Laming v Racing Victoria Limited [2011] VCAT 112 | Case summary

Section 83OH(1) of the Racing Act 1958 provides that a person whose interests are affected by a decision made by the Racing Appeals and Disciplinary Board may apply to this Tribunal for review of that decision.
Mr Richard John Laming is a person affected by a decision made by the Board on the 11 November 2010 and his application seeking to review the decision was made on the 18 November 2010, well within the prescribed time limit. The Applicant's reasons as stated in the application are that the penalty concerning charges 4 to 6 of three years disqualification and the fine of $2,000 in respect of charge 10 is excessive, harsh and oppressive in the circumstances. In the interim, notification was given on behalf of the Applicant that the review sought in relation to charge 10 would be abandoned and I granted leave to the Applicant this day to withdraw the review sought in relation to that particular charge.
As this Tribunal stated in earlier matters including the matter of Mr Neville Clements as well as that of Mr Corstens this Tribunal's functions in reviewing a decision of the board are not appellant. On review the Tribunal stands in the shoes of the original decision maker and must determine the correct decision on the material before it. The review is conducted without any presumption as to the correctness or otherwise of the decision the subject of review and the Tribunal is not confined to the material upon which the original decision is made and may receive and taken into account evidence or material which was not before the original decision maker. I have taken the additional material into account albeit it is of limited scope.
On the 11 November 2010 the board disqualified Mr Richard Laming for a period of three years on each charges 4, 5 and 6 and directed total concurrency. Mr Laming seeks this review of the penalty imposed on the basis that the board

did not impose a punishment based upon the extent to which Mr Laming failed to have in place proper precautions to prevent the administration of DPO to the horses.
Charges 4 to 6 inclusive involved a breach of Australian rule 177B(1) which is couched in the following terms "when a sample taken at any time from a horse being trained by a licensed trainer has detected in it any prohibited substance specified in sub rule (2), the trainer and any other person who was in charge of such horse at the relevant time m ay be punished unless he satisfies the Stewards that he has taken all proper precautions to prevent the administration of such prohibited substance". Sub rule (2) specifies a number of substances which have been prohibited and DPO was one such substance. Charge 4 alleged that DPO was detected in an out of competition blood sample taken from the horse Benelli on the 11 June 2009. Charge 5 alleged that DPO was detected an out of competition blood sample taken from the horse War Dancer also on 11 June 2009 and charge 6 alleged that DPO was detected in an out of competition blood sample taken from the horse Benelli on the 2 July 2009.
The review proceeded on the basis that Mr Hammond QC who appeared with Mr Reilly briefly opened Mr Laming's case for review. Mr Laming was the licensed trainer of the two horses Benelli and War Dancer. Mr Holdenson QC then opened the Respondent's case on review and two witnesses were called to give evidence on behalf of the Respondent, namely Mr Terrence Bailey the chief Steward of Racing Victoria and Dr Cust, veterinarian, an employee of Racing Victoria. Neither witness was cross examined by Mr Hammond. Dr Cust gave evidence which substantially accorded with that given in the hearing before the Board and which appears in the passage contained in the Board's reasons. Mr Hammond then presented submissions on Mr Laming's behalf in documentary form and read those submissions to the Tribunal. No additional evidence was called on Mr Laming's behalf. Finally Mr Holdenson briefly replied to the Applicant's submissions and for the sake of the record Mr Holdenson submitted that the appropriate penalty to be imposed on Mr Laming for breaches of Australian Rule 177B was disqualification for three to five years and in the particular circumstances where he submitted that a five year disqualification was appropriate. Mr Holdenson had made that submission to the Board and he maintained that submission.
Dr Pannam QC who appeared for Mr Laming before the Board submitted and I quote "the appropriate penalty here is somewhere in the area of about six months we would suggest, suspension rather than disqualification". Mr Hammond submitted however that taking into account all of the circumstances in this case the appropriate punishment for each contravention of Rule 178B was a fine and enlarging on that submission he submitted that an appropriate fine would be in the range of $10,000 to $15,000 for each offence making a total penalty of between $30.000 and $45,000.
Having considered all the evidence and the submissions I reject the submission that the Board took into account matters adverse to Mr Laming's interests that amounted to aggravating circumstances which were not proved and also reject the submission that the Board conflated the circumstances of more serious offences with the offences upon which Mr Laming fell to be punished.
The board in its comparatively brief reasons for imposing a period of three years disqualification by way of penalty for each of charges 4, 5 and 6 was, as stated in the reasons, and I quote "mindful of the fact that these are not administration offences". At no stage did the Board in my judgment conflate the circumstances of more serious offences with the offences upon which Mr Laming fell to be punished nor did the Board take into account matters adverse to Mr Laming which were not proved. There was evidence to support the Board's conclusions about DPO and those conclusions are contained in the Board's reasons. There was evidence which justified the Board in accepting that an administration of DPO can produce adverse effects on a horse and it was open to the Board to accept that the adverse effects of DPO may impact upon safety and welfare of horses and riders and there was therefore the potential for a catastrophe to occur particularly during the running of the race.
The detection of any of the prohibited substances specified in Australian Rule 177B(2) in a sample taken from a horse being trained by a licensed trainer is indeed serious and here I regard, as did the Board, the offence seriousness as high. The integrity of the racing industry is an important consideration and public confidence in the industry is critical. Any loss of public confidence in the honesty and integrity of the industry has the potential to imperial the very lifeblood of the industry due to negative publicity throughout the media associated with the detection of any of the specified prohibited substances in this rule.
A Licence to train horses carries with it a consequent responsibility to ensure that the rules of racing are complied with. So far as relevant here a licensed trainer such as Mr Laming was under a duty to take all proper precautions to prevent the administration of any of the prohibited substances specified in Rule 178B(2). There were in my view some curious submissions advanced by Mr Hammond about the lack of reference in submissions from the Stewards as to the penalty or in the Board's decision about the adequacy or otherwise of the precautions which Mr Laming had in place to prevent the administration of DPO for horses. The onus after all was on the Applicant to satisfy the Stewards he had taken all proper precautions to prevent the administration of such prohibited substances and Mr Laming did not seek to prove on the balance of probabilities that he had taken all proper precautions to prevent such an administration. The Board as clearly stated in its reasons was left in the position that there was no explanation for the presence of the prohibited substance in the horse's systems. The precautions were clearly inadequate given that the prescribed substance or prohibited substance DPO was found in the horses' system, in Benelli's deterrence system on two occasions and War Dancer on the one occasion.
In the circumstances I regard general deterrence and denunciation as important considerations in any consideration as to the appropriate penalty in this type of case. These offences are difficult to detect and so far as general deterrence is concerned the message should be heard loudly and clearly by all licensed trainers that they are under a duty to take all proper precautions to prevent the administration of such prohibited substances to horses.
DPO is indeed a serious drug and a number of previous cases were before the Board and before this Tribunal involving DPO. Four such cases came from Canada while two cases involved DPO in the harness racing industry and each of those latter cases was determined by one of my former colleagues Judge Williams of the Racing Appeals Tribunal. While I accept the submission that the matter of Quinlan is the most relevant decision nonetheless those cases are of limited assistance and I bear firmly in mind that each case depends on its own facts and circumstances and note that this is the first case involving DPO in the thoroughbred industry. Just punishment is a very relevant consideration and I have to considered and taken into account Mr Laming's circumstances. They are detailed particularly in paragraphs 74 to 82 on the submissions on his behalf and also in matters contained in an affidavit sworn by Mr Laming and matters put by Dr Pannam at the previous hearing. Mr Laming was previously of good character and I note that he has not re-offended in any matter hereafter. A number of references have been tendered in evidence on his behalf and I have read those references and indeed character evidence was called before the Board. I have taken all those matters into account. I have taken the plea of guilty, late as it was, into account and given it what I regard as appropriate weight in the circumstances and I accept that was the case with the Board. I accept that at the age of 28 most of Mr Laming's working life has been in the racing industry and I have noted the effect that disqualification would have on his immediate future.
I have taken all those matters into account and endeavoured to balance all the considerations and I am satisfied to the required degree that the Board did impose an appropriate penalty for Mr Laming's breach of Rule 177B in each instance and the application therefore will be dismissed and the penalties imposed by the Board will stand and are confirmed.
Parties request written reasons.

Laming v Racing Victoria Limited

At a glance

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Judgment (7 paragraphs)

Laming v Racing Victoria Limited (Occupational and Business Regulation) [2011] VCAT 112 (1 February 2011)

Parties