do not have to be specifically numbered or individually approved by NATA. Thus, modification of an accredited method of urine analysis to alter dilution so as to be able to analyse equine urine is considered within the scope of the accredited method.
Fourth, as Dr Vine made clear, racing laboratories are able to apply methods of analysis not within their scope of accreditation provided that they are fit for purpose and scientifically accurate. Recognition of a scientific method of analysis for inclusion within the scope of accreditation may add to the recognition and reliability of the test result because the method has been technically assessed by an expert NATA assessor, but this does not mean that the laboratory is precluded from using a method which it is satisfied is fit for purpose and scientifically valid. Insofar as Mr Russo expressed a different view, I prefer the evidence of Dr Vine who has personally acted as a NATA assessor over the years.
Finally, an interpretation that requires the stewards and the RAD Board to have to review the scope of methods accredited within the scope of accreditation of a laboratory would lead to a high level of complication and complexity in racing matters. Sophisticated expert evidence would often be necessary. I conclude that this was never intended when the Rules of Racing were drafted and approved. An interpretation of the definition of Official Racing Laboratory which had such a consequence should not be preferred.
For these reasons, I find that ChemCentre and HKJCL were Official Racing Laboratories under the Rules of Racing at all relevant times. It follows that the samples taken from the O'Brien horses and Magicool were analysed only by an Official Racing Laboratory for the purposes of AR 178D(1).

[281]

Mr Batty said that initially, RVL selected sample numbers which were to be sent to ChemCentre. Those samples were sent intact for routine analysis for all prohibited substances including cobalt by ChemCentre. Later, after discussions with representatives of RVL, the new procedure was adopted.
In terms of reporting the results, Mr Batty said that it is not RASL's practice to report routine numerical screening results which exceed established threshold levels to racing clients. Positive results are only reported after confirmatory analysis. In this instance, batch reports of the screening results received from ChemCentre were sent by RASL to RVL, which was then notified that a further portion of the sample would be sent to ChemCentre for confirmatory analysis. Confirmatory analysis is more rigorous than initial screening and ordinarily involves quadruplicate tests of both the sample and a cobalt spiked urine sample at the threshold of 200µg/L. By comparison, initial screening is likely to be conducted as a single test.
ChemCentre was accredited to test for cobalt in urine in April 2008. Equine urine was specifically added to its NATA accreditation on 26 November 2014. The typical timeframe for provision of a confirmatory analysis was between two and four weeks. ChemCentre provided a certificate of analysis in relation to the confirmatory test. If the confirmatory analysis confirmed the presence of cobalt above the threshold, Mr Batty notified RVL and arranged for the reserve unit sample and control sample (ie the whole sample) to be sent to the Hong Kong Jockey Club Racing Laboratory for a referee analysis. Results of the confirmatory analysis of the reserve urine and control samples were provided by HKJCL within two to three weeks.
Mr Ashby was employed by RVL as a Stipendiary Steward in 1994. From 2008 to October 2015, he was a Senior Stipendiary Steward and the Manager, Steward Compliance and Regulation.
Mr Ashby described the new testing procedure adopted by the stewards following the adoption of LR 68A. The new procedure was necessary because RASL was unable to test for cobalt. The new procedure entailed:

[291]

Mr Ashby was asked whether the procedure adopted by the stewards to test urine samples complied with AR 178D. He said that it was open to RVL to conduct its affairs in the agreed process that it did, but that AR 178D was not covered in its entirety.
He said that this had occurred because RASL wanted to retain custody of the samples. While RVL's opinion was that the samples should go direct to ChemCentre, RASL got its way. Mr Ashby said that he challenged the position on many occasions throughout this process.
As RASL could not test for cobalt, Mr Ashby's recommendation to his seniors at RVL was that full packaged samples should go direct to ChemCentre. He said that he strongly voiced his opinion, which was also the opinion of others, and robust discussion took place.
Mr Ashby said that he knew that the Rules of Racing were being breached, but that it was an agreed decision, based on discussion with the relevant parties including RASL.
Mr Ashby agreed that there was no discretion given to the stewards as to whether AR 178D applied to them or not.
He agreed that what must occur under AR 178D(2)(b) is that the official racing laboratory which detected the prohibited substance nominates another official racing laboratory and refer the reserve portion of the same sample to it. ChemCentre did not nominate HKJCL or refer the reserve portion of the sample to HKJCL.
ChemCentre did not notify their findings to the stewards under AR 178D(2)(a). They advised their findings to RASL, which was acting as an agent for RVL. ChemCentre did not nominate another official racing laboratory or give control of the sample to HKJCL. He agreed that the point of the protection in the system was that there was continuity between the first and second official racing laboratories.
Mr Ashby said that the only part of AR 178D(2) that was complied with was that ChemCentre told RASL the result. Initially, Mr Ashby considered that AR 178D(1), (2) and (3) applied, rather than those provisions followed by AR 178D(4) and (5). In later questions he agreed that on the basis that RASL could not test for cobalt or arsenic, AR 178D(4) was engaged.
Mr Ashby agreed that certified findings of both official racing laboratories were required under AR 178D(3), before there was prima facie evidence that a prohibited substance had been detected for the purpose of the Rules of Racing.

[306]

In terms of contractual analysis, AR 178D(1), (2), (4) and (5) have all the hallmarks of stipulations that are conditions subsequent to the exercise of the power given in AR 8(j).[131] AR 178D expressly refers to samples taken 'in pursuance of' the exercise of the specified powers. While AR 178D(4) is facilitative, AR 178D(1), (2), and (5) all use mandatory language including words like 'shall', 'only' and 'is to'. There is a clear intent that these provisions are to be adhered to when samples taken under AR 8(j) are analysed and certified.
AR 178D sets out the protocol for sample testing and certification to be adopted by the stewards and racing laboratories alike when samples taken under AR 8(j) are to be analysed. AR 178D(1), (2), (4) and (5) are not only conditions subsequent. They are conditions the performance of which is in the hands of the stewards alone, assisted by racing laboratories.
The role of AR 178D(3), and (6) is different. They are certification provisions which would permit the stewards, on showing compliance with the necessary preconditions, to produce certificates of analysis as evidence of the detection of a prohibited substance in a sample taken from a horse. Certificates of analysis are prima facie evidence but are not conclusive. Evidence can be called which would have the effect of bolstering or diminishing the weight that might be given to a certificate. Such evidence might be called by the stewards to show that it was highly likely that the certificates of analysis were accurate or to show that the certificates of analysis were unreliable, and did not provide the necessary level of satisfaction that the samples analysed exceeded the threshold level for a prohibited substance.
Non-compliance by a party to a contract with a condition subsequent is ordinarily treated as a serious matter particularly if compliance with the condition is solely within the control of one party to the contract alone. Thus a contract might be rendered voidable or a power might be taken as not validly or effectively exercised.[132]

At a glance

Court

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Before

Source

Judgment (503 paragraphs)

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Legislation Cited (3)

Cases Cited (41)

Kavanagh v Racing Victoria Limited (Review and Regulation) [2017] VCAT 386 (17 March 2017)