1. This Tribunal's 19 February 2021 order staying the decision of the Victorian Racing Tribunal (VRT) decision made that day is set aside.
2. Under section 51(2)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act), the VRT's 19 February 2021 decision is varied such that:

(i) The decision to suspend Richard Laming's trainer licence for three months in respect of his breach of Australian Rules of Racing rule 240(2) (AR 240(2)) is affirmed; but

(ii) That suspension is wholly suspended for 12 months subject to no further breaches of AR 240(2).

1. By consent, the VRT's 19 February 2021 decision to fine Richard Laming $1,000 in respect of his breach of Australian Rules of Racing rule 104(1) is affirmed.
2. Under section 51(2)(a) of the VCAT Act, the VRT's 19 February 2021 Decision to disqualify Iam Ekstraordinary from race 1 at Ballarat on 23 May 2018 and for the placings to be amended accordingly is affirmed.

1. On 19 February 2021, the Victorian Racing Tribunal (VRT[1]) issued its penalty decision (Penalty Decision) in respect of charges the stewards laid against licenced trainer Richard Laming. Relevant to the issues before me, the VRT suspended Laming's trainer licence for three months after Iam Ekstraordinary had an excessive reading of cobalt in its system when it raced at Ballarat on 23 May 2018.
2. On the same day as the Penalty Decision was given, Laming applied to the Victorian Civil and Administrative Tribunal (VCAT) for review of the Penalty Decision and applied for a stay. The Penalty Decision was stayed by an order VCAT made on 19 February 2021 (in proceeding Z113/2021).
3. On 19 March 2021, Racing Victoria Limited (RVL) applied to VCAT for review of the Penalty Decision (proceeding Z198/2021).
4. On 17 January 2022, after hearing the review applications, VCAT gave its decision in Laming v Racing Victoria Limited[2] (VCAT Laming).
5. On 19 December 2022, Justice Cavanough of the Supreme Court of Victoria granted leave to appeal VCAT Laming, set aside that decision and remitted these two proceedings to be heard and determined again by VCAT, differently constituted. The orders required that the proceedings proceed with or without the hearing of further evidence, 'in accordance with the law'.
6. The law to be applied is contained in the Racing Act 1958 (Vic) (Racing Act) and in clause 66N of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act and Clause 66N), in light of his Honour's written Judgment published on 28 February (and revised on 28 February and 6 March 2023).[3]
7. The re-hearing proceeded on 30 May 2025 before me with both Laming and RVL represented by counsel. The only new evidence relied on was a 15 May 2024 affidavit sworn by a current employee of Laming's, Daniel James Williams. Williams was not required for cross-examination and I have treated the content of his affidavit as unchallenged evidence.
8. As at the time of the hearing before me, only one aspect of the Penalty Decision was in issue. In respect of a charge concerning the presentation of Iam Ekstraordinary at Ballarat in May 2018, Laming sought the imposition of a fine (of around $7,500 with $5,500 suspended for 12 months) in place of the VRT suspension of three months. RVL sought an order disqualifying Laming for three to six months in place of the VRT suspension.
9. I have decided to make the orders on page 1 of these Reasons after considering the Judgment, VRT's Penalty Decision (and its decision on liability as referred to below), William's evidence and the parties' written and oral submissions.

1. My task is to, under section 83OH of the Racing Act, re-hear the applications for review of VRT's Penalty Decision.[4]
2. Section 83OH of the Racing Act says:

(1) A person whose interests are affected by a decision made by the [VRT] may apply to VCAT for review of that decision in relation to a penalty imposed on the person by the [VRT].

(2) A Steward may apply to VCAT for review of a decision made by the [VRT] in relation to a penalty imposed by the [VRT].

1. Laming's application for review was made under section 83OH(1) and RVL's was made under section 83OH(2).
2. The review is to be undertaken having regard to Clause 66N which says:

Despite section 51 [of the VCAT Act], in determining a proceeding for review of a decision of the [VRT] under section 83OH of the [Racing Act] in relation to a penalty imposed by the [VRT], the Tribunal is bound by the findings of fact that were made by the [VRT].

1. The VRT's role as the maker of findings of fact is established by section 50ZE(1) of the Racing Act which says:

(1) In the determination of any matter before the [VRT], the [VRT] may -

(a) decide all questions of fact; and

(b) make any decision or order that the [VRT] considers is required in the interests of justice, including the imposition of any penalty under the rules.

1. Justice Cavanough referred specifically to section 50ZF of the Racing Act,[5] a new provision[6] which is consistent with obligations under sections 45 to 47 of the VCAT Act concerning the provision and content of reasons for reviewable decision. Section 50ZF requires the VRT to provide a written statement of reasons for determination on request and at sub-section (4) says:

A written statement of reasons must set out -

(a) the reasons for the [VRT's] determination; and

(b) the [VRT's] findings on material questions of fact that led to the determination, referring to the evidence or other material on which those findings were based.

1. In broad terms, his Honour found that in VCAT Laming, VCAT erred by undertaking its own consideration and assessment of the facts instead of proceeding on the basis that it was bound by the VRT's findings of fact.
2. The Judgment described VCAT's role and its decision making in the following ways which also indicate the relevant errors of law made in VCAT Laming:[7]

Plainly, Parliament intended that VCAT's jurisdiction in racing disciplinary cases is now to be a strictly limited one; and that, so far as fact-finding in the course of exercising that jurisdiction is concerned, any role for VCAT is subject to that of the highly qualified, independent, powerful, expert tribunal established by the RAIDS Act,[8] namely the VRT.

. . .

Further, it seems to me that, subject to any applicable principles of administrative law, the VRT is to have an exclusive role, and the final say, not only in relation to identifying those alleged facts of which it is or is not comfortably satisfied, but also in relation to the question whether any alleged fact or set of facts is worth investigating or considering at all. In my view, subject to any issue of legal unreasonableness or the like, it may be open to the VRT in a particular case to determine that an allegation, or set of allegations, made by either RVL or the accused person is not sufficiently relevant or significant to warrant investigation or consideration. Again, for reasons similar to those expressed above, I consider that such a determination would be protected by [Clause 66N].

. . .

If VCAT fails to recognise that it must keep away from the area covered by the findings of fact already made by the VRT, and if VCAT proceeds to embark on an examination of the evidentiary material underlying the factual findings made by the VRT, or if, for that matter, VCAT purports to admit in evidence and examine fresh material going to the matters on which the VRT has already made findings of fact, then VCAT plainly errs in law.

. . .

VCAT should treat the relevant findings of fact made by the VRT as a fixed starting point and framework for VCAT's remaining deliberations on penalty.

. . .

VCAT did not appropriately recognise that it was bound by the findings of fact made by the VRT . . . [his Honour's discussion of VCAT Laming's reasons confirmed] that VCAT failed to recognise that it was bound by the VRT's findings of fact; that VCAT wrongly proceeded to make factual findings of its own; that this worked to the disadvantage of [Laming]; that (if it matters) there was at least some direct inconsistency of fact finding;

. . .

Here, VCAT is continuing to paint its own picture of the circumstances of the offences, in its own words, not in the VRT's words.

Of course, VCAT should have been accepting and applying the findings made by the VRT, not examining them;

1. The following conclusions drawn by his Honour are particularly relevant to my task on the re-hearing:[9]

(a) [Clause 66N] protects more than just 'positive' findings of fact; VCAT is bound by all of the facts found by the VRT; and for the purposes of [Clause 66N], the VRT's findings of fact include any decisions by it as to how particular allegations of fact should be dealt with;

(b) at the very least, VCAT must not make its own findings of fact on matters already covered by the VRT's findings of fact; if VCAT does so, VCAT will err in law, whether or not there is any 'inconsistency' between 'positive' findings of fact;

(c) in any event, there were real and significant inconsistencies in the present case;

(d) VCAT did not appreciate that it was bound by the VRT's findings of fact at all; alternatively VCAT did not appreciate that it was bound by the VRT's findings of fact contained in its decision of 7 October 2020;

(e) VCAT's error of law was material in the various ways mentioned above; in short, VCAT's decision might have been different in the absence of the error of law;

(f) there is no basis for denying [Laming] relief on discretionary grounds; RVL was mainly responsible for VCAT's error of law.

1. I now turn to the VRT's decision and, importantly, its findings of fact relevant to the review applications.

1. The following summary is drawn from that contained in the Judgment and the VRT's reasons for its decisions.[10]
2. On 20 December 2019, RVL's stewards laid three charges against Laming in the VRT, each alleging a 'serious offence' in breach of the Rules of Racing of RVL.
3. Each charge related, directly or indirectly, to the fact that Iam Ekstraordinary was found to have an above-threshold level of a prohibited substance, cobalt, in its system when it ran in a race at Ballarat on 23 May 2018.
4. The main question was: how had that happened?
5. RVL's stewards had commenced their inquiry into the matter, in June 2018. Over the ensuing period they had conducted interviews (in some cases more than one interview) with Laming, his stable foreman Marnu Potgeiter and his then stable hand, Amy Mercer. The stewards had also obtained reports from relevant experts. At that stage, Laming's position was, in general terms, that there was no known explanation for the elevated cobalt reading.

1. The charges that were laid against Laming in December 2019 and his pleas are as follows:

(a) Charge 1 was, in substance, a charge that, contrary to rule 245 of the Rules of Racing (AR 245), Laming had administered, or caused to be administered, a prohibited substance, namely cobalt, to Iam Ekstraordinary and that cobalt in excess of the prescribed maximum had been detected in a sample taken from the horse prior to the running of the race at Ballarat on 23 May 2018. While Laming accepted that excess cobalt had been detected in the sample taken from Iam Ekstraordinary on the day in question, he pleaded not guilty to this charge. I refer to Charge 1 as the 'Administration Charge';

(b) Charge 2 was laid as an alternative to Charge 1. In substance, it alleged that, contrary to rule 240(2) of the Rules of Racing (AR 240(2)), which creates a 'strict liability' type offence, Laming had presented Iam Ekstraordinary at the race meeting on 23 May 2018 with a prohibited substance (namely cobalt in excess of the prescribed maximum) in its system. Laming pleaded guilty to this charge. I refer to Charge 2 as the 'Presentation Charge'; and

(c) Charge 3 was a related charge. It alleged that, in contravention of rule 104(1) of the Rules of Racing (AR 104(1)), Laming had failed to record treatments that had been administered to Iam Ekstraordinary in May 2018. Laming pleaded guilty to this charge. I refer to Charge 3 as the 'Record Keeping Charge'.

1. By agreement, the VRT was to hear and determine the Administration Charge before dealing with the Presentation and Record Keeping Charges.
2. It is convenient to record now that, at the commencement of RVL's oral submissions before me, it advised that RVL no longer challenged the penalty in respect of the Record Keeping Charge and so I have affirmed that part of VRT's decision as well as the decision to disqualify Iam Ekstraordinary (and amend the placings accordingly) from race 1 at Ballarat on 23 May 2018.

The VRT's 7 October 2020 decision on the Administration Charge

1. Consistent with Cavanough J's recommendation[11] and in order to contextualise the findings of fact made by the VRT which are relevant to the penalty issue before me, I quote below the majority of the reasons contained in the VRT's decision given on 7 October 2020 as to the Administration Charge (Liability Decision), starting with the background:

1. General background

[Laming], a licensed trainer, has been charged with three offences. The charges arise out of the running of Iam Ekstraordinary at Ballarat on 23 May 2018. He is pleading 'Not Guilty' to a breach of AR 245. He is pleading 'Guilty' to breaches of [AR 240(2)] and AR 104(1).

In this judgement, we will be dealing with [the contested Administration Charge]. The penalties in relation to the other charges will be dealt with at a hearing on a date to be fixed.

Pursuant to Section 50X of the [Racing Act], questions of law have been determined by the Chairperson [Judge John Bowman]. However, invaluable assistance has been provided by Deputy Chairperson, His Honour Judge Hicks, and by Member, Mr Des Gleeson. Whilst the word 'we' is used throughout this Decision, the ultimate responsibility for answering questions of law or mixed fact and law rests with the Chairperson.

2. The dispute

The dispute in relation to the contested charge could be summarised as follows.

The [Administration Charge] relates to the detection of a prohibited substance - in this case, cobalt - which was found in a pre-race urine sample. A person must not administer, or cause to be administered, cobalt to a horse which is detected in a sample taken from the horse prior to or following the running of a race.

In this particular case, there is no argument concerning the sampling or testing procedures. As stated, cobalt is a prohibited substance. Whether or not it should be is not for [the VRT] to determine.

The key arguments concern the meaning of 'administer or cause to administer' as used in AR 245, and particularly, given the evidence in this case, of 'cause to administer'.

Mr Hooper, who appeared on behalf of the Stewards, submitted that the word 'cause' in AR 245 incorporates a sliding scale of knowledge that includes negligence or carelessness.

Mr Sheales who appeared on behalf of [Laming], submitted that it did not.

As we note later in this judgement, there is a specific rule relating to negligence - see Rule AR 16(b)(iii). [Laming] was not charged with a breach of this rule.

What do the words 'cause to administer' mean? For instance, do those words embrace a failure to supervise staff properly or at all, as asserted by the Stewards? Do they include a failure to keep any relevant records covering the period of the offence? In broad terms, can the situation of a trainer effectively doing nothing, leaving to the staff the administering of substances and not even realising that no records were being kept for the relevant period, constitute administering or causing to be administered? To what extent can a trainer pass on responsibility to staff for the purposes of [AR 245]?

Such issues seem to us to be at the heart of this aspect of the contest.

3. The findings of fact

We make the following findings of fact.

At the relevant time, [Laming] conducted two training establishments. These matters arose at Clyde. [Potgieter] was his licensed assistant trainer, or foreman. [Mercer] was a licensed stable hand employed by [Laming]. She had been so employed for four or five years at the relevant time, and indeed was so employed before the arrival of [Potgieter]. Her duties included the administration of injections and the written recording of these.

Iam Ekstraordinary was to run at Ballarat on Wednesday, 23 May 2018. Approximately three months earlier, the stable had been involved with the Stewards in relation to the use of a nebuliser on a horse on race day. Thus, [Laming, Potgieter and Mercer] should have been on full alert as to the importance of ensuring that treatment was not given immediately before or on race day.

Approximately one week before the commencement of this hearing the Stewards reinterviewed [Mercer]. As a result, the Stewards accepted that [Mercer] had made an honest mistake in injecting the horse with cobalt on race day.

We say now that we are quite satisfied that, in the present case, cobalt was administered on Wednesday 23 May 2018 by means of a vitamin injection, albeit one given in error. Associated with that error was a virtually complete absence of records at that time and the lack of any adequate means of indicating which horse or horses were to race on a particular day. Nothing seems to have been learned from the nebuliser incident three months previously. Further, neither [Laming] nor his foreman, [Potgieter], were present at the Clyde stables prior to Iam Ekstraordinary being removed from the stables, put in the float and taken to Ballarat races on the day in question. Neither attended at Ballarat. When interviewed by the Stewards almost four weeks later, [Laming] did not even seem to realise that no relevant records had been kept for about six weeks.

[Mercer] gave evidence that she could not rule out the possibility that she had given Iam Ekstraordinary a vitamin injection on the morning of 23 May 2018 at some time before the horse was placed in the float and taken to Ballarat. She had some computer problems which she said explained the lack of any records. Ultimately there was no challenge to the proposition that the positive reading probably emanated from a vitamin injection erroneously administered by [Mercer] on the morning of 23 May 2018 and, as stated, we accept this.

We also find that on that morning neither [Laming] nor his foreman was present; that the computer programme in relation to the administration of substances and the like was not working and had not for some time; that there was a totally inadequate system, if you could call it that, in relation to indicating which horses were about to race and when; and, given the contents of his interview of 20 June 2018 and his evidence, there was a high degree of ignorance on the part of [Laming] as to the particulars of what was going on in his stables.

We also find that, early in her employment with [Laming] and even before the arrival of [Potgeiter] as foreman, [Mercer] had been instructed by [Laming] not to administer injections on race days. She remained aware of this. She was familiar with the injection process and, over the years, had administered thousands of injections.

1. In these Reasons, I refer to the earlier incident described by the VRT as the Nebuliser Incident.
2. Then followed a discussion of the legal arguments made by the parties and the VRT gave its ruling on whether the facts as found were sufficient to satisfy the requirements of AR 245 such that Laming could be found to have administered the cobalt. VRT was not comfortably satisfied that the Administration Charge had been proven.
3. In the Judgment, Cavanough J recorded that the Ruling section of VRT's reasons 'included observations that reflected findings of fact that had already been expressed by the VRT, together with observations that amounted to additional, related findings of fact' and his Honour quoted the following from the VRT's reasons:[12]

We say at the outset that we consider the stable practices of [Laming] to be careless, inadequate and marked by indifference as to what was happening. The term employed by Mr Hooper - "shambolic" - is appropriate.

However, the issue is whether that is sufficient to satisfy the requirements of AR 245, particularly in light of the observations of McLeish JA and Cavanough AJA in Kavanagh.

. . .

That [Mercer] knew that there was to be no administration to a horse on a day that it was racing seems beyond dispute. We accept that she had been instructed by [Laming] concerning this early in her employment, if not virtually at the outset. In her initial interview on 20 June 2018 she stated that there was 'no way' she would have treated a horse on race day and '. . . I just make sure that I do the clear day . . . If it's too close to race day, I just don't do it.'

Whilst [Mercer's] perception of her authority might be useful, it does not necessarily answer the important question of the authority in fact invested in her. In his evidence before the Tribunal, [Laming] stated that he had no direct contact with [Mercer]. He did not speak to her about treatments. He did not check back with [Potgieter]. He did not check the treatment diary. [Laming] gave [Potgieter] open licence. He was aware that [Potgieter] delegated work to [Mercer]. He did not engage in active supervision of them and had confidence in their abilities. [Laming] knew that [Potgieter] would be absent on the Wednesday in question and that he left instructions when he was not at work.

In this regard, [Mercer] told the Tribunal that [Laming] originally gave her instructions and [Potgieter] instructed her to perform them. She gave the injections for [Laming] and it was something that she could do 'with her eyes closed'. She gave approximately five thousand injections per annum and had been doing that for four or five years at the relevant time. She dealt with [Potgieter] in relation to treatments, but not with [Laming].

[Potgieter] did not give evidence, but the transcript of his interviews with Stewards was placed before us. In his first interview of 20 June 2018, he stated that he did not normally work on a Wednesday and was not at work on Wednesday 23 May 2018. He and [Mercer] were 'mainly' responsible for the treatments to the horses and 'mainly' under the guidance of [Laming]. It was only himself, [Mercer] or [Laming] who would treat the horses. Injections would only be given by 'the main staff' - the three people just mentioned. [Laming] would not know whether vitamin injections had been administered or not. He would not know on which day. He is not on the list of people who have access to the record of vitamin administrations - 'If he wants to know something, he will just ask us.' [Mercer] is supposed to record administrations.

By the time of [Potgieter's] second interview one day later on 21 June 2018, [Mercer] had apparently reconstructed from memory the relevant missing diary entries in relation to weekly injections. These included injections to Iam Ekstraordinary on Monday 21 May 2018. For the month of May there still seemed to be two missing weeks. The injections are given on random days 'whenever we've got some spare time'. It was pointed out to [Potgieter] that, if the relevant injections had been given on the Monday, two days before the race day testing, the test would not have shown the positive return which it did.

We've gone into the interviews with [Potgieter] at some length because they give some idea of the haphazard 'random' regime of injection giving that existed and the apparent absence of any direct control or intervention provided by [Laming]. This is consistent with his absence of anything like adequate knowledge of what was occurring in his stables, particularly as demonstrated in his original interview, not that his level of knowledge seemed to improve greatly thereafter.

The question which we have to decide is whether this shoddy and careless way of running stables constitutes a breach of AR 245. Has the requirement of the words 'caused to be administered' been satisfied?

We are satisfied that [Laming] invested authority in [Mercer] to administer injections and that he instructed her not to administer such injections on race day. This occurred at the time of, or shortly after, the commencement of her employment. She understood it. Thereafter, he effectively left her to her own devices, and she administered thousands of injections over the years. This occurred before and after the arrival of [Potgieter].

1. His Honour noted that the VRT then made certain legal points relating to the way in which AR 245 might be interpreted and applied in Laming's circumstances.[13] The VRT said:

In the present case, there is no suggestion that [Laming] authorised [Mercer] to administer the injection on race day. There is no suggestion that he exerted a capacity of control or influence in order to direct [Mercer] so to do. There is no suggestion that he intended, contemplated or desired that any such authority or direction, if it existed, would be acted upon. The evidence is to the contrary. However dated it may have been, any general direction given to [Mercer] was not to administer injections on race day. As for the particular injection on 23 May 2018 (race day), there is no suggestion that [Laming] even knew of the injection being administered, much less authorising or exerting a capacity of control or influence so as to direct [Mercer] so to do. Explicitly and by inference, [Mercer] had been vested with authority to administer injections, but specifically not on race days.

...

What occurred in the present case was a clear instruction as to non administration on race day. There is no suggestion that [Mercer] did not understand or appreciate this. The contrary is quite clear. What seems to have occurred is a wilful administration, but one performed accidentally on a race day. That seems to us to fall within the exclusion referred to by McLeish JA.

1. On 19 February 2021, the VRT gave the Penalty Decision. After setting out the three Charges, its reasons said as follows:

DECISION - CHARGES 2 and 3

[Laming], you have pleaded 'guilty' to a breach of [AR 240(2)], which could be described as a presentation charge. It relates to the horse Iam Ekstraordinary, which was trained by you and which ran in a 1200 metre race at Ballarat on 23 May 2018. A pre-race urine sample taken from the horse proved positive to cobalt in excess of the prescribed limit. We have already dealt with the particulars relating to the administration charge in considerable detail in our decision of 7 October 2020, in which you were found not guilty of administration. We shall not go through those details again.

You are also pleading guilty to a breach of AR 104(1). This, in essence, relates to your failure to keep adequate treatment records.

Dealing first with the breach of [AR 240(2)], we would refer to our observations concerning your stable practices. We would repeat that they were careless, inadequate and displayed indifference. They have been rightly described as 'shambolic'. Of course, you are not to be penalised for an offence (negligence) with which you have not been charged. However, the circumstances surrounding this charge are relevant. There was a real lack of checks and balances in your system. This includes your lack of record keeping, to which we shall return.

The above matters place your breach of [AR 240(2)] in a realistic contextual setting. This is not a situation of one slip made in otherwise a well-run carefully operated stable.

You have pleaded guilty, and that is a fact in your favour which we take into account. In relation to your personal situation, you are aged 38 years. You have been a licensed trainer for most of your adult life. You do not have an unblemished record. You already have had a substantial disqualification, namely three years, in relation to a prohibited substance (EPO[14]). That was imposed in November 2010. You also received a two month suspension in September 2018.

Accordingly, you are entitled to little or no discount in relation to your record. Principles of both specific and general deterrence apply in relation to penalty. Rules such as [AR 240(2)] are made for good purpose. Horses demonstrated to be presenting with a prohibited substance in their systems are bad for the image of racing. They damage the important perception of a level playing field. That is bad enough in the best of circumstances. When it is contributed to by careless and slipshod stable practices, it warrants the imposition of an appropriate penalty.

In our opinion, that penalty should be one of suspension for three months. In addition Iam Ekstraordinary is disqualified from Race 1 at Ballarat on 23 [May] 2018 and the placings amended accordingly.

We turn now to the breach of AR1 104(1). The keeping of proper stable records is most important. It assists the Stewards in the performance of their duty. In the present case, the failure so to do was particularly pronounced.

In this regard, the penalty is a fine of $1,000.

The facts relevant to the penalty for the Presentation Charge

The Judgment and VRT's findings on the circumstances surrounding the Charges

1. In the Judgment, Cavanough J referred to the parties' submissions relevant to the strict liability nature of the Presentation Charge and said as follows:[15]

. . . [Laming] also submitted to VCAT that it was not bound by findings of the VRT that were irrelevant to the offence charged; and that all or most of the VRT's findings about 'shambolic' practices at his stables and about related matters were in fact irrelevant to VCAT's task in assessing penalty on [the Presentation and Record Keeping Charges]. However, in my view, the VRT's findings of fact on those matters were relevant to the task at hand, and plainly so, notwithstanding that the offence the subject of [the Presentation Charge] was of the 'strict liability' kind. Both in the criminal law and in the field of professional discipline, the particular circumstances surrounding the commission of a 'strict liability'- type offence will frequently be relevant to penalty. Contrary to the submissions made by [Laming] to VCAT (and made also, for a time, to this Court), the case of Currie v Queensland Racing Integrity Commission was rightly decided in this regard. In the present case, it would have been entirely appropriate - indeed it was mandatory - for VCAT to take into account the VRT's findings of fact about the circumstances surrounding the offences. [Laming's] submissions to the contrary were wrong and may have compounded the distracting effect of RVL's submissions on the facts and the evidence.

It is true that, in his written submission, in addition to his erroneous principal contention at VCAT (to the effect that the circumstances surrounding the offences were irrelevant), [Laming] himself sought to rely on certain asserted facts that were not covered by the findings of fact made by the VRT. In particular, [Laming] submitted that the vitamin regime 'was a health and wellbeing regime that was being undertaken upon the advice of extremely experienced equine vet Dr Tim Roberts'; that 'the products administered pursuant to the vitamin regime were wholly supplied by Dr Tim Roberts'; that all horses received vitamins in accord with the vitamin regime; and that [Laming] 'was in the process of putting in a new computer system that would enable access by app on smart phones to all staff'. However, these were relatively minor submissions; and they are either not reflected, or are only faintly reflected, in what was later said by VCAT in its reasons ...

While [Laming's] submissions to VCAT about asserted irrelevance would have induced VCAT to go astray had VCAT accepted them, the fact is that VCAT did not accept them. VCAT's actual (legal) error (as I have identified it) is traceable to the submissions made to it by RVL to a far greater extent than it is traceable to the submissions made to it by [Laming].

The parties' submissions in the re-hearing on the relevant facts

1. RVL's Written Submissions[16] included an annexure which sought to identify the findings of fact VRT made, with cross-references to VRT's reasons and to the Judgment. I have attached a complete copy of the annexure as Attachment A to these Reasons. RVL placed particular reliance on rows 4, 6, 7, 8, 9, 12, 13, 15, 19 and 26.
2. Laming's Written Submissions dated 12 June 2024,[17] identified a list of facts he submitted were relevant to the imposition of a penalty in respect of the Presentation Charge[18] and three facts which were said to be 'irrelevant', namely:

(a) Any VRT finding of shambolic practices or the like etc;

(b) [Laming's] breach of AR 104(1); [and]

(c) [Laming's] prior matters.

1. I reject the submission that none of those matters are relevant given Cavanough J's comments at [34] above. I accept that the Record Keeping Charge was required to be dealt with separately, but also proceed on the basis that the VRT found the lack of records was of itself relevant to the Presentation Charge given that Mercer administered the injection not knowing Iam Ekstraordinary was racing that day.
2. Related to another Laming submission, at the hearing, I confirmed I understood that the penalty to be imposed in respect of the Presentation Charge could not assume or proceed on the basis that the intention required for the Administration Charge had been proven.[19]

1. Having regard to the VRT's Liability and Penalty Decisions, the Judgment and my review of the facts relied on by both parties, I have identified the findings of fact which are relevant to my task in the below table.
2. In doing so I have included some additional facts from RVL's annexure as necessary to provide context and have excluded items which were not included in VRT's findings of fact. I have excluded those of Laming's submissions which Cavanough J found were 'wrong'.
3. I have adopted RVL's numbering for consistency with Attachment A and have included additional findings identified by Laming (using 'A' to 'C'). I have used names and terms as previously defined in these Reasons.

As at 2020, Laming was 38 years old and had been a licensed trainer for most of his adult life. He was the trainer of Iam Ekstraordinary in May 2018.

A prohibited substance, being cobalt at a mass concentration in excess of 100 micrograms per litre in urine, was detected in a pre-race urine sample taken from Iam Ekstraordinary prior to the race on 23 May 2018.

Approximately three months before the Horse was to run at Ballarat, the stable had been involved with the Stewards in relation to the Nebuliser Incident. Thus, Laming, Potgieter and Mercer should have been on full alert as to the importance of ensuring that treatment was not given immediately before or on race day.

Cobalt was administered on Wednesday 23 May 2018 by means of a vitamin injection, albeit one given in error by Mercer who was extremely experienced and proficient in the administration of substances by injection.

Associated with that error (the administration of cobalt) was a virtually complete absence of records at the time and the lack of any adequate means of indicating which horse or horses were to race on a particular day.

Nothing seemed to have been learned from the Nebuliser Incident three months previously.

Neither Laming, nor his foreman, Potgieter, were present at the Clyde stables prior to the Horse being removed from the stables, put in the float and taken to Ballarat races on the day in question. Neither attended at Ballarat. When interviewed by the Stewards almost four weeks later, Laming did not even seem to realise that no relevant records had been kept for about six weeks.

There was a totally inadequate system, if it could be called that, in relation to indicating which horses were about to race and when.

Given the contents of his interview on 20 June 2018 and his evidence, there was a high degree of ignorance on the part of Laming as to the particulars of what was going on in his stables.

The stable practices of Laming were careless, inadequate and marked by indifference as to what was happening. The term 'shambolic' is appropriate.

In his evidence before the VRT, Laming stated that he had no direct contact with Mercer. He did not speak to her about treatments. He did not check back with Potgieter. He did not check the treatment diary. Laming gave Potgieter open licence. He was aware that Potgieter delegated work to Mercer. He did not engage in active supervision of them and had confidence in their abilities. Laming knew that Potgieter would be absent on the Wednesday in question and that he left instructions when he was not at work.

The interviews with Potgieter give some idea of the haphazard 'random' regime of injection giving that existed and the apparent absence of any direct control or intervention provided by Laming. This is consistent with his absence of anything like adequate knowledge of what was occurring in his stables, particularly as demonstrated in his original interview, not that his level of knowledge seemed to improve greatly thereafter.

This way of running stables was shoddy and careless.

This is not a situation of one slip made in otherwise a well-run carefully operated stable.

The High Court's decision in Australian Building and Construction Commission v Pattinson

1. In the Judgment, Cavanough J referred to the fact the High Court's decision in Australian Building and Construction Commission v Pattinson[20] (Pattinson) was handed down after VCAT Laming was decided.[21] He stated that the parties had filed 'extensive' pre-trial written submissions as to whether or to what extent Pattinson might bear on the proper approach to assessing penalties in racing disciplinary cases. He explained that 'question became irrelevant' to his review of VCAT Laming once Laming 'dropped all of his points and arguments except the one that I have upheld'.[22]
2. Both RVL's and Laming's Written Submissions referred to the question foreshadowed above (Laming's in lengthier terms).[23]
3. At the hearing, I asked the parties whether it was necessary for me to have regard to submissions regarding Pattison or whether it was accepted that the principles on the imposition of penalties as set out by Garde J (in his then capacity as VCAT President) in Kavanagh v Racing Victoria Limited (No 2)[24] (Kavanagh No 2) ought to be applied. They agreed with the latter approach, including because Pattinson emphasised the role of general deterrence when imposing monetary civil penalties and Kavanagh No 2 included general deterrence as one of the factors to be assessed.
4. As a result there has been no need for me to separately consider the possible application of Pattinson in this case.

1. In Kavanagh No 2, Garde J adopted the factors the parties referred to in their submissions[25] and then addressed them under the following headings:[26]
   • The purpose of the Rules;
   • The maximum penalty for the contravention;
   • Other penalties imposed for contraventions of the relevant AR;
   • The nature and gravity of the contravention;
   • The conduct of the trainers during the investigation of the charges;
   • The trainers' character and antecedents;
   • Deterrence; and
   • Financial impacts.
2. As noted in Laming's Written Submissions,[27] the task (including on review) is not to impose the 'appropriate' penalty but rather to, under section 50ZE(1)(b) of the Racing Act:

make any decision or order that the [VRT] considers is required in the interests of justice, including the imposition of any penalty under the [Rules of Racing].

1. In Kavanagh No 2, Garde J said:[28]

The foundational purpose of the [Rules of Racing] is to regulate the horse-racing industry and its integrity, which is 'necessary both to ensure fair and open competition in racing, and to maintain the health and wellbeing of horses and their jockeys'.

The purpose of the Rules and the objectives that the Rules seek to achieve are of fundamental importance to the racing industry. They should be upheld at all times.

1. I proceed on that basis.
2. I note the following comments contained in the VRT's Penalty Decision:

Rules such as AR 240 are made for good purpose. Horses demonstrated to be presenting with a prohibited substance in their systems are bad for the image of racing. They damage the important perception of a level playing field. That is bad enough in the best of circumstances. When it is contributed to by careless and slipshod stable practices, it warrants the imposition of an appropriate penalty.

1. There is no maximum penalty for a breach of AR 240(2) but it is a strict liability offence.
2. It is convenient to refer to one matter in Laming's Written Submissions under this heading concerning the nature of disqualification, the penalty sought by RVL. As described in those Submissions:[29]

Disqualification is a very severe penalty (substantially different in character and effect to suspension) the effect of which is banishment from the industry, in that a disqualified person (amongst other prohibitions):

(d) cannot attend any licensed premises;

(e) cannot bet on horse racing;

(f) must divest themselves of any interest in racehorses by arm's length transaction; [and]

(g) must disperse and divest of any racing stock physically and by way of interest of any type.

Disqualification affords no presumption of resuming licensed activities on the expiration of the period of disqualification. Having completely divested themselves of any interest in horses and disbanded their training business, a person who has been disqualified must, should they desire again to engage in licensed activities, on the expiry of the disqualification period apply for a licence, which process can be time consuming, and unsuccessful.

1. RVL's Written Submissions placed some reliance on decisions made in harness racing cases.[30] Laming's Written Submissions took objection to the use of those cases,[31] including, as was emphasised at the hearing, because unlike horse racing, Harness Racing Victoria has published penalty guidelines. Relevantly, those guidelines include a starting point for a first offence for presentation of a horse with excess cobalt (a breach of rule 190(1)), being a three-year disqualification. RVL accepted that the guidelines had an impact on the utility in comparing those cases with that of Laming. In the circumstances, I have had no further regard to them.
2. RVL also referred me to interstate cases concerning horse racing and cobalt.[32] It was agreed that, in the interests of consistency, cases which involved the breach of AR 240(2), whether in respect of cobalt or another prohibited substance are potentially relevant.
3. At the conclusion of the hearing, I asked the parties to send copies of the reasons for decision for cases they relied on (in addition to those already provided).

1. Laming's Written Submissions started with a discussion of outcomes of Victorian penalty decisions on breaches of AR 240(2). The submissions stated that:[33]
   • The number of Victorian decisions imposing a disqualification for a breach of AR 240(2) (or its predecessor AR 178) is 'nil';
   • Since December 2018 (including when AR 178 was in the Rules of Racing and was worded consistently with AR 240(2)), the VRT had finalised 30 cases with fines being imposed in 29;
   • A suspension of six weeks was imposed in one case (Gelagotis[34] - see further below);
   • Since 2008, there have been suspensions imposed on two other occasions:
     • In 2018 the Racing Appeals Disciplinary Board (RADB) suspended a trainer (McPherson) for two months when cocaine was detected in a horse.[35] The trainer's personal circumstances were that he a very small-scale trainer and in a very poor financial position such that paying a fine would have been a very significant financial impost upon him; and
     • In 2010, VCAT suspended another trainer (Corstens) for six months for a positive test for altrenogest.[36] Corstens admitted six prior breaches of AR 178. Four of those were under an earlier version of AR 178 which included administration breaches.[37] Three of the admitted prior breaches were for elevated TCO2 (total carbon dioxide) concentrations in plasma; and
   • In the period 2002 to 2008, the RADB ordered 12 suspensions:
     • In Corstens in 2003, the trainer was suspended for three months for his fifth breach of AR 178 for the prohibited substance dexamethasone, an anti-inflammatory;
     • Also in 2003 in Hollinshead the trainer was suspended for three months for corticosteroid hydrocortisone; and
     • Ten other separate breaches of AR 178 for TCO2 elevations: Corstens (the sixth breach of AR 178); Vasil, Conlan twice, Thornton, Leek, Hollinshead, Smerdon and Theodore twice.

Breaches of AR 240(2) comprising an elevated TCO2 level have always been considered as a very serious example of a breach of AR 240(2) as elevation of the TCO2 level can only be achieved per medium of the drenching of the horse (introducing a bicarbonate saturated solution directly into the horse's stomach through a nasogastric tube) 4 - 8 hours before the horse is due to race, self- evidently a deliberate race day administration.

1. Next, Laming submitted that any RVL submission that cobalt was more serious and that other substances were accordingly distinguishable was 'risible'. I understood that submission was made, at least in part, because it is now accepted that cobalt has no performance enhancing effects and does not cause the kinds of serious harm to horses in the way considered in early cases dealing with the substance.[39]
2. Laming referred to the following:
   • In the case of Freedman,[40] the trainer was charged with administration contrary to AR 245 and, as an alternative, presentation in breach of AR 240(2). The substance was cobalt which was found to have been ingested, most probably, via a well-known feed which had widespread use. The possible explanation for the high reading was that the feed had a higher than expected cobalt content which was not the subject of any warning on the packaging or within the industry.

The trainer pleaded guilty to the breach of AR 245 and the alternative charge was withdrawn. The VRT noted the trainer 'had done nothing wrong' and further there was 'no negligence, no lack of supervision and no turning of a blind eye to less than adequate stable practices'. There was 'no question of some third party, such as a veterinary surgeon or a dietician, being involved or being left to their own devices without consultation or supervision'. There was nothing in the case that required the VRT to send a message to the industry or to the public. In the 'unusual circumstances' of the case and in particular given the absence of any warning on the relevant packing or otherwise, the absence of any negligence, supervision or the like on the part of the trainer, no penalty was imposed additional to the disqualification of the horse; and

• A trainer (Alexander[41]) pleaded guilty to administration contrary to AR 245. In its findings of fact, the VRT concluded that the cobalt had been administered over and above the horse's usual feeding regime 'by a person or persons unknown and not at the direction' of the trainer. Given the source of the cobalt remained 'a mystery', specific deterrence was a lesser factor. A $3,000 fine was imposed together with a six week suspension which was fully suspended for 24 months.

The trainer was back before the VRT in April 2023 after being charged with a breach of AR 240(2) during the 24 month suspension period after a horse was found to have a prohibited substance (Naproxen) in its system.[42] The VRT found the most likely explanation for its presence was the result of transfer from a staff member who was taking the medication for their own injury. When it came to penalty, the VRT found the breach triggered the operation and implementation of the suspended period of suspension. The six week suspension was ordered to come into operation. In respect of the AR 240(2) charge itself, the RVL submitted that a fine of between $3,000 and $5,000 ought to be imposed. The VRT imposed $3,000.

1. The summary of facts in both cases indicate that a significant driver for the penalties imposed for the breaches of AR 245 (and not AR 240(2)) were the surrounding circumstances which included no fault on the part of either trainer, 'no negligence, no lack of supervision and no turning of a blind eye to less than adequate stable practices' (Freedman) and an unexpected consequence of human interaction (Alexander).

1. In Gelagotis, the trainer had been charged with administration in breach of AR 244 (administration of a prohibited substance) or a breach of AR 245. Those charges were laid in respect of excess readings of alkalising agents but they were found not proven.[43] The trainer pleaded guilty to the alternative charge of a breach of AR 240(2).
2. Laming's counsel asserted before me that there could be 'no doubt' that the horse had been stomach tubed on race day (I note Laming's counsel also represented the trainer in Gelagotis).
3. The VRT had regard to the trainer's evidence that he was 'shattered' by the reading and made his own inquiries to try to understand how it had occurred. It found he was a credible and honest witness and that there was 'absolutely no explanation for the illegally high reading'.
4. The VRT had regard to two prior breaches (one of which was under the old AR 178 and involved administration). The VRT imposed a suspension of six weeks in respect of the breach of AR 240(2). The decision does not suggest that there were shortcomings in the trainer's stabling arrangements and operations or in respect of his management of the horse.
5. The VRT said the following, referring to one of the earlier disciplinary decisions made about the trainer by the RADB:

As was stated by the [RADB], the onus was on you to have in place a system that eliminated risk and it is apparent that you failed so to do. However, again bearing in mind all of the circumstances, we have reached the conclusion that you should be suspended for a period of six weeks.

1. Even proceeding on the basis that stomach tubing was involved, it is apparent that the VRT did not attribute culpability to the trainer in terms of the running of the stables and there no explanation as to who administered the substance or how.

1. The 8 September 2023 decision in Keating[44] involved alleged breaches of AR 245 and 240(2) related to cobalt. At the start of the hearing before the VRT, the AR 245 charge was withdrawn and the trainer pleaded guilty to contravening AR 240(2). There was a joint proposal that the trainer be suspended for 12 weeks, with six weeks suspended for 24 months plus a $5,000 fine.
2. The reasons were brief but, in respect of the detection of cobalt, the VRT noted that the source of the positive swab remained unknown and that, although a matter of speculation, 'it may have arisen from the level of cobalt in a substance given to the horse being incorrectly labelled on the product'.
3. The VRT was satisfied that the agreed penalty was appropriate 'taking into account general deterrence, the guilty plea, the importance of drug free racing, the good record and good character' of the trainer and the fact the level of cobalt was only 'slightly above the threshold and recent penalties in like matters'.
4. Laming submitted the 'like penalties' mentioned by the VRT for breaches of AR 240(2), were fines.

1. The VRT gave its decision in Goodwin on 16 February 2024.[45] The trainer was charged with a breach of AR 249 for administration of medication on race day. AR 249(2) provides for a penalty of not less than six months disqualification except where special circumstances exist. Those are defined to include 'the interests of justice', where an early guilty plea has been given and providing assistance to the Stewards. All of those matters were said to be relevant to Goodwin.
2. Before the 2024 matter, he had been a trainer for almost 40 years and had 'never been charged with a serious offence'.
3. The reasons explained that, on the morning of the relevant race day, a stablehand gave the horse her usual dose of medication to deal with ulcers. The stablehand was relatively new to the industry and was filling in for the person who usually fed the horse and dispensed medications. The new stablehand was not aware that racehorses are not permitted to receive medication on race days without the permission of the stewards. The trainer had forgotten to tell the new stablehand that the horse should not be given her usual daily medication as she was racing later that day. 'It was a mistake which was made honestly with no intention to flout the rule'.
4. It was during a stewards' inspection that they noticed a white substance on the side of the horse's mouth and the stablehand told them about the anti-ulceration medication. The trainer 'immediately told the stewards that he was at fault in forgetting to tell the stablehand not to administer the medication on race day'.
5. The VRT concluded that special circumstances applied noting that both parties made submissions supporting that view.
6. The trainer called for a $3,500 fine to be imposed while the RVL sought a $4,000 fine. The VRT imposed the former.
7. Laming submitted there were strong parallels between the mistake Mercer made and that described in Goodwin. I do not entirely accept that submission where the relevant rule was different and the circumstances were quite different, including where the error in Goodwin resulted from a singular lapse by the trainer and there was no sign of poor stabling management.

1. Laming placed particular reliance on a 6 March 2025 decision the Queensland Racing Appeals Panel (QLD Panel) gave in Hatch. The case concerned an admitted breach of AR 240(2) arising from a high cobalt reading.
2. The initial penalty imposed was a nine month suspension, taking into account the fact that the offence had occurred within the 24 month suspension of an earlier 2018 penalty (a nine month suspension) for a breach of the same kind.
3. The QLD Panel's summary of the circumstances shows that:
   • The trainer had been licensed for some 30 years and operated stables in Toowoomba and Townsville;
   • The relevant race occurred on 23 August 2024;
   • On race day, the trainer was not present at the relevant stables;
   • He was unaware of the breach until stewards brought it to his attention during an unannounced inspection six weeks after the race:

An inspection was made of the feed room where medicine cabinets were sighted, photographs were taken and treatment records sought. There is no suggestion of any laxness or impropriety in respect of any of these matters being detected during this unannounced inspection;

• With the assistance of his partner, the trainer had a computer-generated record keeping system of all medications and treatments given to the horses in training. The records included 'everyday treatments' and showed who administered the treatments;
• When interviewed by the stewards, the trainer 'remained at a loss to explain the presence of the cobalt in the urine sample taken' from the horse. The stable had protocols in place for the treatment administered to horses and the only possible cause that could be suggested was the administration of a paste on the Wednesday before race day. The paste contained Vitamin B12, and it was suggested that, used in conjunction with other routinely administered treatments, it may have inadvertently been responsible for the presence of the cobalt; and
• There was a suggestion that the horse was administered a double dose inadvertently because the horse stabled next to it was to receive the same supplement. The Qld Panel said that 'occurrence could not be dismissed as fanciful or improbable, but it remains a matter of speculation'.

1. The Qld Panel referred to the 2008 decision in McDonough v Harness Racing Victoria[46] (McDonough) The QLD Panel noted that, in McDonough, Judge Williams adopted the view previously expressed in New South Wales, summarised by the Qld Panel as follows:

culpability in presentation cases will generally, and he emphasised the word generally, fall into one of three categories. The first category is that in which, whether through investigation, admission or other direct evidence, it is possible to establish a positive culpability on the part of the trainer or other person involved.

The second, and most commonly occurring category, involves those cases in which the relevant Tribunal is left with no real explanation as to how the horse acquired the prohibited substance. An explanation may be rejected, or there may simply be no provable explanation available - the administration may have occurred accidently, or mistakenly.

The third category of case is that in which the trainer, or other relevant person, is able to provide an explanation which the Tribunal accepts, and which demonstrates no personal culpability at all on trainer's part.

1. That 'tripartite distinction' was accepted and applied by Garde J in Kavanagh No 2.[47]
2. The QLD Panel went on to say:[48]

Although this categorisation of presentation cases does provide some guidance, the distinction between categories is not always a matter of clear demarcation and there are some circumstances which sit between the second and third categories in particular. For example, the evidence may not reveal how the administration of the prohibited substance occurred, but the evidence establishes that strict procedures were in place, designed to prevent such an occurrence . . . What really matters is some assessment of the degree of blameworthiness involved in the particular case, some conduct being more culpable that other conduct.

1. In Hatch, the trainer was found to fall within category two level of culpability and at the lower end of that category after regard was had to him being a witness of truth, the low level of cobalt, his absence on the day and the manner in which he operated his stables. The QLD Panel said:[49]

It is clear that his stables are well maintained, that his medications are properly stored, and that treatment records are also carefully maintained. No suspicious or prohibited substances or procedures were detected on the occasion of the unannounced visit by officials on 8 October 2024. It is unsurprising in the circumstances that he is unable to identify any particular cause for the presence of the prohibited substance in the urine sample. The Panel notes also the concession by [the Queensland Racing Integrity Commissioner] that there is no evidence to establish moral blameworthiness on the part of [Hatch].

1. When considering other cases, the QLD Panel noted that presentation offences involving cobalt attracted fines and/or suspensions by way of penalty and that actual suspensions can be 'within the range' of penalties available in a particular case.[50]
2. The QLD Panel imposed a fine of $7,500 after considering the circumstances of the breach, the trainer's early guilty plea, his history and his personal circumstances.
3. It concluded that cobalt was to be treated no differently to other prohibited substances.[51]
4. The QLD Panel stated that the trainer:[52]

. . . is a man of good character who maintains thorough treatment records for horses in his stable. Importantly, the consequences for him of activating the suspended penalty and effectively destroying his livelihood would be totally disproportionate to the offending.

In the view of the panel, it would be unjust to now order the activation of the suspended penalty imposed for an offence which occurred more than six years earlier.

1. RVL referred me to the decision in Keating which has been summarised above.[53]
2. RVL drew my attention to the fact that both Freedman and Alexander involved a breach of AR 245 and not 240(2) which gave rise to the Presentation Charge against Laming. It noted the different factual circumstances in Freedman as compared to the findings of fact made as to Laming's management of the stables.

1. RVL referred me to the facts of Kavanagh No 2.[54]
2. As is well known, the two trainers (Kavanagh and O'Brien) pleaded not guilty but were found to have contravened the presentation version of AR 178.
3. In his first instance decision,[55] Garde J accepted that the cobalt positive results were caused by the trainers' vet, who had acted without the knowledge, awareness or consent of Kavanagh and O'Brien by administering (or instructing staff to administer) IV drips containing a vitamin complex which contained cobalt. The particular substance was commercially available. The vet did not record the treatments.
4. He found that neither trainer had ever shown any interest in cobalt or prohibited substances; they had unblemished records over a long period. Neither of them had contemplated the use of prohibited substances and the vet's actions were not something that either of them had wanted, expected or suspected. Garde J found there had been no wilful blindness on the trainers part as they relied on the vet to adhere to the Rules of Racing.
5. His Honour found they fell into the third McDonough category such that there was no blameworthiness on the trainers.[56]
6. Garde J found that deterrence was an important factor and should be reflected in sentencing. However, he concluded that the five year disqualification imposed on the vet served the purpose of sending 'a clear and compelling message to future wrongdoers'.[57]
7. Fines of $4,000 and $8,000 were imposed.
8. RVL contrasted the findings as to blameworthiness by Garde J with those made by the VRT in respect of Laming. I accept that distinction is important.

1. On 15 July 2021, the Appeal Panel of Racing New South Wales (NSW Panel) made a decision regarding charges against a trainer arising from a pre-race sample which was found to contain excess amounts of cobalt (Russell). The sample also contained another prohibited substance, heptaminol (a cardiac stimulant).
2. The results led to two charges under AR 204(2).[58] The trainer pleaded guilty and the stewards imposed a 12 month disqualification in respect of the cobalt and a two month suspension in respect of the heptaminol. The trainer sought the NSW Panel's review of the penalties.
3. In its decision, the NSW Panel discussed the expert evidence about how the cobalt came to be ingested. There was no definitive resolution of the factual issue, however the panel concluded that a cobalt containing product was administered close to the Tuesday race day and that the results could not have been explained by an administration on the Sunday before.[59]
4. The NSW Panel described the seriousness of the breach as follows:[60]

. . . a breach of AR 240(2) is an objectively serious breach of the [Rules of Racing]. It is always a terrible look for racing when any horse races and is subsequently found to have had a prohibited substance in its system. While there is no finding made that the cobalt in this horse's system had a performance-enhancing effect, it is an even worse look for racing when a horse runs in a race with a prohibited substance in its system and wins.

1. The NSW Panel confirmed the 12 month disqualification for cobalt, despite having accepted there was no administration charge, that the trainer did not have 'a relevantly bad record', that she had been a trainer for 15 years and it was her sole source of income to support herself and young children.
2. It did so accepting that the primary purpose of penalties are protective, not punitive, and are 'about protecting the image and the integrity of the sport of racing'. As to deterrence in the context of the strict liability nature of AR 240(2), it said:[61]

Deterrence is relevant in circumstances where there has been no intent to breach AR240(2) - for example, where a licensed person has breached the rule not by any intent to do the wrong thing, but because they have failed to maintain proper stable practices, or heed the warnings of the Stewards in relation to certain products where there is a risk of a breach of the Rules through lax practices and cross-contamination. Penalties are imposed to deter that kind of conduct - and protect the sport and the racing public from it - as well of course for more deliberate cheating (which is not involved in this case).

1. The NSW Panel gave particular weight to an earlier decision made by the Racing Appeals Tribunal in a case called Sprague which was described as 'setting a benchmark for penalties to be imposed for like offending involving cobalt.'[62] That penalty was stated to be a 12 month disqualification for a first offence (although on my reading of Russell the actual disqualification imposed in Sprague seemed to be 10 months). The NSW Panel said it 'must pay proper regard to the decision in Sprague saying:[63]

Consistency in the imposition of penalties by this Panel is important. The imposition of inconsistent or erratic penalties will result in a loss of confidence by all concerned in the industry in the process of imposing penalties for breaches of the [Rules of Racing]. That is why the Panel must follow Sprague and other decisions of the Racing Appeal Tribunal unless we are very strongly satisfied that they are wrong for some reason.

1. It decided that Sprague was to be followed and that 'unless there is something truly out of the ordinary' the 12 month disqualification was to be applied. In respect of a submission that a six month suspension was appropriate, the NSW Panel assessed that as 'neither appropriate nor consistent with prior decisions'.[64] Ultimately, though, as was the case in Sprague, the majority of the NSW Panel decided to impose a 10 month suspension in respect of the cobalt related breach of AR 240(2).
2. RVL did not take me to the decision in Sprague or the reasons why the NSW Panel identified and has, apparently, applied a standing first offence 12 month disqualification to breaches of AR 240(2). It did not make submissions addressing whether Sprague or Russell have been considered or applied by the VRT.

1. In its reply submissions dated 9 July 2024[65] (RVL's Reply), RVL noted that Laming's identification of cases appeared to be guided by the type of outcome, rather than the circumstances of the trainer and/or contravening conduct. It referred to heavy reliance being placed upon statistics and what were said to be a representation of penalties imposed. RVL submitted that the determination of the correct or preferable penalty, however, has regard to a number of matters, one of which is the penalties imposed in what can be considered to be comparable cases. It noted that the High Court of Australia:[66]

... had observed consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently. Regard is had not just to what has been done in other cases but why it was done.

... the prohibition of cobalt has no greater or lesser importance in Victoria than it does in other Australian racing jurisdictions (such as NSW). The same contention can be advanced for other prohibited substances founding a contravention of AR 240(2). The point is that the integrity of the racing industry as a whole is affected by such conduct. The rule is an Australian Rule. Consequently, there should be consistency in outcomes of interstate contraventions of AR 240(2) involving the relevant prohibited substance. Such a notion is consistent with fairness.

1. I set out below how I have compared the facts in this case and, as relevant, Laming's circumstances with the other cases relied on by the parties. I record now that I have been conscious that some of the cases to which I was referred concerned rules other than AR 240(2). Nevertheless, I have had regard to the factual circumstances of each, particularly regarding how the relevant substance was ingested (if known) and any relevant comments about the stabling practices.

1. As mentioned in the above summaries of AR 240(2) cases (and as discussed further below), the fact the Presentation Charge was one of strict liability is relevant to the penalty, including in respect of deterrence.
2. It is also relevant to seriousness.
3. RVL referred me to the following observation made by Maxwell P in Racing Victoria Limited v Kavanagh & Anor:[68]

In striking contrast to the administration offences, the offences resting solely on proof of detection do not carry a fixed or minimum penalty. This is doubtless because the degree of blameworthiness attaching to the trainer (and 'any other person who was in charge') will vary according to the circumstances under which the prohibited substance came to be in the horse's system . . .

1. As discussed earlier, Cavanough J made it plain that the circumstances in which the strict liability offence was committed are highly relevant to penalty (see [34] above).
2. In contradistinction to what Maxwell P and Cavanough J have said, it would appear from Russell that the NSW Panel has applied a fixed or minimum penalty for presentation cases even though the Rules of Racing themselves contain no such direction and without regard to the individual circumstances in which AR 240(2) was breached. As discussed further below, that approach does not seem to have crossed the NSW/Victorian border.
3. As to blameworthiness, I accept that the assessment for an administration charge under AR 245 is different in nature to that to be undertaken for a presentation charge under AR 240(2). The latter does not include an allegation that the trainer cheated, tried to obtain an unfair advantage or was negligent.
4. However, noting the statements made by Maxwell P and Cavanough J, blameworthiness can become relevant when looking at how the prohibited substance was ingested and whether, for example, it was avoidable.
5. At the hearing, Laming submitted that the decision in McDonough was made in 'a different era' and concerned 'different rules'. Emphasis was placed on Judge William's use of the word 'generally' when setting out the three categories.
6. McDonough was decided in 2008 which, I accept, is 17 years ago. Despite its age, it was still regarded as relevant and of assistance to Garde J in Kavanagh No 2 in 2018 and to the QLD Panel in Hatch in 2025. I do not accept it is of no current relevance.
7. Further, I do not accept that the rule in issue in McDonough was materially different to AR 240(2). It says:[69]

A horse shall be presented for a race free of prohibited substances. If a horse is presented for a race otherwise then in accordance with sub-rule (1) the trainer of the horse is guilty of an offence.

1. So, it seems to me that, despite its age, McDonough's three categories assist in identifying seriousness, which in turn has relevance to the exercise of discretion on penalty.
2. At the hearing, Laming submitted that, if those categories were to be applied, the conduct was closest to category three, submitting that category two had elements of administration type offences. Laming also submitted that the conduct in this matter was similar to that in Freedman (a case about administration contrary to AR 245), in Goodwin (a case about treatment on race day contrary to AR 249) and Hatch (an AR 240(2) case).
3. RVL referred to the various findings the VRT made, Laming's long experience as a trainer and submitted that Laming's culpability 'should be considered at the highest end' (of category one) and that his contraventions were of 'a very high order'.[70] RVL pointed to Laming's past contraventions (referred to below) and the Nebuliser Incident and submitted that his failure to be 'on full alert' showed that he had learnt nothing from those past matters. RVL further submitted that Laming's contravention of AR 240(2) was 'of a far greater order' than the cases it had identified,[71] apparently including Russell.
4. Having regard to Garde J's statement of the purposes of the Rules of Racing[72] and the VRT's comments about the purpose of AR 240(2), the breach was 'bad for the image of racing'[73] (or, as it was put in Russell, a 'terrible look') and reduces the public's confidence in racing being a level playing field.
5. Focussing on the facts surrounding the ingestion of the substance, I accept it is open to make some comparison between the staff in Freedman and Goodwin and Mercer in that they all erred when administering the prohibited substance. Mercer was found to be very experienced (unlike the staff in the other two cases) but she made a mistake on the relevant day: she had known from early in her employment that injections were not to be given on race day but she did so accidently in the context of a lack of systems which identified which horses were to race each day. While Mercer was 'culpable' in the sense that she intentionally administered the cobalt, the VRT did not find she did so with any ill intent such as to enhance the horse's performance on race day: it was satisfied that she was aware cobalt was not to be administered before race day but was unaware that Iam Extradordinary was due to race on 23 May 2018.
6. Importantly, and in striking contrast to the VRT's findings about Laming, the decisions in Freedman, Goodwin and Hatch did not reveal stable practices which were 'careless, inadequate and displayed indifference', 'shambolic' and involving a 'haphazard "random" regime of injection giving' and nor was there evidence of 'the apparent absence of any direct control or intervention' of the trainers. The VRT found that Laming had a 'high degree of ignorance' as to the particulars of what was going on in his stables and had not learned from the Nebuliser Incident: Laming was not on 'full alert' in the manner the VRT suggested was required. As the VRT stated:

This is not a situation of one slip made in otherwise a well-run carefully operated stable.

1. Arguably, the practices as described in Hatch are the opposite of what appeared to be the situation in Laming's stables as described by the VRT. In fact, as indicated below, the stable management changes made by Laming appear to be consistent with those described as being in place in Hatch.
2. None of the McDonough categories fit neatly, given the source and manner of ingestion of the substance is known, and Laming was found to be responsible for the operating circumstances which led to the race day administration, rather than administering it himself.
3. However, in my view, having regard to the VRT's findings, Laming's culpability is somewhere between category one and two. There is culpability on Mercer who administered the injection and Laming's failings in respect of his operation of the stables is similar to the second half of the examples offered by Judge Williams for category one (italics my emphasis):

Within that category the culpability may be in the class of deliberate wrongdoing or it may be through ignorance or carelessness or something similar.

1. I do not consider it helpful to attempt to rank Laming's conduct further by reference to the McDonough categories. The VRT's findings about the extent and significance of the failings are sufficient to conclude that the nature and gravity of Laming's breach of AR 240(2) was very serious, notwithstanding the strict liability nature of the breach.

The conduct of the trainer during the investigation of the charges

1. As summarised earlier, while Laming disputed the Administration Charge, he made an early admission to the Presentation Charge. The VRT stated and I accept that Laming is to be given some credit for that.
2. Other than commenting on Laming's apparent ignorance about the lack of record keeping (for a period of about six weeks), the VRT made no adverse findings against Laming in respect of the conduct of the investigation.
3. On the other hand, as noted in RVL's Written Submissions,[74] the VRT made no positive findings of remorse, insight or meaningful assistance with the investigation.
4. Laming did not produce his own written statement or give evidence before me about the above matters.

1. As quoted earlier, the VRT noted Laming's long history as a trainer. It also referred to him not having 'an unblemished record'.
2. VCAT Laming and RVL's Written Submissions set out that record as follows:

AR 104(1): failing to record in the treatment diary a calcium drip administered.

AR 178: positive sample for Triamcinolone Acetonide (corticosteroid). AR:178F(1): failing to record injection in treatment diary.

Fine: $4500 ($3,500 for AR 178 breach; $1,000 for AR178F breach)

AR 178E: administered Accent (an antibiotic commonly used in racing stables for the treatment of lower respiratory tract infection) by inhalation with a nebuliser on race day.

AR 178A: possession of a needle which could be used to administer a prohibited substance.

AR 177B: Out of competition positive samples for EPO.

1. The VRT referred to Laming's past offending and to the 'substantial disqualification' of three years for EPO (in 2010). It also referred to the two-month suspension imposed following the Nebuliser Incident and expressed concerns about Laming's failure to learn from that Incident which occurred only a few months earlier.
2. In my view, the 2010 and 2018 offences taken together with the very significant shortcomings in Laming's stable management, including his own very limited knowledge and day to day involvement, mean that he must be distinguished from one off or unusual offending, such as that seen in Freedman, Alexander, Keating, Goodwin and Hatch.
3. While Laming's past administration related breaches of the Rules of Racing are different in nature to the strict liability offence in AR 240(2), I take them into account in so far as they indicate that, as at May 2018, Laming appears to have failed to make a comprehensive assessment of how substances were used in his stables. As noted by the VRT, while the Nebulizer Incident was an opportunity to learn, that was not taken. Those failures form part of the background to how the penalty can address general and specific deterrence.
4. At the hearing, Laming's counsel described the background to a number of the other offences listed above.[75] I did not consider those other past matters were of direct relevance to my decision on penalty given they were quite different in nature.

1. Williams made an affidavit on 15 May 2024. It explained that he was employed by Laming as a full time assistant trainer, working at the Cranbourne stables. Williams has been a licenced horse trainer since 2017.
2. Prior to working for Laming, in or around late 2019, Williams rented boxes at Laming's premises for his own training operation. From that time, he was able to observe Laming's stabling systems and processes.
3. His affidavit said the following in respect to Laming's stable practices as at May 2024:

1. Laming Racing uses a daily worklist to document information regarding upcoming horse treatments and the administration of vitamins. The worklist is created using a Microsoft Excel spreadsheet and is emailed to all staff employed at the Cranbourne stable every day. The worklist is sent to the staff around mid-morning or early afternoon and is sent one day in advance. That is, the worklist for the next days' work is sent to all Cranbourne staff.
2. The far-left column of the worklist sets out the names of all the horses at the Cranbourne stable. Horses that are to be administered vitamins have their names fully blocked out in red. These horses receive oral vitamins on Mondays, Wednesdays, and Fridays, unless they are scheduled to race. This column is checked each day to ensure it is up to date.
3. On the right-hand side of the worklist is a column titled 'Next Race I Trial' which lists the upcoming race dates for all horses at the Cranbourne stable. Upcoming race dates are entered into this column about 2 to 3 weeks prior to the upcoming race so that staff are made aware at the earliest opportunity that a race is coming up, to ensure that vitamins are not administered for at least one clear day prior to the race. This column is checked every day and updated where required before the worklist is emailed to staff ...

1. Myself and one other staff member ('MD' - foreman) administer vitamins to horses. We are the only two staff that are trained to administer injections.
2. Stable hands only administer oral vitamins to horses if they are directed to by me. The administration of oral vitamins is a task delegated very rarely. Generally, it is only me or MD who administer vitamins to the horses.
3. After each treatment is given to a horse, the staff member who has given that treatment updates the treatment diary. The treatment diary is updated contemporaneously with the treatment being given. I usually update the treatment diary while I am preparing the vitamins to be administered to the horse.
4. The treatment diary is located in the Tack Room.

Processes For Prevention Of Treatment On Race Days

1. Laming Racing has a large whiteboard located in the Tack Room. The Tack Room is the point of call for all staff as soon as they arrive at work. The staff report to the Tack Room when they arrive and check the whiteboard before starting work to see which horses are racing.
2. The whiteboard lists all horses at the Cranbourne stable on the left-hand side. There are sections on the whiteboard to show which horses are racing, the horses that are to be worked on the treadmill, the horses to be trialing that day and the horses that are to be loaded on the truck for trackwork. The whiteboard is updated by me or MD daily and is based on the daily worklist ...
3. Magnets are also placed on the doors of boxes to indicate that a horse is racing ...
4. To ensure that staff can properly identify the horses:
   1. All horses at the Cranbourne Stable have halters which display their name. Whenever the staff go inside a box to handle a horse the halter is put on. This enables the staff to identify the horses ...
   2. There are signs on the front of the boxes stating the name of the horse, the breeding, and the sex of the horse ...
5. That I have been informed and verily believe that the current stable practices in respect of horse treatments and the administering of vitamin injections have been in place at the Cranbourne stable since the abandoning of using the IT system. Prior to commencing employment with Laming Racing, I observed these practices. I regularly engaged in conversation with Laming Racing staff and assisted with stable operations from time to time.
6. I am aware that there was previously an IT system in place at Laming Racing, however, there were issues with this system and therefore it is no longer used.
7. RVL made no submissions as to the nature or appropriateness of the practices William's describes other than to note the evidence speaks only to the period around May 2024 and not before or after.[76]
8. Mindful that I cannot make findings of fact about the operations of Laming's stables in around 2018 (as they have been made by the VRT and are binding on me), I give weight to the changes made which appear to have been put in place in around May 2024 and seem to conform to those observed to operate in Hatch.

The role of penalties for strict liability offences on integrity and general deterrence

1. Laming's counsel submitted that concerns expressed by RVL about maintaining the integrity of racing and general deterrence had no role to play in respect of a strict liability offence such as the Presentation Charge.[77] He submitted that was particularly so given the Charge arose from a mistake made by a person other than Laming and without Laming's knowledge.
2. I cannot accept that submission in light of the VRT's findings about Laming's stabling and management practices. They were found to be the cause of the breach of AR 240(2) and so cannot be readily compared to breaches resulting from the malicious actions of others or in unusual circumstances, such as those in Keating and Hatch.
3. As emphasised by both the VRT and Cavanough J, the circumstances in which the breach occurred, including Laming's lack of knowledge and the running of his stables, are relevant to penalty.
4. I quoted earlier from Hatch and Russell and the impact on integrity of breaches of AR 240(2). Garde J referred to the role the Rules of Racing play in regulating the horse-racing industry and ensuring its integrity, both of which are necessary to ensure fair and open competition in racing, and to maintain the health and wellbeing of horses and their jockeys.
5. In this case, the decision on penalty can support public confidence in trainers exercising a high level of order and control over their stables' operations. Other trainers can be deterred from operating in a similar 'haphazard' manner by knowing their operations may well be a factor which influences the imposition of a penalty for the strict liability offence under AR 240(2).
6. Accordingly, I reject Laming's submission that the strict liability nature of the rule in issue means damage to the integrity of the sport and public confidence are not relevant to penalty and instead find that the penalty to be imposed ought to be designed to provide general deterrence.
7. Laming's Written Submissions proposed that specific deterrence was 'an irrelevant consideration' along with denunciation.[78] As set out above, in Kavanagh No 2, Garde J referred to deterrence being a factor for consideration and, as illustrated by his Honour's reasons, specific deterrence was within that factor.
8. Given the parties agreed the matters for my consideration were those contained in Kavanagh No 2 and given Laming's Written Submissions relied on matters said to be relevant to specific deterrence - for example delay[79] - I reject the proposition that specific deterrence is an irrelevant consideration.

1. RVL submitted that, in light of the VRT's findings about Laming's stabling practices, general deterrence 'looms large in this case and should attract significant weight'.[80] It submitted that the penalty:[81]

should be sufficient to convey a strong message to the industry and wider public that licensed trainers cannot divest themselves of their responsibilities. It is important that racing is perceived as being conducted fairly, uninfluenced by prohibited substances.

Any penalty should also send the message that licensed trainers must take an active interest in the maintenance of treatment records. As the wording of AR104 denotes - it is the trainer who is responsible for the keeping of treatment records.

The correct or preferable penalty should act in emphatic denunciation of the shambolic stable practices in which the contraventions occurred.

1. As indicated by the comments in [151] above, I consider that general deterrence has an important and practical role to play in warning other trainers that they are responsible for the management of all aspects of their operations and so, in order to avoid penalties which might interfere with their licence, they must ensure they address the risk of a breach of AR 240(2) and that processes are monitored with vigilance.

1. Laming relied on the above evidence about changes made to his stabling operations to demonstrate that specific deterrence was not a significant factor in this case.
2. There was no evidence or other statement from Laming before me which addressed those matters or which explained his understanding of his shortcomings, how he had come to make the changes in his stabling in mid-2024 and how he planned to 'have in place a system that eliminated risk'.[82]
3. RVL submitted that specific deterrence was relevant and was to be informed by the systemic practices at Laming's stables, the Nebuliser Incident some three months earlier and Laming's prior racing disciplinary record.[83] It submitted that:[84]

Any person who takes part in the industry agrees to be bound by the [Rules of Racing] and to comply with them. [Laming] is an experienced trainer. His ongoing participation in the industry is a privilege and subject to his compliance with the [Rules of Racing]. His overarching obligation as a licensed trainer is to take responsibility at all times for the operations of his stables. The circumstances in which these contraventions occurred are positively inconsistent with that obligation.

1. RVL then submitted that it was 'self-evident' that the penalties listed above (at [137]) did not deter Laming from the 2018 contraventions and so specific deterrence remained a relevant consideration in an assessment of the correct or preferable decision as to penalty.
2. I note that the above submissions were made before RVL had William's affidavit. In RVL's Reply it took issue with the relevance of delay (see further below) and submitted that:[85]

the question of specific deterrence is informed most obviously by the lack of further contraventions since the instant contraventions. By the same token, it is not eliminated. [Laming] has contravened five prohibited substance rules or associated offences with penalties ranging from fines to periods of suspension and disqualification. He has relevant failures to record treatment. He was disqualified for three years in relation to a prohibited substance. Further, the VRT made powerful findings about his shambolic practices at the time of his contraventions

1. I have already referred to Laming's past breaches of the Rules of Racing.
2. Despite not hearing directly from Laming, I find the changes made, as described by Williams, appear to have addressed the previous shortcomings identified by the VRT and that, at least as at 2024, they demonstrate some insight on Laming's part. I further accept that the changes, provided they are maintained, will ameliorate against the risk of a further inadvertent breach of AR 240(2).
3. Taking together the changes to stabling practices as at May 2024, and, as discussed below, the consequences for Laming personally which were said to be relevant to specific deterrence, I have a high but not complete sense of confidence that he personally (or those under his direction) is unlikely to again breach AR 240(2). That depends, of course, on the changes in practices being maintained. In the circumstances, specific deterrence has some role to play in imposing a penalty.

1. At the hearing, I was informed that, since the application for review was first made at VCAT in 2021, Laming had incurred very significant legal costs. As I understood it, even after Cavanough J made an order which resulted in around $140,000 of those costs being paid by RVL, Laming was 'out of pocket' around $200,000. I accept that is a significant burden and that will act as a deterrent to Laming and, one would hope, other trainers.
2. I was also informed that, over the course of the litigation, Laming had gone from training around 60 horses to around 15. Those numbers were not disputed by RVL. While I had no financial records before me, I accept that Laming's overall financial circumstances would have been adversely affected.
3. Laming's counsel referred to the impact of the ongoing litigation and the risk that the outcome would include suspension or, more seriously, disqualification. He asserted, and I accept, that even though the Penalty Decision was stayed immediately when it was made, the uncertainty about the ultimate penalty to be served by Laming impacted on owners' willingness to engage him and so his financial circumstances.

1. In his written[86] and oral submissions, Laming's counsel relied on the seven years that had passed between the breach of AR 240(2) in May 2018 and the re-hearing in May 2025. He asserted that '[n]o part of the delay can be laid at the feet of' Laming. I was referred to criminal cases where delay and the need for mercy were considered as part of sentencing.
2. At the hearing, Laming's counsel modified the submission as to the role of mercy and submitted that delay ought to have considered as a factor in assessing the penalty that is 'in the interests of justice' under section 50ZE(1)(b) of the Racing Act.
3. Separate from consistency with other AR 240(2) cases, Laming relied on the delay as supporting the imposition of a fine.
4. In part reply, RVL referred to Laming's conduct of the remittal at VCAT, referring to various procedural orders and steps and alleged breaches by Laming. It submitted that Laming held some blame for the delay and further that delay was 'not an entitlement to an automatic discount'.[87]
5. As explained at the hearing, some of the delay in the hearing of the remittal was caused by VCAT's resourcing difficulties over recent years. Neither party is responsible for those and, it was my view that, raking over dates and whether there was compliance by one party or the other would not be a particularly helpful process given the total delay since Laming made his application to VCAT for review (on 19 February 2021) and my decision.
6. At the hearing, Laming's counsel, apparently light heartedly, suggested that his client might have been better to have taken the three month suspension.
7. I accept that the very long time this matter has been hanging over Laming's head is a significant factor when exercising discretion. In circumstances where the decision in VCAT Laming was found to be wrong in law, I accept that the period between around January 2022 when the orders in VCAT Laming were made and when the final version of the Judgment was handed down in March 2023 was lost.
8. Added to that was around 18 month period during which the following occurred:
   • On 23 December 2022, a registrar wrote to the parties noting receipt of Cavanough J's final orders (from the Court on 23 December 2022) and inviting the parties to provide their views on the proceeding before VCAT;
   • It appears the first substantive response to that enquiry was received by VCAT from the solicitors for RVL was nearly 11 months later, on 11 October 2023. RVL sought a directions hearing on the remittal;
   • VCAT made orders for preparation for the re-hearing on 4 December 2023 listing an administrative mention on 29 February 2024. By that date the parties were to provide their joint Tribunal Book and information to allow a further hearing to be listed. That administrative mention was adjourned to 17 April 2023 on the parties' joint request;
   • A directions hearing was held on 3 May 2024 regarding a disagreement about the admissibility of and weight to be given to new evidence Laming wished to rely on. A further administrative mention was listed for 11 June 2024; and
   • The parties responded to the June 2024 administrative mention in September 2024 and on 17 September 2024 the final hearing was listed for 30 May 2025, taking into account the parties' availability and VCAT's hearing capacity.
9. As stated earlier, I accept the delay and all of the associated personal and financial consequences for Laming, his family and his business will deter Laming and can be expected to deter other trainers.
10. As discussed further below, I accept that the total delay in the completion of the decision making process on penalty and the fact there have been no breaches of any of the Rules of Racing since mid to late 2020 are factors which properly impact on the penalty to now be imposed.
11. I have proceeded on the basis that Laming's experience in dealing with the original charges, the subsequent litigation (and its costs) and the time that has elapsed since the VRT's Penalty Decision was given on 19 February 2021 will have had a deterrent effect upon him.

1. In my discussion of the cases the parties referred me to, I commented on how some were of limited assistance and how others compared to the facts before me as found by the VRT.
2. In summary, the other cases show that:
   • For some breaches of AR 240(2), fines are imposed, especially when there is no culpability on the part of the trainer, including because of the nature of the explanation for how the substance came to be ingested or because there was no explanation (for example Kavanagh No 2 and Hatch);
   • A suspension was imposed for a breach of AR 240(2) where there was limited culpability on the part of the trainer (Gelagotis) and where the parties reach a negotiated settlement (Keating); and
   • There have been no cases of disqualifications being imposed for breaches of AR 240(2) in Victoria but there have been in at least two cases in NSW (Sprague and Russell).
3. For the reasons given earlier, proceeding on the VRT's factual findings, Laming cannot be regarded as in the same position as the trainers in Kavanagh No 2 and Hatch because the manner in which he ran (or failed to run) his stables was identified as the cause of the erroneous administration of cobalt.
4. While Laming did not administer the substance, his 'careless and slipshod stable practices' meant that his employees could not identify which horses were running and so there was no means by which they could identify horses who should not be treated close to or on race day. The cases relied on by Laming as referred to above do not support a conclusion that a fine is an appropriate outcome.
5. As is apparent from the summary of the decision in Gelagotis, a six week suspension was imposed even though it would seem plain the horse was stomach tubed (not something that can occur inadvertently). In making its decision, the VRT found the trainer was a credible and honest witness and there was 'absolutely no explanation for the illegally high reading'. The VRT's reasons in that case indicate that the decisive factor was the trainer not meeting the onus 'to have in place a system that eliminated risk'.
6. As indicated in the discussion of Russell (from [100] above), I did not have submissions from RVL which explained why I should adopt the same approach as that of the NSW Panel. I have reservations about implying into the disciplinary regime a fixed or minimum penalty in light of the views expressed by the Victorian Court of Appeal and Supreme Court.
7. What RVL did rely on in its oral submissions was its assessment that the VRT's findings about Laming's operations showed it was difficult to envisage a more serious failure of management and, in that light, the penalty did not reflect the severity of the breach and the importance of the matters found by the VRT. I agree with the gist of the assessment of Laming's operations given the VRT's findings but have formed a different view of the appropriate penalty.

1. Cavanough J said the following at [150] of the Judgment (footnotes omitted) regarding the weight to be given to the VRT's Penalty Decision:

There is another way, too, in which VCAT's legally erroneous approach in this case is likely to have contributed to the adverse outcome that befell [Laming]. Under the more conventional 'de novo' style of administrative review, VCAT may or may not be entitled to give weight to the decision below, although VCAT should not treat the decision below as presumptively correct. However, the 2019 amendments to the [Racing Act], which included the introduction of [Clause 66N], would clearly justify VCAT giving weight to the decision of the VRT, as an expert tribunal, by whose findings of fact VCAT is bound. In the present case, there is no indication in VCAT's reasons for decision that it even considered whether or not to give weight to the conclusion of the VRT. In any event, the vast increase in severity of the penalties imposed by VCAT suggests strongly that VCAT, having made its own findings of fact, gave no weight whatsoever to the VRT's conclusion on penalty. Had VCAT adopted the correct legal approach, it may well have considered the VRT's conclusion and given it considerable weight.

1. On the one hand I do not proceed on the basis that VRT's decision is presumed to be correct. On other hand I heed his Honour's statements about the very deliberate and specialised role the VRT has been given in the regulatory framework.
2. In my view, the VRT was well placed to have an informed view of the range of conduct which leads to breaches of AR 240(2) and the circumstances of the trainers who do so. My reading of the Penalty Decision is that the VRT regarded Laming's stable management practices as at the worst end of the spectrum. While the reasoning was not complete on the point, it is apparent that Laming sought a fine[88] and the VRT decided that was not sufficient. RVL's submissions before the VRT sought a disqualification. The Penalty Decision shows that proposition was also rejected.

Suspension for three months is in the interests of justice

1. I have concluded that the imposition of a suspension is available as a penalty when compared with the other cases discussed above given the VRT identified the cause of the ingestion of cobalt as being Laming's failure to properly operate his stables. The fact that there was no significant evidence of remorse or insight before the VRT or before me leads to my concluding that a fine would be inappropriate. A comparison with the circumstances in Gelagotis, including the finding that the trainer was a credible and honest witness and there was no explanation for the high reading, leads me to the view that the three month suspension imposed by the VRT was proportional (as compared to the six weeks in Gelagotis) and it's affirmation is in the interests of justice.
2. I also reach that view because the VRT's excoriating assessment of Laming's management practices supports more than a financial penalty being imposed in order to deter Laming, in so far as that is necessary, and to ensure other trainers are on notice of the risks like practices carry. In my view, the imposition of a suspension of three months is in the interests of justice in order to address general deterrence and to support public confidence in trainers exercising a high level of order and control over their stables' operations.
3. As to the proposed disqualification, having regard to the other cases (including Russell as discussed above), the expertise of the VRT and the severity of the impacts of a disqualification, I am not persuaded that such an outcome is in the interests of justice.

Suspension of the penalty is in the interests of justice

1. Laming submitted that, if the suspension was to be imposed, it ought to be suspended having regard to the delay, the entirety of the regulatory processes and the associated costs to which he has been subject since the charges were first laid on 10 October 2019 (and then issued in amended form on 20 December 2019).
2. I find that making an order suspending the three month suspension penalty is in the interests of justice in those circumstances.
3. Although I am aware there has been no breach of any of the Rules of Racing by Laming since mid to late 2020, I do not have any evidence or personal statement from Laming sufficient to allow me to conclude only a short suspension of a few months is necessary or appropriate.
4. In order to ensure that the changed stable practices in place as at May 2024 have been and continue to be entrenched and second nature to Laming, I consider a suspension period of 12 months for the suspension penalty is necessary.

At the relevant time, Mr Laming conducted two training establishments. These matters arose at Clyde.

Mr Marnu Potgieter was Mr Laming's licensed assistant trainer, or foreman. Ms Amy Mercer was a licensed stable hand employed by Mr Laming. She had been so employed for four or five years at the relevant time, and indeed was so employed before the arrival of Mr Potgieter. Her duties included the administration of injections and the written recording of these.

VRT Dismissal Decision, p 6 Supreme Court Reasons, [77]-[78]

The Horse was to run at Ballarat on Wednesday 23 May 2018.

Approximately three months before the Horse was to run at Ballarat, the stable had been involved with the Stewards in relation to the use of a nebuliser on a horse on race day. Thus, Mr Laming, Mr Potgieter and Ms Mercer should have been on full alert as to the importance of ensuring that treatment was not given immediately before or on race day.

VRT Dismissal Decision, p 6 Supreme Court Reasons, [77]-[78]

Approximately one week before the commencement of the hearing of Charge 1, the Stewards reinterviewed Ms Mercer. As a result, the Stewards accepted that Ms Mercer had made an honest mistake in injecting the horse with cobalt on race day.

VRT Dismissal Decision, p 6 Supreme Court Reasons, [77]-[78]

Cobalt was administered on Wednesday 23 May 2018 by means of a vitamin injection, albeit one given in

Associated with that error (the administration of cobalt) was a virtually complete absence of records at the time and the lack of any adequate means of indicating which horse or horses were to race on a particular day.

VRT Dismissal Decision, p 6 Supreme Court Reasons, [77]-[78]

Nothing seemed to have been learned from the nebuliser incident three months previously.

Neither Mr Laming, nor his foreman, Mr Potgieter, were present at the Clyde stables prior to the Horse being removed from the stables, put in the float and taken to Ballarat races on the day in question. Neither attended at Ballarat. When interviewed by the Stewards almost four weeks later, Mr Laming did not even seem to realise that no relevant records had been kept for about six weeks.

VRT Dismissal Decision, pp 6-7 Supreme Court Reasons, [77]-[78]

Ms Mercer gave evidence that she could not rule out the possibility that she had given the Horse a vitamin injection on the morning of 23 May 2018 at some before the horse was placed in the float and taken to Ballarat. She had some computer problems which she said explained the lack of any records. The positive reading probably emanated from a vitamin injection erroneously administered by Ms Mercer on the morning of 23 May 2018.

VRT Dismissal Decision, p 7 Supreme Court Reasons, [77]-[78]

On the morning of 23 May 2018 the computer program in relation to the administration of substances and the like was not working and had not for some time.

There was a totally inadequate system, if it could be called that, in relation to indicating which horses were about to race and when.

Given the contents of his interview on 20 June 2018 and his evidence, there was a high degree of ignorance on the part of Mr Laming as to the particulars of what was going on in his stables.

Early in her employment with Mr Laming and even before the arrival of Mr Potgieter as foreman, Ms Mercer had been instructed by Mr Laming not to administer injections on race day. She remained aware of this. She was familiar with the injection process and, over the years, had administered thousands of injections.

VRT Dismissal Decision, p 7 Supreme Court Reasons, [77]-[78]

The stable practices of Mr Laming were careless, inadequate and marked by indifference as to what was happening. The term 'shambolic' is appropriate.

Ms Mercer knew that there was to be no administration to a horse on a day that it was racing. She had been instructed by Mr Laming concerning this early in her employment, if not virtually at the outset.

In his evidence before the Tribunal, Mr Laming stated that he had no direct contact with Ms Mercer. He did not speak to her about treatments. He did not check back with Mr Potgieter. He did not check the treatment diary. Mr Laming gave Mr Potgieter open licence. He was aware that Mr Potgieter delegated work to Ms Mercer. He did not engage in active supervision of them and had confidence in their abilities. Mr Laming knew that Mr Potgieter would be absent on the Wednesday in question and that he left instructions when he was not at work.

VRT Dismissal Decision, p 12 Supreme Court Reasons, [80]

The interviews with Mr Potgieter give some idea of the haphazard 'random' regime of injection giving that existed and the apparent absence of any direct control or intervention provided by Mr Laming. This is consistent with his absence of anything like adequate knowledge of what was occurring in his stables, particularly as demonstrated in his original interview, not that his level of knowledge seemed to improve greatly thereafter.

VRT Dismissal Decision, pp 12-13 Supreme Court Reasons, [80]

This way of running stables was shoddy and careless.

Mr Laming invested authority in Ms Mercer to administer injections and instructed her not to administer such injections on race day. This occurred at the time of, or shortly after, the commencement of her employment. She understood it. Thereafter, he effectively left her to her own devices, and she administered thousands of injections over the years. This occurred before and after the arrival of Mr Potgieter.

VRT Dismissal Decision, p 13 Supreme Court Reasons, [80]

There is no suggestion that Mr Laming authorised Ms Mercer to administer the injection on race day. There is no suggestion that he exerted a capacity of control or influence in order to direct Ms Mercer so to do. There is no suggestion that he intended, contemplated or desired that any such authority or direction, if it existed, would be acted upon. However dated it may have been, any general direction given to Ms

Mercer was not to administer injections on race day.

VRT Dismissal Decision, p 14 Supreme Court Reasons, [81]

As for the particular injection on 23 May 2018, there is no suggestion that Mr Laming even knew of the injection being administered, much less authorising or exerting a capacity of control or influence so as to direct Ms Mercer so to do. Explicitly and by inference, Ms Mercer had been vested with authority to

administer injections, but specifically not on race days.

VRT Dismissal Decision, p 14 Supreme Court Reasons, [81]

There was a clear instruction as to non-administration on race day. There is no suggestion that Ms Mercer did not understand or appreciate this. The contrary is quite clear. What seems to have occurred is a wilful

administration, but one performed accidentally on a race day.

VRT Dismissal Decision, p 14 Supreme Court Reasons, [81]

Mr Laming's stable practices were careless, inadequate and displayed indifference. They have been

There was a real lack of checks and balances in Mr Laming's system (including a lack of record-keeping).

This is not a situation of one slip made in otherwise a well-run carefully operated stable.

Mr Laming had been a licensed trainer for most of his adult life.

The failure to keep proper stable records was particularly pronounced.

The 'wrong-box incident' of February 2018 did not involve a breach of the Rules.

Ms Mercer had mistakenly injected the Horse with vitamins on 23 May 2018.

The Horse was trained by Mr Laming and ran in the Race on 23 May 2018.

A pre-race urine sample taken from the horse proved positive to cobalt in excess of the prescribed limit.

At the relevant time, Mr Laming conducted two training establishments. These matters arose at Clyde.

Mr Marnu Potgieter was Mr Laming's licensed assistant trainer, or foreman. Ms Amy Mercer was a licensed stable hand employed by Mr Laming. She had been so employed for four or five years at the relevant time, and indeed was so employed before the arrival of Mr Potgieter. Her duties included the administration of injections and the written recording of these.

VRT Dismissal Decision, p 6 Supreme Court Reasons, [77]-[78]

The Horse was to run at Ballarat on Wednesday 23 May 2018.

Approximately three months before the Horse was to run at Ballarat, the stable had been involved with the Stewards in relation to the use of a nebuliser on a horse on race day. Thus, Mr Laming, Mr Potgieter and Ms Mercer should have been on full alert as to the importance of ensuring that treatment was not given immediately before or on race day.

VRT Dismissal Decision, p 6 Supreme Court Reasons, [77]-[78]

Approximately one week before the commencement of the hearing of Charge 1, the Stewards reinterviewed Ms Mercer. As a result, the Stewards accepted that Ms Mercer had made an honest mistake in injecting the horse with cobalt on race day.

VRT Dismissal Decision, p 6 Supreme Court Reasons, [77]-[78]

Cobalt was administered on Wednesday 23 May 2018 by means of a vitamin injection, albeit one given in error.

Associated with that error (the administration of cobalt) was a virtually complete absence of records at the time and the lack of any adequate means of indicating which horse or horses were to race on a particular day.

VRT Dismissal Decision, p 6 Supreme Court Reasons, [77]-[78]

Nothing seemed to have been learned from the nebuliser incident three months previously.

Neither Mr Laming, nor his foreman, Mr Potgieter, were present at the Clyde stables prior to the Horse being removed from the stables, put in the float and taken to Ballarat races on the day in question. Neither attended at Ballarat. When interviewed by the Stewards almost four weeks later, Mr Laming did not even seem to realise that no relevant records had been kept for about six weeks.

VRT Dismissal Decision, pp 6-7 Supreme Court Reasons, [77]-[78]

Ms Mercer gave evidence that she could not rule out the possibility that she had given the Horse a vitamin injection on the morning of 23 May 2018 at some before the horse was placed in the float and taken to Ballarat. She had some computer problems which she said explained the lack of any records. The positive reading probably emanated from a vitamin injection erroneously administered by Ms Mercer on the morning of 23 May 2018.

VRT Dismissal Decision, p 7 Supreme Court Reasons, [77]-[78]

On the morning of 23 May 2018 the computer program in relation to the administration of substances and the like was not working and had not for some time.

There was a totally inadequate system, if it could be called that, in relation to indicating which horses were about to race and when.

Given the contents of his interview on 20 June 2018 and his evidence, there was a high degree of ignorance on the part of Mr Laming as to the particulars of what was going on in his stables.

Early in her employment with Mr Laming and even before the arrival of Mr Potgieter as foreman, Ms Mercer had been instructed by Mr Laming not to administer injections on race day. She remained aware of this. She was familiar with the injection process and, over the years, had administered thousands of injections.

VRT Dismissal Decision, p 7 Supreme Court Reasons, [77]-[78]

The stable practices of Mr Laming were careless, inadequate and marked by indifference as to what was happening. The term 'shambolic' is appropriate.

Ms Mercer knew that there was to be no administration to a horse on a day that it was racing. She had been instructed by Mr Laming concerning this early in her employment, if not virtually at the outset.

In his evidence before the Tribunal, Mr Laming stated that he had no direct contact with Ms Mercer. He did not speak to her about treatments. He did not check back with Mr Potgieter. He did not check the treatment diary. Mr Laming gave Mr Potgieter open licence. He was aware that Mr Potgieter delegated work to Ms Mercer. He did not engage in active supervision of them and had confidence in their abilities. Mr Laming knew that Mr Potgieter would be absent on the Wednesday in question and that he left instructions when he was not at work.

VRT Dismissal Decision, p 12 Supreme Court Reasons, [80]

The interviews with Mr Potgieter give some idea of the haphazard 'random' regime of injection giving that existed and the apparent absence of any direct control or intervention provided by Mr Laming. This is consistent with his absence of anything like adequate knowledge of what was occurring in his stables, particularly as demonstrated in his original interview, not that his level of knowledge seemed to improve greatly thereafter.

VRT Dismissal Decision, pp 12-13 Supreme Court Reasons, [80]

This way of running stables was shoddy and careless.

Mr Laming invested authority in Ms Mercer to administer injections and instructed her not to administer such injections on race day. This occurred at the time of, or shortly after, the commencement of her employment. She understood it. Thereafter, he effectively left her to her own devices, and she administered thousands of injections over the years. This occurred before and after the arrival of Mr Potgieter.

VRT Dismissal Decision, p 13 Supreme Court Reasons, [80]

There is no suggestion that Mr Laming authorised Ms Mercer to administer the injection on race day. There is no suggestion that he exerted a capacity of control or influence in order to direct Ms Mercer so to do. There is no suggestion that he intended, contemplated or desired that any such authority or direction, if it existed, would be acted upon. However dated it may have been, any general direction given to Ms Mercer was not to administer injections on race day.

VRT Dismissal Decision, p 14 Supreme Court Reasons, [81]

As for the particular injection on 23 May 2018, there is no suggestion that Mr Laming even knew of the injection being administered, much less authorising or exerting a capacity of control or influence so as to direct Ms Mercer so to do. Explicitly and by inference, Ms Mercer had been vested with authority to administer injections, but specifically not on race days.

VRT Dismissal Decision, p 14 Supreme Court Reasons, [81]

There was a clear instruction as to non-administration on race day. There is no suggestion that Ms Mercer did not understand or appreciate this. The contrary is quite clear. What seems to have occurred is a wilful administration, but one performed accidentally on a race day.

VRT Dismissal Decision, p 14 Supreme Court Reasons, [81]

Mr Laming's stable practices were careless, inadequate and displayed indifference. They have been rightly described as 'shambolic'.

There was a real lack of checks and balances in Mr Laming's system (including a lack of record-keeping).

This is not a situation of one slip made in otherwise a well-run carefully operated stable.

Mr Laming had been a licensed trainer for most of his adult life.

The failure to keep proper stable records was particularly pronounced.

The 'wrong-box incident' of February 2018 did not involve a breach of the Rules.

Ms Mercer had mistakenly injected the Horse with vitamins on 23 May 2018.

The Horse was trained by Mr Laming and ran in the Race on 23 May 2018.

A pre-race urine sample taken from the horse proved positive to cobalt in excess of the prescribed limit.

[1] In these Reasons definitions are shown through the bolding of names or terms. Italics and bold are used to define cases.

[2] [2022] VCAT 55.

[3] Laming v Racing Victoria Limited [2022] VSC 813.

[6] Introduced by the Racing Amendment (Integrity & Disciplinary Structures) Act 2018 (Vic) (RAIDS Act).

[7] Judgment [37], [41], [54], [60], [104], [131] and [132], italics in original and footnotes omitted.

[8] The RAIDS Act 'effected a substantial revision of the pre-existing integrity and disciplinary regimes governing thoroughbred racing, harness racing and greyhound racing in Victoria. It made large and important amendments to the [Racing Act], which came into operation, relevantly, on 1 August 2014' (Judgment [12]). One of those changes was to establish the VRT and give VCAT only the review powers contained in section 83OH of the Racing Act (Judgment [20], [31]-[33]).

[14] Erythropoietin, a naturally occurring hormone that stimulates red blood cell production. It is used to enhance performance.

[15] Judgment [99]-[102], footnotes omitted.

[18] Laming's Written Submissions [28] which included reference to R v Di Simoni [1981] HCA 31 and DPP v Newman & Turnbull [1997] 1 VR 146.

[19] See discussion in Laming's Written Submissions [8]-[12].

[20] [2022] HCA 13.

[23] RVL's Written Submissions [32] and Laming's Written Submissions [45]-[65].

[24] [2018] VCAT 291.

[27] Laming's Written Submissions [66].

[28] Kavanagh No 2 [18]-[19], footnotes omitted.

[29] Laming's Written Submissions [6]-[7].

[30] RVL's Written Submissions [68]-[70].

[31] Laming's Written Submissions [37]-[44].

[32] RVL's Written Submissions [71]-[72].

[33] Laming's Written Submissions [21]-[22].

[34] RVL v Gelagotis, VRT 12 November 2021.

[35] Racing Victoria Stewards v McPherson, RADB, 22 August 2018.

[36] Corstens v Racing Victoria Ltd [2010] VCAT 1106. Altrenogest is a progestin which is widely used in veterinary medicine to suppress or synchronize estrus in horses and pigs.

[37] That earlier version applied until 1 October 2002 - Laming's Submissions [18].

[38] Laming's Written Submissions [23].

[40] RVL v Mitchell Freedman, VRT 16 December 2021.

[41] RVL v Archie Alexander, VRT 1 February 2022.

[42] RVL v Archie Alexander, VRT 9 May 2023.

[43] Liability decision given on 25 February 2021.

[44] RVL v Keating VRT 5 September 2023.

[46] [2008] VRAT 6 (6 June 2004).

[47] Kavanagh No 2 [15]-[16] and [47].

[55] Relevantly summarised at [10] in Kavanagh No 2.

[58] There was also a breach of AR 104(1) with a fine of $300. That was not the subject of the review.

[66] RVL's Reply [27], referring to Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520.

[68] [2017] VSCA 334 [45].

[69] McDonough, quoted in the first paragraph.

[70] RVL's Written Submissions [44]-[48].

[75] They were also described in VCAT Laming [39]-[51].

[77] Laming's Written Submissions [11]-[17] and [24].

[80] RVL's Written Submissions [51]-[52].

[81] Ibid [54]-[56], italics in original.

[86] Laming's Written Submissions [67]-[71].

[88] Laming's submissions on penalty filed with the VRT - TB 7-14.