McCarthy v Harness Racing New South Wales - [2024] NSWSC 865 - NSWSC 2023 case summary — Zoe

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McCarthy v Harness Racing New South Wales

[2024] NSWSC 865

Supreme Court of NSW|2023-09-14|Before: Walton J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2023-09-14

Before

Walton J

Catchwords

[2020] HCA 34 Attwood v The Queen (1960) 102 CLR 353
[1960] HCA 15 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57
[2006] HCA Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
[2001] HCA 25 Bayley v Nixon [2015] VSC 744 Briginshaw v Briginshaw (1938) 60 CLR 336

Source

Original judgment source is linked above.

Catchwords

[2020] HCA 34 Attwood v The Queen (1960) 102 CLR 353[1960] HCA 15 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57[2006] HCA Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321[2001] HCA 25 Bayley v Nixon [2015] VSC 744 Briginshaw v Briginshaw (1938) 60 CLR 336[1938] HCA 34 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194Day v Harness Racing New South Wales (2015) 90 NSWLR 764[2015] NSWCA 324 DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 Director General of Department of Community ServicesRe Sophie [2008] NSWCA 250 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124[2008] HCA 13 Elnduct Systems Pty Ltd v 3D Safety Services Pty Ltd (2015) 90 NSWLR 451[2015] NSWCA 284 Fox v Percy (2003) 214 CLR 118[2003] HCA 22 Golden v V'landys (2016) 339 ALR 610[2016] NSWCA 300 Green v Daniels (1977) 13 ALR 1[1977] HCA 18 Greyhound Welfare and Integrity Commission v Bell [2023] NSWSC 1150 IAG Ltd v Sleiman (2017) 82 MVR 1[2010] HCA 1 Markarian v The Queen (2005) 228 CLR 357

Judgment (37 paragraphs)

[1]

These Proceedings

This matter came before this Court in the duty list on 1 September 2023. The plaintiff moved on a Notice of Motion ("the Motion") filed that day which sought an interlocutory injunction under s 66(4) of the Supreme Court Act 1970 (NSW) restraining the first defendant from acting on or otherwise carrying into effect the decision.
The Court granted an interlocutory injunction restraining the first defendant from acting on or otherwise carrying into effect the decision until further order and made the proceeding returnable before the Court at 2pm on Monday, 4 September 2023.
Ultimately, an injunction was granted upon the basis that the matter would proceed to a hearing of an application for judicial review. The interlocutory injunction continues following that hearing to the date of this judgment.
In the final hearing, Ms VM Heath appeared for the plaintiff (although written submissions were filed by Mr D Dalton SC and Ms VM Heath). The first defendant was represented by Mr O Jones. The Tribunal entered a submitting appearance.
By an Amended Summons filed on 7 September 2023, the plaintiff sought judicial review of the decision. The plaintiff sought the following orders to quash or set aside the decision of the Tribunal (putting aside the application for an interlocutory injunction): "(1) An order under s 69 of the Supreme Court Act 1970 in the nature of certiorari, quashing or setting aside the decision of Racing Appeals Tribunal of 30 August 2023. (2) An injunction under s 66(1) of the Supreme Court Act 1970 restraining Racing New South Wales from acting on or otherwise carrying into effect the decision of the Racing Appeals Tribunal's decision of 30 August 2023 until determination of these proceedings. …. (4) A declaration that the decision of the Racing Appeals Tribunal's decision of 30 August 2023 is invalid. (5) Alternatively, an order that the matter be remitted to the Racing Appeals Tribunal differently constituted for redetermination according to law. (6) An order that the first defendant pay the plaintiff's costs of the proceedings. (7) Other or further orders."
The grounds upon which the plaintiff sought relief from the decision under the Amended Summons were as follows: 1. The Tribunal has erred misdirecting itself as to the question of culpability it was required to address and as to the standard of proof of disputed facts and, by inference from the result, must have applied a wrong test with respect to the application of a witness's credibility to the factual determination. This error is a jurisdictional error and is also error on the face of the record. ("Ground 1"). 2. Further, and in the alternative, the Tribunal's conclusion is illogical, so illogical as to be irrational, given the Tribunal's findings as to the evidence of the two experts and upon the findings of fact made by the Tribunal in relation to the plaintiff's good character and honesty and the facts the Tribunal found to be established on the plaintiff's case at [218], [219], [220], [221], [223], [225], [226], [228], [229], [230], [315] and rejecting alternative possible sources for the positive swab at [222], [315] and its finding that specific deterrence was not required [274]-[276]. This error is a jurisdictional error and is also error on the face of the record. ("Ground 2"). 3. The Tribunal has impermissibly fettered the exercise of its discretion on penalty and erred in finding that precedent and the Harness New South Wales Penalty Guidelines (2016) ("the penalty guidelines") operated to require it to determine that no penalty other than disqualification was available despite its finding that specific deterrence was not required [274]-[276] and as such has not effectively exercised its jurisdiction and not provided the plaintiff with procedural fairness. This error is a jurisdictional error and is also error on the face of the record. ("Ground 3").
In written and oral submissions, the plaintiff essentially divided the Ground 1 into three separate but related areas. These will be described in more detail later but for present purposes they consisted of contentions that: 1. The Tribunal considered the wrong question of culpability. While the plaintiff submitted he was blameless or of low culpability, and the first defendant submitted that the plaintiff could not prove he was blameless (or had taken every reasonable step to prevent a breach of the rule), the Tribunal was wrong to view its task as to determine culpability as a binary or as a dichotomy between blamelessness and unqualified culpability meriting disqualification. The plaintiff also raised other issues as to culpability discussed below. 2. The Tribunal applied a wrong onus and an erroneous gloss to the applicable standard of proof, stating that "under the Briginshaw principles" the Tribunal must find a comfortable level of satisfaction which it applied to the issue stated at [213] of the decision. 3. By inference from the result, the Tribunal must have applied a wrong test with respect to the application of a witness's credibility, or failed to apply a correct test, with respect to the application of the plaintiff's credibility to the factual determination.
An additional complication in considering the plaintiff's grounds of appeal arose as a consequence of written submissions filed by the plaintiff as part of a supplementary note pursuant to leave granted by the Court on 14 September 2023 at the close of the hearing of the matter. The leave given by the Court was to address the applicable test for judicial review on the basis of legal unreasonableness, irrationality, or illogicality in a decision-maker's fact finding process. Outside the scope of that leave, the plaintiff filed on 28 September 2023 submissions going to the merits of the current claim.
That is not a matter of great moment, as the first defendant appeared able, albeit with complaint, to grapple with the further written submissions. However, one product of those written submissions was that the plaintiff interweaved submissions as to legal unreasonableness, illogicality or irrationality, after the close of oral argument, into not only Ground 2 which expressly dealt with that topic but also Grounds 1 and 3. For example, it was contended that the contentions advanced in support of Ground 1 also sustained a case for legal unreasonableness or at least a species of legal unreasonableness, namely, "cases in which the reasoning process has gone badly wrong". In this category it was said "the error is either apparent from the reasons or the reasons fail to explain something that is otherwise inexplicable in context: this may include material inconsistency between primary findings or between primary findings and inferences or conclusions or other unexplained or illogical leaps".
I will address the way the plaintiff developed these submissions further below but note at this juncture that I will ultimately find that it is unnecessary to grapple with the entirety of the arguments of the parties as to the applicable test for judicial review on the basis of legal unreasonableness, irrationality or illogicality in the decision-makers fact finding process because of my conclusion that the Tribunal's decision did not involve illogicality or irrationality and its findings cannot be described, when properly understood, as legal unreasonableness either on its face or, as the plaintiff sought to advance, in their submissions.
This judgment concerns the plaintiff's application for judicial review, save for the application for interlocutory relief.

[2]

The HR Act

Pursuant to s 22 of the HR Act, the first defendant is empowered to make rules not inconsistent with that Act for or with respect to the control and regulation of harness racing. [5]
As mentioned earlier, the AHRR are rules made by the national body, Harness Racing Australia Inc, and adopted by the first defendant as published from time to time, pursuant to s 23(2) of the HR Act. [6] As observed by Basten JA in Day v Sanders; Day v Harness Racing New South Wales [2015] NSWCA 324; (2015) 90 NSWLR 764 ("Day (No 2)") at [23] the AHRR: "are extremely detailed and bear every indication (both by way of language and structure) of having been drafted by persons familiar with statutory drafting techniques."
Section 10(2)(i) of the HR Act empowers the first defendant to impose on a person registered by it or the owner of a harness racing horse a penalty for contravention of the rules.
The AHRR and Local Rules have statutory consequences, and statutory limitations, under ss 10(2)(i), 21, 22 and 23 of the HR Act: Racing New South Wales v Fletcher [2020] NSWCA 9 at [39]-[43]; Golden v V'landys [2016] NSWCA 300; (2016) 339 ALR 610 at [60]-[62]; NSW Thoroughbred Racing Board v Waterhouse & Anor (2003) 56 NSWLR 691 at [35].
Section 10(2) of the HR Act provides: (2) Without limiting subsection (1), HRNSW has power to do the following - (a) investigate and report on proposals for the construction of new racecourses, and inspect new racecourses or alterations or renovations to existing racecourses, (b) supervise the activities of harness racing clubs, persons registered by HRNSW and all other persons engaged in or associated with harness racing, which inquire into and deal with any matter relating to harness racing and to refer any such matter to stewards or others for investigation and report and, without limiting the generality of this power, to inquire at any time into the running of any harness racing horse on any course or courses, whether or not a report concerning the matter has been made or decision arrived at by any stewards, (d) direct and supervise the dissolution of a harness racing club that ceases to be registered by HRNSW, (e) appoint an administrator to conduct the affairs of a harness racing club, (f) disqualify a harness racing horse from participating in a race, (g) exclude from participating in a race a harness racing horse not registered under the rules, (h) prohibit a person from attending or taking part in a harness racing meeting, (i) impose a penalty on a person registered by it or on an owner of a harness racing horse for a contravention of the rules, (j) consult, join, affiliate and maintain liaison with other associations or bodies, whether in the State or elsewhere, concerned with harness racing, (k) enter into contracts, (l) acquire, hold, take or lease and dispose of real and personal property whether in its own right or as trustee, (m) borrow money, (n) order an audit of the books and accounts of a harness racing club by an auditor who is a registered company auditor nominated by HRNSW, (o) scrutinise the constitutions of harness racing clubs to ensure they conform to any applicable Act and the rules and that they clearly and concisely express the needs and desires of the clubs concerned and of harness racing generally, (p) publish material, including periodical publications, to inform the public about matters relating to harness racing, whether in the State or elsewhere, (q) undertake research and investigation into all aspects of the breeding of harness racing horses and of harness racing generally, (r) take such steps and do such acts and things as are incidental or conducive to the exercise of its powers and the performance of its functions.

[3]

AHRR

The submissions of the plaintiff adequately describe the applicable rules for this matter and are adopted for the purposes of this judgment.
The AHRR is set out in 24 parts covering various topics for the organisation and control of harness racing including the appointment, powers and functions of stewards (AHRR Pt 2), licences (AHRR Pt 4) and inquiries and investigations (AHRR Pt 11).
The language of the rules describes the breach of a rule by a person to whom they apply as an "offence". As observed in note (2) to the AHRR Dictionary: "Offence provisions are found throughout the rules and are not confined to those in Part 14 or under the bold type heading "Offences". An offence provision is identified by use of the words in it, or with reference to it, that failure to comply or contravention of it makes a person guilty of an offence." (AHRR r 312(2) provides that notes in the Dictionary are explanatory and do not form part of the rules.)
As the note indicates, Pt 14 of the AHRR sets out "general offences", being various rules regulating conduct at or about harness races or relating to the harness racing industry. AHRR r 255 provides: A person who fails to comply with any provision of a rule contained in Pt 14 is guilty of an offence.
AHRR r 239A provides: A person whose conduct or negligence has led or could lead to a breach of the rules is guilty of an offence. (The plaintiff was not charged with a breach of this rule.)
As noted above, the "offence" provisions are not limited to P 14 of the AHRR, and "offence" provisions occur throughout the rules. The "offence" provisions relevant to this case are in Pt 12, headed "Prohibited Substances" (the relevant rules are addressed specifically below).
Part 15 of the AHRR deals with penalties. AHRR r 256(1) prescribes the consequences of being found "guilty" of "an offence" under the rules as enlivening a discretion to impose one or more of the "penalties" provided by AHRR r 256(2), unless a specific penalty is prescribed by any rule (r 256(3)) or unless the discretion under AHRR r 256(6) is exercised not to impose a penalty or not to even enter a conviction.
AHRR r 256 provides as follows: (1) One or more of the penalties set out in sub rule (2) may be imposed on a person, club or body guilty of an offence under these rules. (2) (a) A fine within the limits fixed by legislation or by the Controlling Body, (b) conditional or unconditional suspension for a period; (c) disqualification, either for a period or permanently; (d) warning off, either for a period or permanently; (e) exclusion from a racecourse, either for a period o permanently; (f) a bar, either for a period or permanently, from training o driving a horse on a racecourse, track or training ground; (g) conditional or unconditional suspension of registration for a period or cancellation of registration; (h) conditional or unconditional suspension of a licence for period or cancellation of a licence; (i) a severe reprimand; (j) a reprimand or caution. (3) Should a rule of its own terms impose a penalty in respect of an offence created by that rule then, subject to any contrary intention expressed or otherwise apparent in that rule, that penalty is the only one which can be imposed in respect of that offence. (4) Penalties, whether under this or any other rule, attach from the time they are imposed, except that the Controlling Body or the Stewards may postpone such attachment. (5) (a) Penalties other than a period of disqualification or a warning off under this or any other rule may be suspended for a period not exceeding two years upon such terms and conditions as the Controlling Body or Stewards see fit; (b) If the offender does not breach any term or condition imposed during the period of suspension, the penalty shall be waived; (c) If the offender breaches any term or condition imposed during the period of suspension then, unless the Controlling Body or Stewards otherwise order, the suspended penalty thereupon comes into force and penalties may also be imposed in respect of any offence constituted by the breach. (6) Although an offence is found proven a conviction need not necessarily be entered or a penalty imposed. (7) Before an offence is found proven, the following conditions shall be satisfied:- (a) the offender shall be afforded reasonable opportunity to cross examine witnesses, make submissions, present evidence to the Controlling Body or the Stewards as the case may be; (b) those submissions or evidence shall be taken into account; (c) evidence relied upon in establishing the offence shall be identified; (d) in a matter before the Stewards, those Stewards who finally determine that an offence has been committed shall be present during the whole of the proceedings.

[4]

Judicial Review

The parties advanced submissions as judicial review in the present context which, in my view, were sound.
An application for judicial review is not an occasion for a merits review of the administrative decision below and is strictly limited to grounds that may support relief under s 69 the Supreme Court Act in the nature of prerogative relief, under s 66(1) of the Act in the nature of injunctive relief or under s 75 (or in the Court's inherent jurisdiction), declarations of right.
The plaintiff is entitled to succeed whether he demonstrates 'error on the face of the record' or 'jurisdictional error'; there is no privative clause denying remedy for 'mere' error of law (as there was in Quinn v Commonwealth Director of Public Prosecution (2021) 106 NSWLR 154; [2021] NSWCA 294 ("Quinn")) and any legal error of this Tribunal is jurisdictional in nature because, unlike the Court in Quinn, the RATA does not give the Tribunal authority to decide otherwise than in accordance with the law.
Further, the plaintiff placed reliance upon James McDonald v Racing New South Wales [2017] NSWSC 1511. In that case, Rein J (at [77]) laid down principles regarding judicial review of the imposition of a penalty by a Tribunal exercising power in a comparable jurisdiction to the present as follows: "7 There are some further matters that are agreed or not contested by the parties: …(4) The assessment of a penalty under the Rules of Racing has discernible or apparent legal effect upon rights and is, therefore, amenable to an order of certiorari: see Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 159 per Brennan CJ, Gaudron and Gummow JJ for the circumstances where certiorari is available. …(6) That the 'record' is confined to documentation initiating the application, pleadings, the orders made, and the reasons of the inferior Court or Tribunal (see s 69(4) of the Supreme Court Act 1970 (NSW) and Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 at [89]), but does not include the evidentiary material placed before the Tribunal: see Craig v State of South Australia (1-95) 184 CLR 163 pp 180 - 181 ('Craig'). (7) That the ARR and LR are rules akin to a professional regulation regime and are not criminal in nature: see Day v Harness Racing New South Wales (2014) 88 NSWLR 594 (Day), [70] per Leeming JA, with whom McColl JA and Macfarlan JA concurred, dealing with similar rule making."

[5]

The Decision

The Tribunal commenced its decision by noting that it was considering a severity appeal only. It noted the grounds of appeal recorded the only ground being the penalty was excessive.
The Tribunal then identified the issues between the experts requiring consideration, each of which concerned explanations for the level of cobalt detected in the horse as follows: "8. While they will be expanded upon later, those issues are: 1. Gastro 2. Dehydration 3. Hemoplex 4. Horse not processing cobalt through its system."
At the same time the Tribunal identified issues which were not pressed in that respect as follows: "9. It is helpful if the issues no longer pressed were also summarised and they were: 1. Feeding and supplement regime 2. Environment 3. Vitamin B12 4. False positive for B12 5. Urine concentration 6. Creatinine 7. Administration studies without known administration basis 8. Accumulation of cobalt in a horse 9. Manufacturer error in feed 10. Clumping in feed 11. Need for further urine samples from the McCarthy stables 12. Need for further blood samples from the McCarthy stables."
Under the heading "Issues" the Tribunal discussed the issues presented to it by the parties as follows: "14. The appellant has put his character in evidence, not only for the usual purposes of his subjectives and therefore possible discounts on any penalty, but also in respect of the issue of the actual breach and therefore whether he is to be believed on his evidence that goes to his conduct around the breach. 15. Essentially, the case for the appellant is that under the McDonough principles, he should be found to be blameless and therefore penalised under category 3. The respondent says that the appellant has not met the burden of proof that he carries and he should be dealt with under McDonough category 2."
The Tribunal stated counsel for the plaintiff identified three options [10] which were before the stewards which reduced to two before the Tribunal (the third was no longer pressed). Those options were said to be encompassed by the list of issues set out above (presumably) a reference to the issues appearing in [68] of the judgment. Those options were as follows: "17. Those options identified are: 1. The horse received cobalt from some other source in addition to what has been disclosed, being the feed regime and the treatments on the three consecutive days. 2. The horse received the three treatments as disclosed, the feed and the supplementation as disclosed, and the horse is not processing through its system pharmacologically or pharmacokinetically cobalt properly, and therefore it is not expelling cobalt as you would expect for horses in ordinary health or physiological action per medium of the studies. 3. The horse received the three treatments as described and the feed regime had cobalt concentrations in it which were far in excess of the manufacturer's labelling and that has resulted in the high reading. This option was not pressed on appeal."

[6]

GROUNDS OF APPEAL

The plaintiff identified at a level of generality that his case was constituted by 5 primary errors: treating the categories in McDonough ([2008] VRAT 6, unrep) ("McDonough") as an a priori inflexible rule (review Grounds 1 and 3), requiring proof of matters that legally did not need to be determined (Grounds 1 and 3), fettering the exercise by fixing a penalty starting point based on the erroneous categorisation (Ground 3), viewing culpability as a binary (Ground 1) and expressly and implicitly excluding consideration of the full range of options under AHRR r 256 (Ground 3). However, that broad description could lead to oversimplification of the plaintiff's case and needs to be supplemented by a summary of the plaintiff's submissions, particularly as to legal unreasonableness, irrationality and illogicality which I have earlier referred to and which will be expanded upon below.

[7]

The plaintiff's submissions

In broad terms, the plaintiff accepted that there was an overlap between the respective grounds. In Ground 1, the plaintiff relied upon three errors by the Tribunal resulting in jurisdictional error: the Tribunal asked itself the wrong question about culpability; it answered the question with too much stringency and its findings as to credibility were not reflected in the outcome of the proceedings.
The plaintiff's particular submissions in that respect were as follows:

[8]

Wrong questions of culpability 1. The Tribunal considered the wrong question of culpability. While the plaintiff submitted he was blameless (at [235]) or of low culpability, and the first defendant submitted that the plaintiff could not prove he was blameless (at [237]) or had taken every reasonable step to prevent a breach of the rule, the Tribunal was wrong to view its task as to determine culpability as a binary or as a dichotomy between blamelessness and unqualified culpability meriting disqualification. Assessment of culpability required an open-minded assessment of all the facts relevant to the moral blameworthiness of the plaintiff's conduct, including that culpability may not be an absolute and that conduct might be blameless or on a spectrum that tended towards blamelessness or very low moral culpability. 2. The Tribunal asked itself a second wrong question on culpability to the effect that the plaintiff had to positively "explain the reading" (at [260], [261] and [272]) as opposed to explaining his conduct and the facts and circumstances of the offending in respect of any matter he wanted to call to the Tribunal's attention and that was contested. 3. The Tribunal was wrong to view determination of culpability as requiring a choice between stark alternatives that the 'cause' of the positive swab was known but guilty, unknown (and presumed guilty) or known and blameless. In any event, determining culpability did not depend on determination of the scientific explanation of the mechanism, although that could be relevant. It was wrong to draw such an inflexible division. 4. The Tribunal erred in holding the plaintiff had to "demonstrate how the positive swab came about" in the sense of proving the scientific cause rather than giving an acceptable account of his own conduct (as illustrated in McDonough when properly understood). 5. The Tribunal accepted the plaintiff only gave the horse what he said he did, when he said he did and for the proper reasons he gave and the Tribunal had excluded from availability the only other alternatives of environmental exposure [12] or third party action. 6. Alternatively, the plaintiff submitted that no other source of cobalt was open, and the plaintiff's innocent conduct was the only available cause if the source of the substance was unknown. 7. Or to the extent such classification was simply informative. 8. Correctly applying what his Honour Judge Williams said in McDonough, culpability had to be considered as a matter of degree on the facts and in the circumstances of a particular case. The error of the Tribunal was to misuse McDonough to constrain it as seeing the matter as black and white, rather than to consider shades of grey. 9. Counsel for the plaintiff made the following submissions re McDonough: "So even though the trainer had no idea how the substance came to be in the horse, was not able to provide the Tribunal with any explanation, he was dealt with because of his good character and because the Tribunal accepted that he didn't know and that he hadn't had any part in actively breaching the rule the Tribunal dealt with the trainer on the basis that he was blameless or of low culpability and imposed no penalty. The horse was disqualified because that was required automatically under the rules but otherwise no penalty was imposed on the trainer. The plaintiff's submissions to both the stewards and the Tribunal in this case followed along a theme as set out in McDonough about discussing it in those terms but what was done by the Tribunal in this case was to ignore how the Tribunal in McDonough actually dealt with the matter and take up the idea of categories and applying them in a strict way that certainly Judge Williams never envisioned and was contrary to what the judge himself had written. As I've already read out to your Honour the judge said on at least three occasions, two of them underlined, that the idea of categories was something general or generally and the actual result that obtained in McDonough didn't follow the categories at all. It followed his Honour's determination of culpability on all the facts and circumstances that his Honour found to exist examining the facts of the particular case. That was the approach the plaintiff sought here but was not the approach the Tribunal took. … The Tribunal looked at the universe of possibilities. So there was essentially, as described by the quoting Justice Lloyd that was referred to in McDonough, the universe of possibilities was really the plaintiff gave the horse a relevant dose that was more than he said; the plaintiff gave the horse a dose that was only what he said; someone else had given something or the horse had got it from the environment. The Tribunal ruled out three of those possibilities and positively accepted that the plaintiff had only given what he said he gave the horse and for the reasons he said he gave it and what he said he did. So the Tribunal ruled out, ruled out of its consideration that a third party had administered something. It did not accept, it rejected the idea that the plaintiff had given something other than what he said he did, and it ruled out of its consideration that the horse had got it from the environment. In those circumstances both the plaintiff's conduct was known and was accepted by the Tribunal but if it was relevant for the Tribunal to understand the source of the cobalt was also known." 1. The plaintiff's submissions referred to the availability of not entering a conviction as appropriate given the additional factor of good character and otherwise asked for consideration of a reprimand or caution or a short period of suspension. That is, the plaintiff's submissions suggested the availability of gradations of finding in respect to culpability that required the Tribunal to consider the grey. This is not, as the first defendant suggests, some new case put on review. 2. It is true that there was not an identified dispute about principle in the submissions the parties made. However, the error has emerged from the Tribunal's decision. 3. Further in S395, Gleeson CJ identified (at [11]-[14]) that the appellant sought to make a case on a quite different factual basis that would have required different evidence and entirely different considerations. That is not the position here. In this case, the plaintiff identified legal errors in how the Tribunal purported to engage in its statutory task, which was to stand in the shoes of the decision-maker and decide for itself whether a conviction should be recorded, and any penalty that should be imposed and if so what penalty. There is no new factual case and no new legal case put by the plaintiff here. The plaintiff did not urge on the Tribunal any wrong view of the facts or the law; the plaintiff's written submissions below did not suggest or urge on it the errors now identified in the Tribunal's reasons. 4. The Tribunal was right to say that it was "required to find a penalty appropriate to the facts and circumstances" but talismanic incantation of or reference to a correct test or description of its task does not avoid the error indicated by the rest of that passage in [265]. If the Tribunal had only said the portion emphasised by the first defendant, or had it actually acted only on that injunction, it would not have fallen into error. The passage before and after the emphasis demonstrates five of the errors of which the plaintiff complains. 5. An environmental source was not an open or available conclusion because the Tribunal determined that it be disregarded. 6. The issue in this case is that the Tribunal did accept the plaintiff's evidence of his conduct, which was the only relevant issue, and by doing so excluded any other cause of the breach (having already determined to disregard environmental or third-party sources).

[9]

Wrong onus and standard of proof 1. The Tribunal placed a demand on the plaintiff's evidence of some additional stringency in its quality. The "Briginshaw considerations" had no application to anything the plaintiff sought to prove and it was an error of law for the Tribunal to decide that they did. Day (No 2) provides no support for such application, nor does anything in the HR Act, the AHRR, Day (No 1) or any other previous case considering these rules. 2. The first defendant bore the onus of proof to establish any contested fact adverse to the plaintiff on penalty, including any matter capable of being construed as one of aggravation or bearing on the seriousness of the offence or reflecting the need for general or specific deterrence: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [25] ("Olbrich"). Any such adverse fact had to be established on the balance of probabilities but bearing in mind the considerations of cogency of evidence referred to in Briginshaw as necessary to actually persuade the Tribunal of a fact that was alleged to constitute or be integral to serious misconduct. 3. The plaintiff bore the onus of proof to establish any contested fact he wished to call to the Tribunal's attention in mitigation of the offence, including subjective factors personal to himself: Olbrich at [25]. Any such fact had to be established on the balance of probabilities. The Briginshaw considerations do not arise in respect of that evidence. 4. The Tribunal applied a wrong onus and an erroneous gloss to the applicable standard of proof, stating that "under the Briginshaw principles" the Tribunal must find a comfortable level of satisfaction which it applied to the issue stated at [213] of the decision. 5. While it is true that to make a finding of fact the Tribunal must actually be persuaded of its existence and that it is not a matter of mere mathematics, what is necessary to persuade depends on the purpose for which the finding is made (Briginshaw at [361] and [361]-[368]). The requirement of a high degree of cogency of evidence required to persuade a Tribunal of fact of serious misconduct that a person would ordinarily be unlikely to commit is not an applicable consideration on a finding about a fact, whether contested or uncontested, that a person brings forward in explanation or mitigation of a breach. The ordinary civil standard of the balance of probabilities applies with no gloss or principle that some additional cogency is to be looked for in the evidence. 6. The "reasonableness" element of the standard of proof requires attention to the context and consequences of the allegation to be proved. As McHugh J observed (in dissent but not on this point) in cases of very serious allegations in civil cases, the Briginshaw considerations will require satisfaction by a quality of proof almost as high as in a criminal case: Azzopardi v The Queen (2001) 205 CLR 50 at [114]. But such observations have no application to the proof of facts and matters raised by a penitent to be taken into account in explanation or mitigation on the determination of penalty. 7. The Tribunal's framing of the fact finding process misled the Tribunal into a false narrative that it was necessary that all disputed issues of fact be resolved for or against the plaintiff: Weininger v The Queen (2003) 212 CLR 629 at [19]. 8. In the context of the Tribunal's multiple inapposite references to Briginshaw, or "the requisite standard" and cognate expressions regarding comfortable satisfaction (at [213]-[214] and [237]), the Tribunal's failure to accept the plaintiff's expert's positive opinion that was fortified by relevant concessions by the first defendant's expert leads to an inference that the Tribunal did not apply a correct standard of proof on such facts as the plaintiff did seek to prove. 9. As to the first defendant's submissions that the issue of onus and standard of proof was not rehearsed by the plaintiff before the Tribunal, it was conceded that the plaintiff did accept below, in oral submissions, that Briginshaw would be applied by the Tribunal, "but only in its terms and not to anything to which, by its terms, it is inapplicable or by creating an impermissible third standard of proof or casting some additional onus or burden on the plaintiff". [13] 10. Dr Wainscott's evidence was not put by the first defendant merely to negative the plaintiff's scientific theory but also to positively support an argument of aggravation, whether by deliberate conduct or some negligence. [14] 11. Senior counsel contended that, in McDonough, the positive reading was caused in innocent circumstances given the limited studies regarding boldenone withholding and elimination periods. The regulator's expert opinion in that case was to the effect that, while not agreeing with the trainer's analysis, it was accepted that delayed elimination could not be ruled out (as in this case).The Judge found that because of the positive inference to be drawn from the appellant's good character (as here) the breach was not caused by the fault of the trainer, who was accepted at his word, even though the trainer had no knowledge at all of how the boldenone came to be in the horse and the Judge held the boldenone probably entered the horse during his care. 12. This argument both negatived the first defendant's case of aggravation and raised the plaintiff's case of mitigation. The plaintiff's argument below did not involve the application of any quality of proof requirement against the plaintiff, only the first defendant, and was otherwise consistent with the actual principles in Briginshaw and as explained by the later cases referred to in chief.

[10]

Credibility 1. By inference from the result, the Tribunal must have applied a wrong test with respect to the application of a witness's credibility, or failed to apply a correct test, with respect to the application of the plaintiff's credibility to the factual determination: Attwood v The Queen (1960) 102 CLR 353 at 359; and McDonough. 2. The plaintiff submitted: "The Tribunal accepted that the log book entries were an accurate statement of the dates on which the Hemoplex injections were given and their quantity; found that the plaintiff didn't engage in any suspicious conduct; and the critical finding is at paragraph 222 of the judgment that the Tribunal accepted that the plaintiff gave nothing to the horse other than what he told the stewards he did, that is the three Hemoplex injections and the normal foodstuffs, all of which carried some cobalt but the Hemoplex was the largest contributor to the cobalt load. The Tribunal accepted that Hemoplex was the legitimate and commonly used medication that was properly administered on each of the three occasions documented, that's at 223, and also accepted that appropriate withholding periods were adopted; that the injections were atypically intensive but still legitimate just that they were unusual in terms of what was normally done. The Tribunal accepted that cobalt can be accumulated in the horse, 225, and indeed that was agreed between the parties. The Tribunal accepted at 226 that the November plasma readings, the one in the subsequent race, even though it wasn't over the threshold nevertheless could not be explained by the veterinarians on the basis of the ordinary administration studies as to what was to be expected from healthy horses being given cobalt. So the Tribunal accepted the description that had been given in the plaintiff's submissions before the stewards that this was a clarion call, that there was something wrong with the way this horse was processing, whether it was a question of retaining it abnormally or not eliminating it in a normal fashion and at the expected rate, and that after the Hemoplex was stopped because the plaintiff, as soon as he was aware there was a problem, never returned to using the Hemoplex and completely ceased it from his practice, the horse no longer had any positives for cobalt." 1. The first defendant's expert's theory that the plaintiff had deliberately dosed the horse with undisclosed cobalt at different times than he said (at [82] and [87]) was rejected by the Tribunal for good reason given both the concessions he had made that were undermining of that opinion and the Tribunal's acceptance of the plaintiff's good character and credit as requiring that "he is to be accepted where issues of fact are grey" (at [219]-[220] and [222]). 2. Further, both experts conceded the state of scientific knowledge was still developing and the first defendant's expert conceded he could not exclude the plaintiff's expert's opinion (at [95]). 3. The Tribunal's purported later reversal of its earlier findings at [253]-[254], [263] must have involved a failure to carry through the Tribunal's credibility findings with respect to the plaintiff, including as to any "grey areas" to its assessment of the expert evidence that depended on acceptance or rejection of the plaintiff's evidence, and a failure to apply the Tribunal's highly (and, indeed, conclusively) favourable credit findings to the determination of guilt in the sense of culpability as principle requires.

[11]

The first defendants' submissions

As to Ground 1, the first defendant submitted as follows:

[12]

Assessing culpability by reference to the McDonough categories 1. The plaintiff appeared to challenge the Tribunal's reference to and consideration of the "McDonough categories" in determining the penalty appropriate in his case. He contended that, by applying those categories, the Tribunal asked itself a "wrong question". 2. The plaintiff did not contend during any part of his hearing before the Tribunal that the McDonough categories were irrelevant or should not be applied. To the contrary: 1. The McDonough categories were set out in detail in the submissions of the first defendant before the Tribunal. The plaintiff did not challenge the legal principles there set out, in either his written or oral submissions. 2. The plaintiff accepted the relevance and applicability of the McDonough categories before the Tribunal, but contended that he fell within Category 3, or alternatively Category 2. 3. The Tribunal adopted that approach. There was no challenge to that aspect of its decision. Nor was there any dispute as to principles to be applied in the severity appeal. 4. The plaintiff accepted in relation to Ground 3 of his claim for review that both parties before the Tribunal addressed the facts of the case on the basis of the McDonough categories. 1. As a result, pursuant to the well-established approach identified by Gleeson CJ in S395, it is not open to the plaintiff to contend that the Tribunal committed an error of law or jurisdictional error in utilising the McDonough categories in the way that it did. 2. There is no basis to conclude that the Tribunal adopted a binary approach in which it did not consider all facts relevant to moral blameworthiness. 3. Consistent with the Tribunal's decision to determine whether the plaintiff fell into Category 3 of the McDonough principles, having considered the McDonough categories, the Tribunal then said at [265] of the decision: "265. The Tribunal having determined that McDonough category 2 applies is required to find a penalty appropriate to the facts and circumstances but not reduced on the basis that the appellant was blameless etc such that no penalty should be imposed or, if there is to be a penalty, it be a very small one such as a fine." 1. This makes it clear that the Tribunal was seeking to evaluate an "appropriate" penalty by reference to all of the "facts and circumstances" of the particular case. 2. The Tribunal's approach in this regard was consistent with many previous cases in which it has considered and applied the McDonough categories (which were relied on by the first defendant in its submissions to the Tribunal). For example, in Turner v Harness Racing NSW (NSW RAT, 25 November 2020), the Tribunal observed that the McDonough categories were to be "taken into account" (at [86]) in making an assessment of all of the "facts and circumstances" of the particular case (at [17]). 3. It is not possible to conclude from the Tribunal's reasons, read fairly, that the Tribunal adopted an unlawful approach. 4. The plaintiff further contended that that only conclusion open to the Tribunal was that the positive swab occurred for the reasons advanced by the plaintiff. The first defendant submitted that this was not correct for the following reasons: 1. The plaintiff is wrong to say that the Tribunal's findings "had excluded any source of the breach other than the plaintiff's blameless use" of Hemoplex. [15] 2. The Tribunal found that it had not been established that the environment was a contributing factor. 3. The Tribunal did not reach a conclusion on the involvement of a third person one way or the other. 4. The Tribunal found that the source was not known. 5. The Tribunal was entitled to conclude that the party on whom the burden lay, namely, the plaintiff, have failed to discharge that burden. 6. The plaintiff's criticisms of the Tribunal's approach to the McDonough categories should therefore be rejected.

[13]

Reference to the Briginshaw standard 1. The argument by the plaintiff that the Tribunal erred in law, or committed a jurisdictional error, by its reference to "Briginshaw considerations" in its assessment of whether the plaintiff had established what had caused the positive swab is misconceived for the following reasons: 1. The plaintiff contended before the Tribunal that the Briginshaw standard should be applied when assessing whether what occurred fell within McDonough Category 3. 2. The language of "comfortable level of satisfaction" is the language of the Briginshaw approach. 3. Briginshaw considerations are commonly applied by the Tribunal in determining issues arising under the Rules of Racing. [16] If the plaintiff wished to contend that the Briginshaw principles should be disregarded, he should have made that argument at the hearing. He did not do so. 4. The Briginshaw considerations do not change the standard of proof to be applied. It remains the case that the applicable standard of proof is satisfaction on the balance of probabilities: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450 ("Neat Holdings"); Director General of Department of Community Services; Re Sophie [2008] NSWCA 250 at [50] per Sackville AJA (with whom Giles JA and Handley AJA agreed). There can be no doubt, as a result, that the Tribunal applied the correct standard of proof, ie proof on the balance of probabilities. There was no error of law or jurisdictional error in this regard. 5. Briginshaw considerations do not create "hard and fast rules": Palmer v Dolman [2005] NSWCA 361 ("Palmer") at [47] per Ipp JA (with whom Tobias and Basten JJA agreed). Rather, they provide guidance as to factual matters that a decision-maker might take into account in assessing whether it is satisfied on the balance of probabilities of the relevant matter (eg the seriousness of the issue or the potential consequences of its findings and the strength of the evidence it thinks necessary to make good the allegations). Application of the balance of probabilities standard to the facts before the Tribunal, in light of these considerations, was a task for the Tribunal as the finder of fact. Any error in how those factual considerations were weighed in reaching the Tribunal's determination does not give rise to an error of law or jurisdictional error. 6. Briginshaw considerations suggest that, where they have application, a decision-maker should not be convinced by "inexact proofs, indefinite testimony, or indirect inferences": Briginshaw at [361]-[362] (Dixon J). Where the burden was on the plaintiff to prove how the positive swab came about, it would be wrong for the plaintiff to suggest that he could have proved that case by "inexact proofs, indefinite testimony, or indirect inferences". As a result, there would be nothing evincing an error of law or jurisdictional error for the Tribunal to require that something more than this be demonstrated. 7. Permitting the penalties applicable to such offences to be reduced simply because there is some doubt about how the prohibited substance came into the horse's system, or because the regulator cannot prove exactly how this occurred, would defeat the rationale of the rule and the clear public interest affirmed by the Court of Appeal in Day (No 2). In that context, it was well within the Tribunal's discretion as to fact finding, which does not give rise to an error of law or jurisdictional error, to consider that it should be comfortably satisfied of the relevant facts before concluding that the plaintiff was blameless in relation to what had occurred. 8. The plaintiff's submissions in relation to the Tribunal's approach to the Briginshaw considerations should therefore be rejected.

[14]

Credibility 1. The first defendant contended that the plaintiff's contentions in this respect unfairly reflect the reasoning of the Tribunal which does not contain contradictions suggested by the plaintiff.

[15]

Assessing culpability by reference to the McDonough categories: wrong questions of culpability?

It may be accepted that, if the Tribunal applied a wrong legal test, or failed to apply a correct legal test as contended by the plaintiff, there would be jurisdictional error because the wrong test would lead the Tribunal to effectively not exercise its jurisdiction: Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [67]-[68]; Australian Rail Tram and Bus Industry Union v Aurizon Operations Ltd [2023] NSWSC 484 at [180]-[184] (Walton J); Kavanagh v Racing NSW [2019] NSWSC 40 at [40]-[44] (Fagan J) ("Kavanagh"). However, in my view, the plaintiff has failed to demonstrate jurisdictional error upon the bases relied upon in Ground 1, noting that the Ground had three limbs.
AHRR r 190(2) imposed an absolute responsibility upon the plaintiff to present the horse to the race free of prohibited substances. He had possession and control of the horse at all relevant times. As the plaintiff presented the horse on 16 October 2018 contrary to that condition, as demonstrated by, inter alia, the laboratory results and his plea. He was guilty of an offence under that rule.
As earlier mentioned, no defence of honest and reasonable mistake of fact is available under AHRR r 190 nor does the rule permit a defence of reasonable precautions. AHRR r 190(4) provides that the offence is committed via trainer under r 190(2), regardless of the circumstances in which the prohibited substance came to be present in or on the horse.
The strictness of the provisions of AHRR r 190 reflects the seriousness of the presentation of horses with prohibited substances, in this case cobalt (see AHRR r 188A(2)(k); Day (No 2) at [79] (Basten JA)).
Whilst irrelevant to the question of liability, the state of mind of the plaintiff and the reasonableness of his conduct were relevant to the assessment of penalty; Day (No 2) (at [88] (Basten JA)).
The McDonough categories referred to in the submissions of the parties arose from the decision of Judge Williams presiding in the Victorian Racing Appeals Tribunal ("VRAT") with two advisors in McDonough. In that matter, Mr McDonough, the trainer of a horse called Captain Cullen, was found guilty by the stewards of breaching AHRR r 190(1) and 190(2) and a penalty was imposed of 6 months disqualification. A urine test after a race had found a positive test for Boldenone which is a steroid and a prohibited substance. Mr McDonough appealed to the VRAT.

[16]

Briginshaw issues

Irrespective of the application of Briginshaw principles, the applicable standard of proof, the one applied by the Tribunal, was satisfaction on the balance of probabilities (Neat Holdings at (449)-(450)). Briginshaw considerations do not change the standard of proof applied.
As previously mentioned, the Briginshaw considerations do not create "hard and fast rules" (Palmer at [47] per Ipp JA (with whom Tobias and Basten JJA agreed)). Briginshaw considerations provide guidance as to whether a decision maker would be satisfied on the balance of probabilities as to a particular matter having regard to considerations such as the seriousness of the issue or the potential consequences of the findings.
The first defendant was correct to submit that the application of the balance of probabilities standard to the facts before the Tribunal was a task for the Tribunal as a finder of fact. Any error in how those factual considerations were weighed in reaching the Tribunal's determination does not give rise to an error of law or jurisdictional error.
In any event, a prohibition offence under AHRR r 190(1), the type for which the plaintiff was convicted, is a very serious matter. These are offences of absolute liability for a good reason. As the Court of Appeal emphasised in Day (No 2) at [79] (Basten JA): "[79] …It is clear that, as with any sport, and particularly sports using non-human animals, the public interest requires strict measures to identify unacceptable performance enhancing substances and to control or prevent their administration."
That consideration was relevant to the Tribunal's discretion as to fact finding, both generally and with respect to McDonough Category 3 in circumstances where the plaintiff relied on his good character (in all respects on sentence), but where it was unknown how the prohibited substance came into the horse's system. It was appropriate in those circumstances that the Tribunal should consider whether it was comfortably satisfied of the relevant facts before concluding the plaintiff was blameless in relation to what had occurred.
Importantly, the plaintiff himself contended in his submissions to the Tribunal that the Briginshaw standard should be applied when assessing whether what occurred fell within McDonough Category 3. He referred to this as "the appropriate Briginshaw standard" (as recorded at [201] of the decision). This was consistent with the plaintiff's submissions to this Court on 1 September 2023. The Tribunal further recorded the plaintiffs' position at the hearing before it as follows at [235] of the decision: "It is said [by the appellant] that with the respondent not able to exclude the appellant's theories, that he has established to a comfortable level of satisfaction that he was blameless."

[17]

Credibility

The plaintiff contended that, "by inference from the result", the Tribunal "must have applied a wrong test with respect to the application of a witness's credibility", namely that of the plaintiff.
However, I do not consider that, by inference from the result, it may be concluded in this matter that the Tribunal applied the wrong test as sought by the plaintiff. That is principally because I do not consider there was a contradiction in the Tribunal's reasoning process either at all, or as contended by the plaintiff.
The relevant aspects of the Tribunal's reasoning, having regard to findings as to credibility, are described below.
Dr Wainscott's theory was not that the plaintiff had deliberately dosed the horse with cobalt (as the plaintiff contended), but rather that there may have been some sort of administration (by someone) on race day or sometime before the race.
The Tribunal concluded only that the plaintiff had not engaged in such an administration.
While Dr Wainscott could not rule out the plaintiff's expert's theory, he also made clear that he could not accept it. This was consistent with the Tribunal's ultimate conclusion that the plaintiff had not established how the positive swab came about.
The Tribunal's findings at [253]-[254] and [263] of the decision did not concern the question of whether the plaintiff had himself administered cobalt to the horse. Rather, they concerned the expert evidence as to whether the positive swab could be explained by the horse failing to process cobalt through its system due to health issues.
Contrary to the plaintiff's submission's, the Tribunal did not "reverse" any of its earlier findings at [253]-[254] and [263]. This submission of the plaintiff results from his misreading of the decision. The Tribunal was concluding in those paragraphs, consistently with its earlier findings, that had it had accepted Dr Wainscott's evidence and, in the result, the Hemoplex administered to the horse must have been eliminated well prior to its presentation at the race. As previously mentioned, it follows that the plaintiff had not established the horse did not process the cobalt through its system as opined consistently with theory 2.
The Tribunal proceeded to consider penalty on the basis that the readings remained unexplained and, that the case attracted, as advanced by the parties, consideration under McDonough Category 2. The Tribunal found that objective seriousness was to be determined on the basis that the subject horse was legally treated in accordance with the proper administration and withholding times, namely, what the plaintiff did with Hemoplex was legitimate. However, the Tribunal did not accept the contention, pressed by the plaintiff below, that the Hemoplex was the cause of the positive result. The Tribunal found the cause remained unknown. In that way the Tribunal recognised the plaintiff's credit, but also identified that the source of the positive reading remained unknown. In consequence, it proceeded to deal with the matter in accordance with McDonough Category 2, as it was invited to do by the parties.

[18]

Conclusion

The plaintiff's Ground 1 of judicial review is dismissed.
Some of the considerations arising in the disposition of Ground 1 are also applicable to the determination of Ground 2 to which I will now turn after a summary of the submissions of the parties.

[19]

The plaintiff's submissions

In broad terms, the plaintiff contended that, assuming the Tribunal asked the correct question, having regard to the findings made favourable to the plaintiff, it could not have come to the decision it did. The plaintiff relied in this respect on irrationality grounds.
As to Ground 2, the plaintiff submitted the following:

[20]

Irrationality 1. The Tribunal's conclusion on the source of the breach and culpability was so illogical as to be irrational, which if sustained is a jurisdictional error: SZVFW at 573 [81]-[82]; Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 ("Li") at 366, 375 [72], [105]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 ("SZMDS") at 649-650 [135]. 2. The outcome on this issue is so irrational that it "lacks an evident and intelligible justification" or is one no reasonable decision-maker could have reached. However, legal unreasonableness is not limited to the outcome in the decision. In this case, it is also that the process of reasoning in which the Tribunal engaged was not open to it because there is no logical connection between the Tribunal's primary findings of fact and the ultimate inferences or conclusions drawn as to causation and culpability: Plaintiff S183/2021 v Minister for Home Affairs (2022) 399 ALR 644; [2022] HCA 15 ("Plaintiff S183/2021") at [31], [43]; Li at [62], [76]. 3. The Tribunal findings at [253]-[254] and [263] cannot logically stand with the Tribunal's anterior findings that excluded all sources of cobalt other than that affirmatively identified by the plaintiff: the Tribunal had positively excluded that the plaintiff had given other doses at other times, that some third party had given it or that the horse obtained it from the environment. The Tribunal's subsequent conclusion in the above paragraph was not rationally available to it. Having positively killed the "other source theory" (at [222], [223], [225], [259] and [172]) the Tribunal could not resurrect a zombie by a "consequential finding" at [263]. 4. On the finding that the plaintiff only gave the horse what he said he did, when he did and for the proper reasons he gave, the only open conclusion was that: 1. The facts and circumstances of the breach showed that the objective seriousness of the offence in this instance was low for its type (accepting that the type of offence also bears on seriousness). 2. The plaintiff had no moral culpability for the breach or at most such culpability was very low. 1. Further and alternatively, the Tribunal's reasoning process and findings in respect to culpability so badly miscarried that they were not an effective exercise of its jurisdiction, and the matter must be redetermined. 2. The conclusions of the Tribunal that the horse returned to (apparent) health immediately after the end of the Hemoplex injections, perhaps because of them, perhaps regardless of them, and was able to be worked and raced is not a logical or available basis for finding the horse's condition was in all respects "normal" at that time (at [247] of the decision). This is especially so when Dr Wainscott had conceded that he could not exclude the illness at the time the horse received the injections having interfered with the processing of the cobalt (and the Tribunal did not reject that concession) and Dr Major positively opined that it would, and the Tribunal did not reject that opinion. 3. The Tribunal's conclusion that the administration studies have not been shown to be "able to be downgraded"(at [241]) and that "each of those matters which are said to cause the studies to be read down are entirely speculative and of no weight" is diametrically opposed to and cannot logically stand with its findings at [229] and again at [250] (accepting the concessions made by Dr Wainscott at [75]-[78], [92], [95] that, unlike the subject horse at the time of administration, the study horses "were not in work, were not sick, had an unknown level of dehydration and had no known exposure to cobalt"). The requirement that the plaintiff be able to point to contrary studies of horses that were sick and dehydrated before the lack of comparability of the study subjects to the horse in this case was could be considered is irrational and cannot stand with its findings at [229]-[230]. 4. Additionally, the Tribunal's conclusion at [257] was completely illogical and a non sequitur (apart from also not being based in any evidence before the Tribunal). 5. The issue in Ings v Racing New South Wales [2022] NSWSC 1127 ("Ings") was different as it related to complaints regarding factual findings on a question of causation posed by the rule applicable in that case. 6. The observations by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 ("Bond") referred to by Basten AJ in the passage quoted at Ings at [53] were directed to findings of fact and not to illogicality in the process of decision-making or its conclusions. As Basten AJ went on to explain in the following paragraphs of Ings at [54]-[55], these are undoubtedly reviewable for irrationality (which the High Court had accepted is synonymous with illogicality and unreasonableness eg SZMDS at [125]). 7. Modern authority confirms that unreasonableness or irrationality is a jurisdictional error because the statutory source of power (relevantly here, s 21 of the HR Act and the AHRR r 256) is construed as requiring the power granted be exercised reasonably (and rationally): Li at [23]-[26], [90] such that administrative conduct that was disproportionate or arbitrary would be invalid (at [30]-[31] and [74]) and that the ground is broader than Wednesbury unreasonableness [28], [68], [76], [85]; SZMDS at [133]; Plaintiff M1/2021 at [25], [27]; Plaintiff S183/2021 at [31], [43] and ABT17 at [19], [33], [125], [129] (cf Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 at 36). 8. The serious consequences attending a disqualification order in the comparable code of thoroughbred racing "will affect the standard by which reasonableness is to be judged" (Ings at [56]). 9. Even in fact finding, there will be legal error if there was no available basis for the finding. 10. The Tribunal's ultimate conclusion was not available because it had already accepted the plaintiff's evidence of his conduct and excluded alternative sources of the cobalt. 11. The finding at [244] (which is before the administration occurred and, not at the time of administration) and for [247] (which is afterwards) do not provide a logical, plausible or intelligible justification for the Tribunal's conclusion regarding matters the Tribunal accepted at [229]-[230] but then reversed at [249]-[250] (cf SZMDS at [135]; DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30(4)]).

[21]

The first defendants' submissions

The first defendant submitted that this ground of review visa-à-vis irrationality, is also misconceived and should be rejected.
In support of that contention, the first defendant submitted: 1. The correct approach to addressing an allegation of the type made in this case is that stated by Basten JA in Ings at [53]. The context of that case was similar to the present. 2. The passages of the Tribunal's decision under challenge in this respect wholly involve a misreading of the decision and, in any event, involved challenges to findings of fact which were impermissible upon judicial review.
The first defendant submitted that Ground 2 of the plaintiff's claim should therefore be dismissed.

[22]

Consideration: Ground 2

The Court has earlier identified how the plaintiff's submissions as to this ground, and more broadly the questions of legal unreasonable, illogicality and irrationality, had become interlinked with other grounds in the plaintiff's written supplementary submissions.
When looked across the entirety of the plaintiff's submissions in this respect, in my view, this Ground should be dismissed and as should the related considerations arising with respect to Grounds 1 and 3.
The fundamental basis for that conclusion is the Tribunal decision is that the plaintiff's submissions have proceeded upon a misreading and misunderstanding of the decision. When properly understood, the decision does not establish a basis for judicial review upon the grounds of legal unreasonable, illogicality and irrationality in the decision-maker's findings in that light.
Some of the plaintiff's arguments intersect with issues raised by the plaintiff as to Ground 1. The same issue arises with respect to my consideration of Ground 3 below. My conclusions with respect to those grounds apply with equal force under the Ground. I do not propose to repeat my conclusions except those required as part of the discrete reasoning process under that Ground.
For the purposes of considering this Ground, I shall return to the Tribunal's decision, unavoidably with some repetition, in order to demonstrate the absence of legal unreasonableness, illogicality or irrationality. Strictly speaking, that analysis does not require a resolution of the legal arguments as to principles applying to legal unreasonableness, particularly those emerging in the supplementary submissions. But I will take some little time in examining them before turning to, as I have noted, particular aspects of the Tribunal's decision.
In addition to the discussion of broad principles with respect to judicial review and, particularly in relation to dealing with the scope of the same with respect to questions of fact earlier discussed in this judgment, the following propositions may be stated, in substantial acceptance of the first defendant's submissions as to the applicable principles: 1. There are circumstances in which flaws in the decision-maker's process of fact finding may give rise to an error of law or jurisdictional error in the form of legal unreasonableness, irrationality or illogicality. 2. The general test is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker. This test concerns whether the decision-maker has reasoned in a way that has caused it to go beyond the "area of decisional freedom" granted to it under the relevant statute: Li at [23] (French CJ). 3. Error of this type can be established by looking at both the "outcome" and the "process" of reasoning of the decision: Plaintiff S183/2021 v Minister for Home Affairs (2022) 399 ALR 644 at [31], [43] per Gordon J as follows: 1. The outcome of the decision: the question here is whether the outcome is one that no reasonable decision-maker could have reached: SZVFW at [82]. That is, the issue is whether, regardless of the reasoning, the decision is one that falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law: Li at [105] (Gageler J). 2. The reasoning process: the question in this respect is whether a rational and logical decision-maker could have engaged in the reasoning process adopted: SZMDS at [133] and [135]. In this regard, the High Court has said that legal unreasonableness will be present where the decision "lacks an evident and intelligible justification": Li at [76] (Hayne, Kiefel and Bell JJ). 1. Where reasons have been provided for a decision, they are the focal point for assessment by the Court. It would, therefore, be a rare case to find that the exercise of discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power: SZVFW at [84]. 2. However, the courts have regularly emphasised that review based on legal unreasonableness, irrationality and illogicality is a "high threshold", that is rarely met. The High Court has reiterated in this context that the Court must not stray into evaluating for itself how it might exercise the powers entrusted to the decision-maker. For that reason, the test for legal unreasonableness has been described as "necessarily stringent", "extremely confined" or in "the realm of the extraordinary": SZVFW, [11] (Kiefel CJ), [52], [70] (Gageler J). 3. Given the arguments presented by the plaintiff in this case, it is necessary to emphasise two factors: 1. The "merits" of an exercise of administrative power include the lawful exercise of the power, even if it involves "administrative injustice" or mere "error": ABT17 at [124] per Edelman J. 2. The use by applicants of expressions such as "illogicality" or "irrationality" may be no more than to strongly emphasise disagreement with the decision-maker's process of reasoning on an issue of fact. This is evident in the present matter. 1. Contrary to the submissions of the plaintiff, Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 ("Azzopardi") point remains good law (see CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338 at [26] per Allsop P; [86] per Basten JA). 2. Perversities in the fact finding process may feed into other types of error of law or jurisdictional error, including legal unreasonableness. The point arising from Azzopardi is simply that it is not sufficient for a plaintiff to point to an error of fact per se, even if the finding is perverse or illogical, to establish jurisdictional error or error of law. In State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257 at [12], Basten JA explained the fact that a finding can be characterised as "perverse" or "illogical" is not sufficient or necessary to identify an error of law; "some greater level of precision", by reference to the tests for jurisdictional error or error of law set out above, is required. 3. So long as there is some basis for an inference (ie that inference is "reasonably open"), mere illogical reasoning does not provide a basis for judicial review: Bond at 355-356 per Mason CJ. Again, the point here is that mere illogical reasoning is insufficient in and of itself. For an error of law or jurisdictional error to have occurred, the flaws in the process of reasoning need to rise to the much higher threshold of legal unreasonableness as discussed above. 4. Questions of the weight to be attached to a factor relevant to the exercise of a discretion are matters for the primary judge or decision-maker. Questions of weight are not amenable to judicial review: DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 ("DCP16") at [87] per Beech, O'Callaghan and Anastassiou JJ; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41 per Mason J; McCarthy No 1 at [52] per Beech-Jones J. This point is particularly pertinent (as in the present case) when considering a "value judgment" that has been made by the decision-maker, based on the facts and circumstances of a particular case, as to the appropriate penalty to impose for a criminal or disciplinary offence: Markarian at [51] per McHugh J.

[23]

The plaintiff's submissions

In broad terms, the Tribunal had regard to the case the parties both asked it to have regard to but did so "in a way that fundamentally misunderstood and misapplied those cases" because of an inflexible adherence to McDonough (which was a mere guide). Reference was also given to erroneous use of a penalty guidance provided by the first defendant and reliance on precedents.
In relation to Ground 3, the plaintiff submitted the following:

[24]

McDonough 1. Both parties before the Tribunal addressed the facts of the case in terms of the very general categorisation (and his Honour expressly emphasised the generality of his observations) of Judge Williams in McDonough of prohibited substance cases. There were three classes or categories: 1. First, where the regulator can establish positive culpability by deliberate wrongdoing or through ignorance or carelessness; 2. Secondly, where the Tribunal has no real idea how the prohibited substance got into the horse; and 3. Thirdly, where the trainer satisfied the Tribunal as to how the substance got into the horse in circumstances that show he has no real culpability or his culpability was low. In some such cases there may be no need for general deterrence at all and it may be appropriate to impose no penalty at all. 1. Judge Williams suggested at (at 11) that a penalty in a Category 2 case "may or may not end up being similar to the first category, every case depending on its own individual facts". 2. McDonough itself was a case in which the trainer had no idea how the substance (which was a steroid that was prohibited) came to be in the horse. As found by Judge Williams, the likelihood was the banned substance was administered while the trainer had custody and management of the horse. Nonetheless, his Honour found the trainer blameless because he accepted the trainer's evidence of denial of wrongdoing and his good character. Just like this case, there was a dispute over the expected times for accumulation and elimination of the substance and the racing vet conceded, like Dr Wainscott, that there were "too many variables" and that late elimination could not be excluded. 3. Judge Williams concluded (at 13), "the Tribunal considers that there is no justification for any disqualification of the trainer or even for any fine in view of the findings made. Of course, the horse will be disqualified as it has to be under the rules, but there will be no other penalty." The findings of fact had many similarities to the matters the Tribunal accepted in this case. 4. Judge William's discussion is a useful reference or shorthand starting point for some aspects of this case, but the Tribunal elevated McDonough to a rigid taxonomy with draconian consequences for the plaintiff based on a misapprehension and misapplication of the case. 5. The Tribunal indicated it would "apply the McDonough categories" at [158]. The Tribunal also stated is "required to find a penalty … not reduced on the basis that the [plaintiff] was blameless etc such that no penalty should be imposed or if there is to be a penalty, it be a very small one such as a fine" (at [265] and [280]). The plaintiff submitted this involved legal error in four ways: 1. Misunderstanding and misapplying the McDonough categories as requiring some precise scientific explanation of the specific readings, instead of indicating that the trainer may give some acceptable account of the facts and his conduct to show he is blameless or has otherwise less culpability than a deliberate and knowing breach of the rules for a nefarious purpose or carelessness or ignorance; 2. Impermissibly fettering the exercise of the discretion, or of carrying out the exercise of instinctive synthesis, by mechanically and explicitly omitting two of the options under AHRR r 256 and ruling them out consideration. The Tribunal also disregarded the full toolkit of sanctions AHRR r 256, whether provided singly and in some combination; 3. Wrongly assuming a fine under AHRR r 256 is a "small" penalty (at [142]) as that assessment must be relative to the actual conduct and circumstances in question including the lack of harm that the Tribunal had already accepted. The finding that concentrations were not "just above the threshold" (see at [271]) was not given any content adverse to the plaintiff because there was no finding that the particular concentration had any practical effect or meaning; and 4. By holding that a McDonough Category 2 "mandates a disqualification" (at [294], see also [272]), even where the Tribunal has found that there is no prospect of the plaintiff ever re-offending and there is no need for specific deterrence. Application of such a "mandate" is contrary to the provisions and scheme of the rules as the rules specify no mandatory penalty for a breach of AHRR r 190(1). 1. Unlike other civil penalty regimes which only provide for pecuniary penalties or protective regimes which only provide for disqualification on a determination of fitness to practice or not, the penalty discretion under the AHRR is not such a blunt instrument. There are a graduated series of sanctions. Accordingly, the Tribunal is required to give effect to the rules by considering the full range of options for dealing with the matter. 2. The Tribunal must be understood to have determined that the plaintiff was relevantly fit to be a trainer because it accepted that he was of good character and would not re-offend and there was no requirement of any specific deterrence. On those findings, there was no element of public protection that required (or justified) the imposition of a disqualification.

[25]

The Penalty Guidelines 1. The penalty guidelines referred to at [266] of the decision is not part of the AHRR. It is not a rule made or adopted under ss 21 or 22 of the HR Act. There is no statutory requirement under the Act or the AHRR or the Local Rules that it be considered or be used in a particular way. 2. It is in the nature of a standing submission or a policy that the first defendant applies to its own decisions. It can be considered as such by the Tribunal, but it cannot be used to fetter its broad consideration of the penalty options available to it under AHRR r 256 because: 1. To so elevate the penalty guidelines is incompatible with the scheme of the rules which provides the broad discretion in AHRR r 256 applicable to every offence except if the rules provide for a specific penalty. 2. The categorisations in the penalty guidelines have an arbitrary character, in the sense of not being able to be justified or understood by reference to the statutory power in its context, in this case the rules that have the statutory authority do not make any categorisation of severity by substance, only specified behaviours, and do not limit or direct the discretion provided under AHRR r 256 for the general case: Green v Daniels [1977] HCA 18; (1997) 13 ALR 1 at 10; cf Minister for Immigration, Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189 ("Gray"). 3. The Tribunal cannot abdicate its decision to a policy or submission, even in part (Gray at 205-206). 1. It was not an error for the Tribunal to consider the penalty guidelines at all, and indeed the Tribunal ostensibly reminded itself of the need to consider the case on its merits (at [268]). However, the Tribunal's course of reasoning in [281]-[291] of the decision shows that it simply adopted the penalty guidelines' approach of only considering the penalty of disqualification (including the approach under the "current" guideline rather than the one published at the date of the breach) and excluding any real, genuine or independent consideration of whether any other approach was appropriate. 2. In respect of [65]-[67], the Tribunal's use of a starting point of disqualification at [291]-[297] of the decision without consideration of whether that was justified in the plaintiff's case is the result of the fettering error. 3. The Tribunal's application of the penalty guidelines was an abdication of its task and led it into error.

[26]

Precedent 1. The Tribunal's very limited consideration of "precedent" (at [281]-[291]) as requiring that only a disqualification be considered is also in error. 2. Other cases on other facts cannot be a binding precedent on the synthesis required to determine penalty and elevating their results to a rule is an error: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [304]; cf The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48. 3. The Tribunal's description of its own finding in Russo v Harness Racing NSW (NSW RAT 23, August 2023) ("Russo") that "in a McDonough category 2, anything less than a disqualification would be inappropriate" is a misstatement of the already limited value of that case. The parties in Russo agreed that a disqualification was the appropriate penalty (Russo at [10],) and made no detailed submissions on general deterrence. The Tribunal decided it did not warrant substantial examination, the need for disqualification on the basis of specific deterrence having already been conceded (at [12], [13] of the decision). 4. This fettering of the Tribunal's discretion or consideration of the options under AHRR r 256 was contrary to the rule.

[27]

The first defendants' submissions

The first defendant made the following submissions with respect to this ground:

[28]

McDonough 1. The plaintiff was not correct in submitting the Tribunal "elevated McDonough to a rigid taxonomy with draconian consequences". 2. The Tribunal used the McDonough categories as a starting point before going on to consider all the facts and circumstances of the case (see, for example, [265] of the decision). The Tribunal expressly stated that the penalty should be "appropriate to the facts and circumstances" of the case. 3. The Tribunal did not misunderstand the McDonough categories. Category 2 applies, as stated in McDonough: " ... where at the conclusion of any evidence and plea the Tribunal is left in the position of having no real idea as to how the prohibited substance came to get into the horse. This may be with the trainer giving some explanation which the Tribunal is not prepared to accept ... ". 1. That accords with the Tribunal's approach in this case. 2. There is nothing in the Tribunal's reasoning to suggest that by reason of its reference to the McDonough categories the Tribunal "mechanically and explicitly omit[ted] two of the options under AHRR r 256". 3. The plaintiff criticised the Tribunal's reference at [265] of its Decision to the penalty being reduced to "a very small one such as a fine". That conclusion does not display any error of law or jurisdictional error. It was open to the Tribunal to consider that a fine would be a less serious penalty than a disqualification. 4. The Tribunal did not find that McDonough Category 2 "mandates" a disqualification. Rather, the Tribunal concluded at [294] of the decision that "the general deterrence message here must be one which is in the public interest for the protection of the industry and mandates a disqualification". The Tribunal was entitled to refer to the McDonough categories (amongst other things) in assessing objective seriousness, as it did at [272] of its decision. 5. There is no basis to suggest that the Tribunal was not well aware of the various penalties that could be imposed on a person before it such as the plaintiff. The Tribunal considered that a disqualification was an appropriate penalty on the facts and circumstances of the case before it. This was a conclusion open to it and does not display error of law or jurisdictional error. 6. The plaintiff is wrong to contend that the Tribunal had accepted that the only open conclusion was that there was no unknown cobalt source.

[29]

The Penalty Guidelines 1. The plaintiff accepts that the penalty guidelines are relevant in the circumstances of the present case. However, the plaintiff erroneously contends that the Tribunal adopted the guideline without any real or genuine consideration of the applicant's case. 2. That submission should not be accepted. 3. The plaintiff accepted that the penalty guidelines provided for a "starting point" of not less than 5 years' disqualification for the offence to which the plaintiff pleaded guilty. On the Tribunal's approach, the penalty suggested by the penalty guidelines have been reduced by a period of 4 years and 3 months. 4. Secondly, the plaintiff accepted that the Tribunal expressly stated in its decision that the penalty guidelines was not binding, and the case needed to be considered on its merits. It is clear from the decision that the Tribunal considered all of the circumstances of the plaintiff's case and did not consider itself bound by the penalty guidelines. 5. Thirdly, in light of what is stated in the decision, the plaintiff's approach would require this Court to reject the Tribunal's expressed reasoning process as not reflecting its actual reasoning process. There is no basis on which to do so. 6. The plaintiff submitted that the Tribunal concluded that precedent "required" it to disqualify the plaintiff. Again, this does not fairly reflect the Tribunal's reasoning process. 7. The Tribunal expressly considered all circumstances of the plaintiff's case. The Tribunal's reference to precedent was in relation to the "issue of parity" (at [281]). It was plainly open to the Tribunal to consider precedent in this context. 8. In relation to the Tribunal's commentary on the case of Russo at [287], those remarks were made expressly by reference to "the facts and circumstances of that case". The Tribunal was not saying, contrary to the plaintiff's submission, that its earlier decision in Russo required it to disqualify the plaintiff regardless of any of the other circumstances of his case. 9. The plaintiff's Ground 3 of review should therefore be dismissed.

[30]

McDonough

In substance, I have earlier rejected the contentions made by the plaintiff under this heading in the course of my considerations under Ground 1. [20]
As the plaintiff's submissions in this respect are slightly wider, it is convenient to restate some earlier conclusions and deal with those additional considerations together as follows (without returning to the earlier analysis unless necessary): 1. The Tribunal did not elevate McDonough to a rigid taxonomy. The Tribunal used the McDonough categories (and, in particular, Category 3) as a starting point before going on to consider all the facts and circumstances of the case. 2. The Tribunal did not misunderstand the McDonough categories. I have earlier dealt in detail with those categories and the Tribunal's application of them. In particular, the Tribunal properly understood that Category 2 applied where the Tribunal is left in the position of having no real idea as to how the prohibited substance came to get into the horse [21] . The fact that the plaintiff did not establish that he fell under Category 3 simply entailed that he did not receive the benefit of a finding of that kind but left open the wide range of considerations available under Category 2. The Tribunal did not mechanically and explicitly omit two of the theories under AHRR r 256. 3. The Tribunal did not find that McDonough Category 2 mandates a disqualification. The Tribunal came to a view that disqualification should arise having regard to the need for general deterrence. As to objective seriousness of the offending, it was not an error to consider the McDonough categories (see at [272] of the decision). 4. I have earlier dealt with the appropriate understanding of the latter part of [265] of the decision. I accept the submission advanced by the first defendant that it was open to the Tribunal to consider that a fine would be a less serious penalty then disqualification. In any event, that conclusion does not display any error or law or jurisdictional error. 5. The Tribunal exhibited a clear awareness of the available penalties but considered the appropriate penalty was disqualification on the facts and circumstances of the case before it. 6. As earlier discussed, the plaintiff's contention that the Tribunal had accepted that the only open conclusion was that there was no unknown cobalt source should be rejected.

[31]

The Penalty Guidelines

The first defendant is correct to submit that, in order to accept the plaintiff's contentions in this respect, the Court would need to reject the Tribunal's express reasoning process such that the express reasoning process would not be accepted as the Tribunal's actual reasoning process. In my view, there is no proper bases for the plaintiff's contentions in that respect.
My reasons for that consideration are as follows: 1. At [268] of the decision, the Tribunal found as earlier observed that the more critical factor than the penalty guidelines is "the actual conduct established against the appellant and the facts and circumstances of this case". The Tribunal also observed that no greater penalty than the facts and circumstances warrant should be imposed. 2. The Tribunal noted that the starting point under the penalty guidelines was 5 years (at [295]). The Tribunal then stated that, in the circumstances of this case, the starting point should be 4 years disqualification. The Tribunal proceeded, on the facts and circumstances of the case, to reduce the penalty overall by 4 years and 3 months, namely, 10% of the disqualification period under the penalty guidelines.
In my view, there is no proper basis to conclude that the Tribunal did not give effect to its stated reasoning. There can be no criticism of the Tribunal's reference to the penalty guidelines as properly conceded by the plaintiff. The Tribunal considered all of the facts and circumstances of the particular matter and then exercised a discretion to penalise the plaintiff at a point significantly less than what the penalty guidelines would have imposed (which penalty itself represented a reduction in the penalty upon the appeal).

[32]

Precedent

The plaintiff's submissions were essentially that the Tribunal considered itself to be hide bound by precedent such that the Tribunal found that it must disqualify the plaintiff. However, this does not properly represent the reasoning of the Tribunal or recognise that the Tribunal determined the penalty based upon the facts and circumstances of the case before it. In any event, the Tribunal's reference to precedent was only in relation to the issue of parity (at [281]).
The reference by the Tribunal to an earlier decision of Russo does not, in my view, erect a general proposition that Category 2 cases must result in a disqualification. The Tribunal clearly stated that the approach adopted was on "the facts and circumstances of that case". Furthermore, the Tribunal observed that, in Russo, general deterrence was found to be needed at a high level.
If the Tribunal was asserting that it was bound by the decision in Russo and in that light, it was required to disqualify the plaintiff, regardless of any other circumstance of his case, then the plaintiff would be correct to contend that there was, at least, legal error. However, that was not the approach taken by the Tribunal as was evident from the whole of its decision including those parts which discuss Russo.
In my view, Ground 3 of judicial review should therefore be dismissed.

[33]

Materiality

The first defendant submitted that the onus was on the plaintiff to prove that any of the errors of law identified would have given rise to a different outcome and that they have not proved that.
It is unnecessary to consider the question of materiality in light of the conclusions I have reached.

[34]

Conclusion

In all the circumstances, the Amended Summons should be dismissed.
There remains the injunction made at the outset of the proceedings. It would be appropriate that the injunction be dissolved.
On the basis that costs should follow the event, and there does not appear to be any disqualifying considerations, it would appear that an order should be made for the plaintiff to pay the first defendant's costs.
However, given, at least, the proceedings for the injunction, I propose to hold over any final consideration as to the question of costs for a period of 7 days. At the end of that 7-day period, the parties will either state their agreed position as to costs or alternatively propose an agreed program to dispose of the question of costs. It would appear appropriate that, if costs were disputed, the question of costs be determined on the papers. The parties should, if necessary, advise their stance on that matter. No issue of costs arises with respect of the Tribunal given that the Tribunal entered a submitting appearance.
The first defendant shall bring in Short Minutes of Order within 7 days of this judgment which, in the event of a dispute as to costs, will include an agreed program for the resolution as to any issues as to costs, and an indication as to whether any issue as to costs would be resolved on the papers.

[35]

Orders and Directions

The first defendant shall file and serve Short Minutes of Order reflecting this decision within 7 days of the publication thereof.

[36]

Endnotes

The horse had been previously rained by another trainer, Mr Judd. It appears the plaintiff commenced training the horse in early May 2018.
This time was apparently within the required withholding time between a treatment and presentation to a race.
The plaintiff was suspended in February 2019 but was successful in having the suspension removed after an appeal to the first defendant.
The inquiry commenced on 3 May 2019.
Discussed in Day v Harness Racing New South Wales (2014) 88 NSWLR 594 ("Day (No 1)") at [62]-[64] (Leeming JA with whom McColl and Macfarlan agreed) ]; Day v Sanders; Day v Harness Racing New South Wales [2015] NSWCA 324; (2015) 90 NSWLR 764 ("Day (No 2)") at [21] (Basten JA with whom Leeming and Simpson JA agreed).
Day (No 1) at [14]; Day (No 2) at [22].
Rules 230 and 259 were amended in 2020.
Basten AJ having at [64] eschewed "a devotion to labels" such as "absolute liability".
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27; [2004] FCAFC 263 at [52]-[54], [68] (Black CJ, French and Selway JJ).
They were described as 'theories' in the present proceedings.
The Tribunal discussed the plaintiff's character and subjective case at [19]-[39].
At [239] the Tribunal put out of contention environment as a possible source of cobalt.
The plaintiff's relied upon submissions at Transcript p 22 lines 1-2 and p 23 line 9. He contended that the submission at Transcript p 22 lines 1-2 were to be read in the context of the preceding reference on p 21 to the submissions made to the stewards by the plaintiff's previous counsel, Mr Sheales, as to "where is the burden of proof in relation to features of aggravation?"
The plaintiff contended that the factual answer to that case of aggravation was explained by senior counsel from p21 lines 15-44, especially at lines 39-42 in regards to the use of good character. It was also contended that continuing this answer at pp 22 line 1 to p 23 line 9, senior counsel sought to have the Tribunal follow the path of reasoning in McDonough: see transcript of tribunal proceeding: annexure A to the affidavit of Claudette Chua, 13 September 2023.

[37]

Amendments 17 July 2024 - Paragraph [21] - changed "Mr VM Heath" to "Ms VM Heath" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 July 2024

Parties

Applicant/Plaintiff:

McCarthy

Respondent/Defendant:

Harness Racing New South Wales

Legislation Cited (6)

Australian Harness Racing Rules Harness Racing Act 2009(NSW)

Racing Appeals Tribunal Regulation 2015(NSW)

Interpretation Act 1987(NSW)

Racing Appeals Tribunal Act 1983(NSW)

Supreme Court Act 1970(NSW)

Harness Racing Act 2009(NSW)

Cases Cited (95)

90 NSWLR 451; [2015] NSWCA 284 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Golden v V'landys (2016) 339 ALR 610; [2016] NSWCA 300 Green v Daniels (1977) 13 ALR 1; [1977] HCA 18 Greyhound Welfare and Integrity Commission v Bell [2023] NSWSC 1150 IAG Ltd v Sleiman (2017) 82 MVR 1; [2017] NSWSC 1346 Ings v Racing New South Wales [2022] NSWSC 1127 James McDonald v Racing New South Wales [2017] NSWSC 1511 Kalifaif Pty Ltd v Digi-Tech (Australia Ltd) (2002) 55 NSWLR 737 Kavanagh v Racing NSW [2019] NSWSC 40 Kirk v Industrial Court of NSW (2010) 239 CLR 531; [2010] HCA 1 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Matthews v Racing New South Wales [2022] NSWSC 182 McCarthy v NSW Racing Appeals Tribunal [2014] NSWSC 798 McDonough ([2008] VRAT 6, unrep) Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration, Local Government & Ethnic Affairs v Gray (1994) 50 FCR 189 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27; [2004] FCAFC 263 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; [1992] HCA 66 The New South Wales Bar Association v Evatt (1968) 117 CLR 177; [1968] HCA 20 Norman Loy v Racing New South Wales (NSW RAT, 21 March 2022) NSW Authority v Graeme Rogerson (Racing Appeals Reports, August 2007, Issue 48) NSW Thoroughbred Racing Board v Waterhouse & Anor (2003) 56 NSWLR 691; [2003] NSWCA 55 Palmer v Dolman [2005] NSWCA 361 Plaintiff S183/2021 v Minister for Home Affairs (2022) 399 ALR 644; [2022] HCA 15 Quinn v Commonwealth Director of Public Prosecution (2021) 106 NSWLR 154; [2021] NSWCA 294 Racing New South Wales v Fletcher [2020] NSWCA 9 Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 1 WLR 948 Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555 Russo v Harness Racing NSW (NSW RAT, 23 August 2023) Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71 Schmael v Leach [2020] VSC 562 State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257 The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 Turner v Harness Racing NSW (NSW RAT, 25 November 2020) Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 Wood v Secretary of the Department of Transport on behalf of the Government of New South Wales [2021] NSWSC 1248 Texts Cited: Mark Aronson, Matthew Groves, Greg Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, 2022, Lawbook Co Thomson Reuters) Category: Principal judgment Parties: John McCarthy (Plaintiff) Harness Racing New South Wales (First Defendant) Racing Appeals Tribunal of New South Wales (Second Defendant) Representation: Counsel: VM Heath (Plaintiff) O Jones (First Defendant) Submitting appearance (Second Defendant)

The Tribunal

The Tribunal is constituted under s 5 of the Racing Appeals Tribunal Act 1983 (NSW) ("RATA"). Pursuant to s 16A of the RATA, an appeal to the Tribunal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the decision appealed against was made, may be given on the appeal. The plaintiff is not required to demonstrate error by the stewards: Costello v Racing Appeals Tribunal [2019] NSWSC 1808 at [9], [32], [49]; McCarthy v NSW Racing Appeals Tribunal [2014] NSWSC 798 ("McCarthy No 1") at [12]; cf Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124 at [2]; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [20]; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [11]-[15]; Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297G-298A.
The finding of the Tribunal is adjudicative not inquisitorial: McCarthy No 1at [20] and [63].
The Tribunal is not a Court. Pursuant to reg 16 of the Racing Appeals Tribunal Regulation 2015 (NSW) ("RATR"), the Tribunal, when hearing an appeal, is not bound by the rules of, or practice as to evidence, but may inform itself of any matter in such a manner as it thinks fit. The Tribunal is not bound to evidence before the stewards and under s 17A of the RATA may dismiss the appeal, vary the decision or substitute any decision that could have been made by the stewards or such other orders as the Tribunal thinks fit.

[2015] VSC 744

[1977] HCA 18

[2005] HCA 25

[1992] HCA 66

[2022] HCA 15

[2020] VSC 562

[2004] FCAFC 263

(2020) 269 CLR 439

(1960) 102 CLR 353

(2006) 227 CLR 57

(1990) 170 CLR 321

(1949) 78 CLR 353

(1985) 4 NSWLR 139

(2001) 205 CLR 50

(1938) 60 CLR 336

(2000) 203 CLR 194

(2018) 258 FCR 175

(2014) 88 NSWLR 594

(2015) 90 NSWLR 764

(2010) 79 NSWLR 1

(2008) 234 CLR 124

(2015) 90 NSWLR 451

(2003) 214 CLR 118

(2016) 339 ALR 610

(1977) 13 ALR 1

(2017) 82 MVR 1

(2002) 55 NSWLR 737

(2010) 239 CLR 531

(2005) 228 CLR 357

(1986) 162 CLR 24

(1996) 185 CLR 259

(2018) 264 CLR 541

(2010) 240 CLR 611

(2013) 249 CLR 332

(1994) 50 FCR 189

(2004) 219 ALR 27

(1992) 110 ALR 449

(1968) 117 CLR 177

(2003) 56 NSWLR 691

(2022) 399 ALR 644

(2021) 106 NSWLR 154

(2003) 216 CLR 473

(2016) 259 CLR 256

(1999) 199 CLR 270

(2003) 212 CLR 629

(2012) 248 CLR 378

(1996) 185 CLR 149

(2018) 357 ALR 408

(1997) 13 ALR 1

Section 21 and 22 of the HR Act provide as follows: 21 Disciplinary and work health and safety action may be taken by HRNSW (1) HRNSW may, in accordance with the rules, do any of the following - (a) cancel the registration under this Act of - (i) any harness racing club, or (ii) any harness racing horse, or (iii) any owner, trainer or driver of harness racing horses, or bookmaker or other person associated with harness racing, (b) disqualify, either permanently or temporarily, any owner, trainer or driver of harness racing horses, or bookmaker or other person associated with harness racing, (c) prohibit any person from participating in or associating with harness racing in any specified capacity, (d) prohibit any horse from competing in any harness race, (e) prohibit any person from attending or taking part in a harness racing meeting, (f) impose fines, not exceeding 200 penalty units, on any harness racing club or on any owner, trainer or driver of harness racing horses, or bookmaker or other person associated with harness racing for breaches of the rules, (g) suspend, for such term as HRNSW thinks fit, any right or privilege conferred by this Act or the rules on any owner, trainer or driver of harness racing horses, or bookmaker or other person associated with harness racing, (h) prohibit any person registered under the rules from taking part in any harness racing meeting held by any harness racing club that is not registered under the rules. (2) Any fine imposed under subsection (1)(f) is to be paid to and be the property of HRNSW. (3) HRNSW may only take action under this section for disciplinary purposes or for the purposes of work health and safety. 22 Rules in relation to harness racing (1) HRNSW may make rules, not inconsistent with this Act or the regulations, for or with respect to the control and regulation of harness racing. (2) Without limiting the generality of subsection (1), HRNSW may make rules for or with respect to the following - (a) any matter that by this Act is required or permitted to be prescribed by the rules, (b) any of the matters referred to in Division 1, (c) the effect of a disqualification of, or other penalty imposed on, a person or harness racing horse under section 21(1), (d) the allocation to harness racing clubs of dates on which they may conduct harness racing meetings and harness races, (e) the holding and conduct of harness racing meetings and of races at any such meeting, (f) the keeping of horses that are in the care or custody of persons registered under the rules, (g) the breeding of harness racing horses, (h) the naming and identification of harness racing horses, (i) the appointment of stewards by HRNSW and the functions of those stewards (including functions that do not relate to harness racing meetings), (j) conferring on stewards appointed by HRNSW the same functions as are exercisable by HRNSW under Division 1, (k) the extent to which and the circumstances in which stewards appointed by HRNSW may exercise their functions to the exclusion of stewards of harness racing clubs, (l) the fees and charges referred to in section 38.

AHRR r 188A is in the following terms: (1) The following are prohibited substances: (a) Substances capable at any time of causing either directly or indirectly an action or effect, or both an action and effect, within one or more of the following mammalian body systems:- the nervous system the cardiovascular system the respiratory system the digestive system the musculo-skeletal system the endocrine system the urinary system the reproductive system the blood system the immune system the integumentary system the ocular system (b) Substances falling within, but not limited to, the following categories:- acidifying agents adrenergic blocking agents adrenergic stimulants agents affecting calcium and bone metabolism alcohols alkalinising agents anabolic agents anaesthetic agents analgesics antiangina agents antianxiety agents antiarrhythmic agents anticholinergic agents anticoagulants anticonvulsants antidepressants antiemetics antifibrinolytic agents antihistamines antihypertensive agents anti-inflammatory agents antinauseants antineoplastic agents antipsychotic agents antipyretics antirheumatoid agents antispasmodic agents antithrombotic agents antitussive agents bisphosphonates blood coagulants bronchodilators bronchospasm relaxants buffering agents central nervous system stimulants cholinergic agents corticosteroids depressants diuretics erectile dysfunction agents fibrinolytic agents haematopoietic agents haemostatic agents hormones (including trophic hormones) and their synthetic counterparts hypnotics hypoglycaemic agents hypolipidaemic agents immunomodifiers masking agents muscle relaxants narcotic analgesics neuromuscular agents plasma volume expanders respiratory stimulants sedatives stimulants sympathomimetic amines tranquillisers vasodilators vasopressor agents vitamins administered by injection (c) Metabolites, artifacts and isomers of the prohibited substances prescribed by sub-rules (1) (a) and (1) (b). (d) An endogenous substance where the concentration of that substance is in the opinion of the Stewards unusual or abnormal. (2) The following substances when present at or below the levels set out are excepted from the provisions of subrule (1) and Rule 190AA: (a) Alkalinising Agents, when evidenced by total carbon dioxide (TCO2) present at a concentration of 36.0 millimoles per litre in plasma. (b) Arsenic at a level of 0.30 micrograms per millilitre in urine. (c) Dimethyl Sulphoxide at a concentration of 15.0 micrograms per millilitre in urine or 1000 nanograms per millilitre in plasma. (d) In male horses other than geldings, free and glucuroconjugated 5α-estrane-3β, 17α-diol at a mass concentration of 45 micrograms per litre in urine when, at the screening stage, the free and glucuroconjugated 5α-estrane-3β, 17α-diol exceeds the free and glucuroconjugated 5,10 estrene-3β,17α-diol in the urine. (e) Salicylic acid at a concentration of 750 micrograms per millilitre in urine or 6.50 micrograms per millilitre in plasma. (f) Free hydrocortisone at a concentration of 1.00 micrograms per millilitre in urine. (g) Testosterone - (i) in geldings: free testosterone and testosterone liberated from its conjugates at a mass concentration of 20 micrograms per litre in urine, (ii) in geldings, fillies and mares: free testosterone at a mass concentration of 100 picograms per millilitre in plasma, (iii) in fillies and mares: free testosterone and testosterone liberated from its conjugates at a mass concentration of 55 micrograms per litre in urine, (iv) in fillies and mares that have been notified as pregnant so as to comply with Rule 103B: free testosterone and testosterone liberated from its conjugates at any concentration in urine or free testosterone at any concentration in plasma. (h) 3-Methoxytyramine (including both free 3-methoxytyramine and 3-methoxytyramine liberated from its conjugates) at a concentration of 4.0 milligrams per litre in urine. (i) Boldenone in male horses other than geldings, (including both free boldenone and boldenone liberated from its conjugates) at a mass concentration of 15 micrograms per litre in urine. (j) Prednisolone (free Prednisolone) at a mass concentration of 10 micrograms per litre in urine (k) Cobalt at a concentration of 100 micrograms per litre in urine or 25 micrograms per litre in plasma. (3) The following are not prohibited substances: - antimicrobials (antibiotics) and other antiinfective agents but not including procaine penicillin - antiparasitics approved and registered in Australia by the APVMA for use in horses - ranitidine - omeprazole - ambroxol - bromhexine - dembrexine - registered vaccines against infectious agents - orally administered glucosamine - orally administered chondroitin sulphate - altrenogest when administered to fillies and mares (4) A trainer must notify the Stewards no later than 1 hour prior to the scheduled starting time of a race if the trainer's horse has been treated with Antimicrobials (antibiotics and other anti infective agents) except Procaine Penicillin, Vaccines and antisera for the prevention of disease, or Mucolytics within the preceding 7 days. (5) A trainer who fails to comply with sub-rule (4) is guilty of an offence. (Emphasis added.)

Three further matters, as to judicial review, should be mentioned at this juncture: 1. In determining whether the Tribunal has engaged in jurisdictional error or made an error of law, consideration should be given as to how the plaintiff advanced its case before the Tribunal. This consideration is important in this matter. Jurisdictional error or error of law cannot arise from a failure by a decision-maker to consider or address an argument that was never put to it: AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 at [12] (Basten JA); Azzi v State of New South Wales [2023] NSWSC 1028 at [51] (Adamson JA); Elnduct Systems Pty Ltd v 3D Safety Services Pty Ltd [2015] NSWCA 284; (2015) 90 NSWLR 451 at [114]. Gleeson CJ said in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 ("S395") at [l]: " ... on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process". 1. The jurisdiction of the Tribunal, constituted (as in this case) by Mr D B Armati, was regularly invoked. Mr Armati is a former magistrate. As with any decision the subject of judicial review, the reasons of the Tribunal must be read as a whole and the Court should not be too concerned with "looseness of language" or "unhappy phrasing". Nor should the reasons of the Tribunal be "construed minutely and finely with an eye keenly attuned to the perceptions of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [272] (Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ). 2. In the case of determining penalties, as in sentencing, the function of forming an opinion as to the penalty that ought to be imposed requires the Tribunal to undertake the process of "instinctive synthesis" described by McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 ("Markarian") at [51]: "... the method of sentencing by which the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case."

At [40] and [42]-[61], the Tribunal made finding as to background facts as follows: "40. This being a severity appeal, the appellant does not dispute that he was the trainer who presented the subject horse to race and that it had in it cobalt in excess of the threshold. 42. The precise date on which this appellant acquired the subject horse is not in evidence, but it is sometime after the horse had its first race on 11 November 2017 and after it was presented to the Agnes Banks Equine Clinic on 27 April 2018. 43. The clinic records are in evidence for that admission. They show the horse was admitted for scouring and underwent various treatments over five days. It was in intensive care. 44. Dr Lee from the clinic provided a report to the then trainer, Mr Jurd, on 2 May 2018 on discharge. In summary, reference was made to mild dehydration, which improved, but the diarrhoea continued. By 2 May, the horse was virtually clear of those symptoms. 45. There is no evidence of the horse suffering any health-related issues from its discharge on 2 May 2018 until it became unwell on just before 11 October 2018. The horse was then under the care of the appellant. 46. The appellant, relying upon his experience but not taking any veterinary advice, determined to treat the horse because "it was a bit crook and had a gastro thing for a few days". The symptoms were described as loose manure and white gums. He formed the opinion the horse was dehydrated. 47. It is the appellant's evidence that he injected Hemoplex, 10 mls, on 11 October, 10 mls on 12 October and 20 mls on 13 October. 48. The appellant's log book is in evidence and the stewards' inquiry was much engaged in trying to ascertain if that log book had been truthfully and accurately written up. 49. Those concerns arose because the marking for 11 October clearly shows it was originally written as 12 October; 12 October clearly written as 13 October; and 13 October clearly written as 15 October, with the word "SAT" written next to the date. The log book as seen by the stewards shows the dates being 11, 12 and 13. The Tribunal notes that the relevant Saturday was the 13th. 50. The Tribunal further notes that at the stable inspection on 21 December 2018, the stewards visited the appellant's premises without having given prior notice of that visit. Immediately, the subject log book was called for and produced and the dates, as they are set out in the evidence, were written in the log book at that time. 51. On the face of those facts, there was no reason for the appellant to have improperly amended his records to exculpate himself from an administration closer to race day. 52. There was no evidence led, nor was it the part of the respondent's case, that there might be an examination of the fact that as the horse won the subject race and was the subject of a urine sample, that the appellant would have been put on notice that if there was a positive, his log book would be called for and therefore he should ensure it was written up to exculpate him. That case was not advanced and is not further examined. 53. The Tribunal notes that at the stewards' inquiry, the appellant simply did not know how the dates recorded in the log book came to be there. Regardless of the accuracy of the dates and when they were changed, the appellant was adamant that he would not have given it the Hemoplex the day before the race. The appellant acknowledged that there were no other parts of the log book in which he had incorrectly inputted dates and made amendments. 54. The issue of the accuracy of the log book is subject to the character test identified earlier. 55. After the last Hemoplex injection, the horse's condition settled down and it was determined by the appellant it was well enough to be worked and to race. 56. The Tribunal notes that the appellant must have considered the horse well at presentation to race because he was aware of his duty to inform the stewards if there was any doubt about that fact when the horse was presented to race. 57. As a result of another presentation, the horse was subject to a blood sample on 5 November 2018. The horse produced a reading of 9 in plasma on 5 November 2018. The threshold is 25. 58. It is the appellant's evidence that nothing else was given to the horse except the normal feed and the Hemoplex and no one else gave anything to the horse. 59. The appellant also stated that he ceased using Hemoplex after the stable inspection on 21 December 2018 when he found out about the positive for the first time. 60. The appellant also gave evidence to the stewards that the horse had won on 19 occasions since the positive presentation without having had Hemoplex and without having produced any positives. 61. The stewards questioned the appellant at length at the stable inspection and at the inquiry on the feed and supplements he gave the horse. Those do not need to be set out as nothing remarkable was found, there is an acceptance that there can be cobalt present in them and there is cumulation from their consumption, but nothing alone to cause an elevated reading."

Some of the Tribunal's findings, in that respect, warrant specific mention: "63. The Tribunal again notes that it is only analysing the evidence relevant to the outstanding issues and not to the numerous issues canvassed in the evidence and the reports. … 67. Dr Major concluded that the most likely explanation for the reading was accumulated exposure to cobalt-containing substances in feed, vitamin and mineral supplements. That is, the course of Hemoplex injections was a major contributor. To this must be added the horse's previous exposure and the continuing intake in feed and supplements. … 69. Dr Wainscott gave non-controversial evidence about cobalt as a substance. 70. He noted a standard intake of cobalt from diet would be 5 to 10 milligrams per day. He noted that cobalt deficiencies have never been recorded in a horse. 71. He was questioned as to whether the injections would have assisted the illness. Dr Wainscott stated: " … I don't think it would have made any difference, but I can certainly understand Mr McCarthy's thought process and why he did it. It's a - as we know, it's a legitimate medication. It's a - it's at the high end of the dose, if you like, but it's still well within what would be considered to be a reasonable treatment regime. I've got no concerns with his regime at all, no." … 74. He summarised the results of all of those trials as being that the cobalt levels go above the threshold of 100 but are all under that threshold in 12 hours or less. He conceded that the trials only had a total of 20 horses but that the results were consistent across the horses and the levels would only remain above the threshold for 12 hours. 75. Critically, Dr Wainscott conceded that none of those horses had been sick and none of them were in work. 76. Dr Wainscott then was asked about a horse that had been sick and he said: " … if you have got a sick horse and it's perhaps got intestinal conditions, that the permeability of the gut, if you like, will alter and, yes, absorption can change, but - and it can go both ways. If you've got an inflamed gut, the water gets retained in the gut. It gets sort of pushed out from the body, if you like. The barrier, if you like, becomes much more permeable and that results in diarrhoea … I wouldn't dispute that." … 80. Dr Wainscott maintained that the reason for the high reading was not that the horse was sick and treated with Hemoplex. He stated: "It's inconsistent with the results of all the administration trials." … 82. Dr Wainscott then opined that: "A level over the threshold is either the result of either an administration of a registered therapeutic product on race day, or the administration of a high cobalt dose sometime before the race." … 87. Critically, Dr Wainscott stated that the treatment recorded in Mr McCarthy's log book would not produce the result here and would be inconsistent with the results of the numerous administration studies that have been done. 88. Dr Wainscott conceded that his opinions were based solely upon the administration studies he had referred to. … 95. Dr Wainscott was not able to explain the reading on 5 November 2018. Dr Wainscott was not able to concede the scenario or option advanced by the appellant that the horse was not processing cobalt properly. He said there were simply too many variables and while there was nothing to support it, there was nothing to contradict it, either. Dr Major's report of 3 September 2019 96. Dr Major remained of the opinion that Hemoplex was the overwhelming contributor to the level recorded, which was an outlier from the stable average, and that it flowed from the intense supplementation provided to the horse because of its previous severe illness. … 100. Dr Major noted that the studies relied upon did not involve stressed, dehydrated or previously ill horses and the horses had no known exposure to cobalt through feeds or other supplements. 101. In relation to Dr Ho's report, he said the horses were not in work and had no previous exposure to cobalt. 102. In relation to the remaining studies by SCEC, he noted the wide range of values. He also said that none of those studies replicated the regime embarked upon by the appellant here. 103. Therefore, he concluded that the results here were not contrary to the studies. … 106. Dr Wainscott, having noted that the scouring problem was in April 2018 and agreeing that diarrhoea is a stress-related illness, noted the horse recovered fairly quickly. 107. He then again stated that he was unaware of any studies showing any illness that may cause a horse to retain cobalt. 108. Dr Wainscott was of the opinion that the diarrhoea three days before the subject race would not account for the urinary cobalt reading. 109. Dr Wainscott was of the opinion that there is no evidence the horse was in a water conservation mode that might have any effect upon the concentration of cobalt. 110. Dr Wainscott felt that Dr Major's opinion that the diarrhoea would amplify the cobalt concentration was merely speculative. 111. Dr Wainscott opined that Dr Major's opinion that the horse was gravely ill was overstating the situation. 112. Dr Wainscott repeated that the April 2018 admission would not have contributed to the high readings here. 113. Dr Wainscott was of the opinion that a dietary intake of 5 milligrams (corrected from 5 to 10 milligrams at the inquiry) was not such that it, being at the lower end of a normal range, would have contributed in any way. 114. Dr Wainscott was of the opinion there was no evidence of other sources of cobalt in the stable. 115. Dr Wainscott was of the opinion there was nothing remarkable about the feeding or supplement regime of the subject horse. 116. Critically, Dr Wainscott stated that the injection regime was not the overwhelming contributor to the positive because that was not consistent with every administration trial conducted using either this or very similar registered products at similar therapeutic levels. 117. Dr Wainscott then identified an unpublished study by Robinson (no date given) where a therapeutic product was used and the levels only remained slightly above the threshold for 24 hours. With a five-week course, they were still only marginally above the threshold 24 hours after the last administration. Therefore, Dr Wainscott was further of the opinion that Hemoplex had no significant effect on the recorded urinary cobalt concentration."

The Tribunal made a series of findings which concerned the character or credibility of the plaintiff: "215. That determination is very much driven by the positive determination that is made on the character of the appellant. Character is raised on the basis of whether the Tribunal can make that favourable determination of blameless etc. 216. The respondent does not challenge the appellant's character on subjective features but has essentially not addressed against such a finding on the blameless test. 217. The Tribunal has set out at length the character of the appellant and his subjective facts. It is not necessary to repeat them. 218. There is particular comfort found in a positive determination on this part of the character test on the basis that the appellant has had some 15,000 prior starters with no positives. No reason for him to breach the subject rule has been established and, to the contrary, he satisfies the Tribunal that he has no reason to have breached the rule on this occasion. 219. The Tribunal therefore accepts the appellant's case that he, having no reason to breach the rule, is to be accepted where issues of fact are grey. 220. Despite the paucity of his recollection at the stewards' inquiry on the entries in his log book, the Tribunal accepts that the log book entries are an accurate statement of the dates on which the three Hemoplex injections were given and their quantity. 221. The Tribunal is comforted in those conclusions and as to the explanation given by the appellant on those matters by reason of the fact that there appears to be no suspicious conduct in which he engaged. For example, there is no betting concern to the regulator and the subject drug is not an EPO, nor does it enhance performance, and nor are there any welfare issues. 222. Likewise, the Tribunal accepts the appellant's evidence that he gave nothing else to the horse than that which he has told the stewards at the stable inspection and at the inquiry. 223. The Tribunal accepts that the Hemoplex was a legitimate and commonly used horse medication which was properly administered on each of the three occasions documented and appropriate withholding periods were adopted. The evidence establishes that the third injection was atypically high and the three injections themselves, as stated by Dr Major, were atypically intensive. 224. It is also accepted that the two subject readings were outliers. 225. It is also an agreed fact and accepted that cobalt can be cumulated in the body of the horse. 226. It is also accepted that the plasma reading on 9 November at 9.4 compared to a threshold of 25 does raise a clarion call, as was submitted at the stewards' inquiry on behalf of the appellant. 227. It is also accepted that Dr Wainscott was not able to provide an explanation for that plasma reading as against the issues for determination on the presentation. 228. There is the fact that after Hemoplex was stopped that there were 19 races with no positive." (Emphasis added.)

The Tribunal then proceeded to examine the administration reports to which Dr Wainscott referred. The Tribunal referred to the nature of those studies and various arguments about the same as follows: "229. The appellant also establishes that in respect of the five study reports to which Dr Wainscott took the Tribunal, there are certain issues identified which require consideration as to the reliability placed upon those study results by Dr Wainscott. It being noted that Dr Wainscott's opinions as to the cause of the elevated reading was based upon his assessment of those five studies. 230. Dr Wainscott accepted that in each of the studies, healthy racehorses were used. He conceded that none of those horses in the five trials was in work, sick, not possibly dehydrated, and were ones for which there was no known exposure to cobalt prior to the testing. 231. It is noted also that Dr Major was of the opinion that the results here of the presentation and the plasma reading were not inconsistent with the studies. 232. The appellant therefore says that the diarrhoea issue in April 2018 and the diarrhoea issue which led to the administration of the Hemoplex before the race indicate that the horse was gravely ill and that fact, coupled with the general cumulation and coupled with the fact of the impact of the Hemoplex injections, provides the explanation for the positive reading. That is said to be based upon the fact that the horse was not processing the Hemoplex properly. 233. Reinforcement in that submission was based upon what was said to be an outlier reading on 5 November in plasma. 234. Therefore, it is said these are inexplicable readings with no reason for the appellant to do it and consistent with the horse having problems. 235. It is said that with the respondent not able to exclude the appellant's theories, that he has established to a comfortable level of satisfaction that he was blameless. 236. On the respondent's behalf, the Tribunal notes Dr Wainscott's theory that the level above the threshold was the result of an administration of a registered therapeutic product on race day or the administration of a high cobalt dose sometime before the race. 237. The respondent says that the appellant has not established to the requisite standard that he was blameless. 238. Reliance is placed upon the five study reports which all indicate elimination times within 12 hours. Here, the gap was much greater. 239. It is noted Dr Wainscott said that the various challenges to those studies did not cause him to come to a different conclusion. 240. In particular, Dr Wainscott opined that the April illness was of no relevance, the diarrhoea prior to the race was not at a sufficient level to be of concern, and the Hemoplex as recorded would not have caused the elevated reading. 241. As to the plasma levels, it is noted Dr Wainscott was not concerned by those and had in fact seen higher ones and that that level was not inconsistent with the findings in Ho. 242. It is noted that Dr Wainscott was of the opinion that the appellant's theory was speculative. 243. Dr Wainscott was reinforced in that conclusion as there was no evidence of other sources and in particular the feed and supplementary regimes were quite normal."

The Tribunal's conclusion in that respect were as follows: "244. The Tribunal particularly finds that there is no health issue for the subject horse between its diarrhoea in April 2018 and its lesser diarrhoea in the few days before the presentation. That is, there is nothing to indicate that this horse had any inherent illness which may have been in some form ongoing to indicate that it was, therefore, generally unwell, or constantly unwell, or so unwell that an explanation immediately arises because of that alone or taken in conjunction with any of the other factors argued by the appellant. 245. That is reinforced by the fact that there is no veterinary advice or, indeed, evidence of the appellant as to any problems between April and October 2018 with the horse. 246. The Tribunal noting that the October 2018 illness was of such minor severity that the appellant did not seek veterinary advice in respect of it and relied upon his own experience in self-determining to administer the Hemoplex in the fashion that he did. It is accepted that Hemoplex may have caused the horse to recover, or, indeed, it may have recovered absent the Hemoplex, but it is not able to be determined which of those is the fact. 247. The Tribunal finds that the horse had returned to a normal state immediately after the conclusion of the Hemoplex injections and that the appellant was able to work the horse, formed the opinion that there was no condition required to be reported to the stewards and then presented the horse to race. The Tribunal is particularly persuaded that there is no evidence that after the race this horse had any symptoms that may have indicated it was in any way unwell. 248. Therefore, the Tribunal finds that the basis of the appellant's theory on diarrhoea as being a contributor is very weak. 249. The Tribunal finds also that the administration studies have not been shown to be of no weight or little weight or otherwise able to be downgraded. 250. The Tribunal is reinforced in that conclusion in that there are no contrary studies, to the five in question, advanced by the appellant which would indicate that any of the various matters identified, taken individually or collectively, mean that the results of those studies should not be accepted. Therefore, when considered individually and collectively, the fact that the subject horses in the studies were not in work, were not sick, had an unknown level of dehydration and had no known exposure to cobalt, do not mean that those study results are not to be given weight. 251. The Tribunal therefore finds that each of those matters which are said to cause the studies to be read down are entirely speculative and of no weight. There is no particular established fact on those speculative theories upon which weight can be placed. 252. That is not to say that subsequent research may well establish that those matters do cause those studies to be reconsidered, but that is not the current state of the evidence available to the Tribunal. 253. Absent, therefore, any established cause which has not been overcome by the respondent, the Tribunal is left with the opinions formed by Dr Wainscott based upon those administration trials. 254. Those trials established that the Hemoplex administered to this horse must have been eliminated well prior to its presentation. 255. The Tribunal does not come to a contrary conclusion on the clarion call submission that the 9 November plasma reading should be given weight to support the theory that this horse was continually unwell such that there is an explanation for the presentation reading. 256. The Tribunal notes Dr Wainscott rejected that as being a reason even though he was not able to explain that reading." (Emphasis added.)

The three categories which were identified in that respect were as follows: 1. The Category 1 was as follows (at 9): "First where through investigation, admission or other direct evidence the Authority, in this case Harness Racing Victoria, can establish before the Tribunal a positive culpability on the part of the person responsible, perhaps the trainer. The Tribunal gave an illustration in this respect of the trainer administering the drug to the horse himself or by his direction or having otherwise acted in a way instrumental to the commission of the offence. This category was intended to deal with "deliberate wrongdoing" or "through ignorance or carelessness or something similar"." 1. The Category 2, which was described as "the most commonly experienced scenario" was described as (at 9): "Secondly, where at the conclusion of any evidence and plea the Tribunal is left in the position of having no real idea as to how the prohibited substance came into the horse. This may be with the trainer giving some explanation which the Tribunal is not prepared to accept or the trainer may simply concede that he has no explanation." 1. This category was described as commonly arising where the stewards "have no idea as to how it is in the case of any horse race that the prohibited substance came to be in it". The Tribunal indicated that it is possible to speculate on the many ways that a horse may present with a prohibited substance and that "[the] number of examples one can contemplate is manifold" (at 9-10). 2. Category 3 was described as follows (at 10): "Thirdly, the trainer (or other person being dealt with) may provide an explanation which the Tribunal accepts and which demonstrates that the trainer has no culpability at all. An obvious example would be if the trainer could satisfy the Tribunal that his horse had been nobbled and it had been nobbled notwithstanding the presence of reasonable measures to prevent same. And of course there could be various other factual scenarios where the horse could somehow be the subject of the administration or ingestion of a prohibited substance without any culpability either directly or indirectly on the part of the trainer. This category represents cases where the trainer does establish to the Tribunal's satisfaction, the onus being on him, that he is free of blame, that he himself was not instrumental in the administration of the prohibited substance and that he has done all he could be expected to do to prevent same."

However, I do not accept the plaintiff's alternative contention that the only conclusion open to the Tribunal was that the positive swab occurred for the reasons advanced by the plaintiff for the following reasons based upon the findings of the Tribunal: 1. Dr Major who had been called by the plaintiff expressed a view essentially that the horse was ill at around the time of the race and the cobalt contained within the Hemoplex would not have been processed out of the horse in the usual way because of accumulation. Dr Wainscott did not accept that the horse was ill and, in that context, relied upon administration studies that showed a particular rate of cobalt moving out of a horse after its administration. 2. In substance, the Tribunal accepted Dr Wainscott's evaluation of the state of the horse at or about the time of the race and his use of administration studies. The Tribunal found: 1. There was no health issue for the horse between its diarrhoea in April 2018 and its lesser diarrhoea in the few days before presentation such that there was nothing to indicate that the horse had any inherent illness or some ongoing illness that indicated that it was generally unwell (at [244] and [246]). 2. The horse returned to a normal state after the Hemoplex injections and was worked. There was no opinion expressed that the condition of the horse required reporting to stewards before the race and the horse was presented for the race. Hence, the Tribunal rejected the plaintiff's theory that diarrhoea was a contributor (see [247]-[248]). Dr Wainscott's administrations studies had not been shown to be of little or no weight or "otherwise able to be downgraded" as submitted by the plaintiff (at [249]). 3. There are no contrary studies to those proposed by Dr Wainscott. The Tribunal concluded "the fact that the subject horses in the studies were not in work, were not sick, had an unknown level of dehydration and had no known exposure to cobalt, do not mean that those study results are not to be given weight" (at [250]). 4. In the result, the opinions formed by Dr Wainscott from the administrations studies were accepted by the Tribunal such that the Hemoplex applied in the present case must have been eliminated prior to the horses presentation (at [253]-[254]). Plasma readings did not alter this conclusion (at [255]). 5. The readings taken from the horse were high and were well above the threshold elimination times (at [257]). This resulted in a rejection of what was known as theory 2, namely, the plaintiff's proposition that the horse did not process the cobalt through its system (see at [17]). 1. In relation to possible environmental exposure, the Tribunal did not rule this out or reject it as a possibility. Rather, it said at [259] of the decision that "Nothing about the environment as a contributing factor has been factually established". That is, the Tribunal found that it had not been established that the environment was a contributing factor, not that it definitively was not a factor. 2. In relation to administration by a person unknown, the Tribunal again did not rule this out or reject it as a possibility. Rather, it said at [172] of the decision that it was not the subject of submissions or canvassed by the evidence, such that the Tribunal could not further examine it. That is, the Tribunal did not reach a conclusion on the involvement of a third person one way or the other.

As mentioned at the outset of this decision, the plaintiff made supplementary submissions as to the applicable test for judicial review on the basis of legal unreasonableness, irrationality or illogicality in a decision-maker's fact finding process.
In those supplementary submissions, the plaintiff contended, after noting that traditional grounds of review are not exhaustive and do not constitute a rigid taxonomy, and after extracting some passages from a well-known text on administrative law [19] that cases in which legal unreasonableness, illogicality or irrationality have been found to have vitiated decisions under judicial review may be broadly classified as falling within five types. Without reference to the authorities relied upon for each classification, save as to the fifth category, the five categories identified by the plaintiff were as follows: 1. Cases in which the outcome itself is seriously unreasonable; the operative error that caused the outcome to go wrong may or may not be able to be identified from the reasons but, if not, it is to be inferred from the unreasonableness or irrationality of the result. 2. Cases in which some procedure has gone wrong, which might be a failure of procedural fairness to give an appropriate form of hearing or to actually engage with a substantial case or a failure to exercise a power of inquiry when the circumstances call for it or the decision-maker failing to put itself in an appropriately informed position to made a decision or ignoring or misunderstanding critical material that it did have. 3. Cases in which the reasoning process has gone badly wrong: the error is either apparent from the reasons or the reasons fail to explain something that is otherwise inexplicable in context: this may include material inconsistency between primary findings or between primary findings and inferences or conclusions or other unexplained or illogical leaps. Factual errors on critical matters, including credibility or the application of credibility findings, may also mean that the decision-maker has not come to the decision through an intelligible process or that the decision is "devoid of plausible justification". 4. Cases which are affected by multiple errors of the one kind or different kinds, which may include errors expressed as other grounds, such as the failure to actively engage with a substantial case or failing to apply a correct legal principle but where one or more of the errors alone might not have been enough to establish a jurisdictional error but the accumulation of error tips the balance into serious unreasonableness. (Any error of law might be sufficient to establish non-jurisdictional error of law subject to it being on the face of the record and sufficiently material that relief would be granted, materiality being a low bar of a realistic possibility that a different outcome could have been reached.) 5. Some combination of the above (eg Wood v Secretary of the Department of Transport on behalf of the Government of New South Wales [2021] NSWSC 1248 (Schmidt AJ); Schmael v Leach [2020] VSC 562 (Richards J)).
From those contentions there sprung the submissions to which I have earlier referred which sought to bring into Grounds 1 and 3 of the appeal aspects of the legal unreasonableness, illogicality, and irrationality. Those submissions were as follows: "The amended summons in this case pleads three grounds of review, in an admittedly ungainly fashion. Ground one invokes traditional concepts of misdirection and failure to apply correct principles but its complaint as to the failure to carry through the credibility findings actually made to the acceptance of expert evidence also fits within unreasonableness type three (failure of reasoning process or error in applying credibility findings). Ground two complains of an illogical conclusion reached by a process that lacks evident and intelligible justification given the inconsistency between the primary factual findings and the conclusion achieved by inexplicable leaps or reverses and this ground fits within unreasonableness types one and three. Ground three again invokes a traditional ground of improper fettering of the discretion but also that the Tribunal failed to engage with the plaintiff's case that some penalty other than disqualification should be considered and so also fits within unreasonableness type two. The cumulative effect of the complaints about the approach to penalty-fixing and the reasoning process in all three grounds taken together would bring the decision within unreasonableness type 4."
The plaintiff then embarked upon some entirely new submissions which sought to draw a comparative analysis with other judicial review decisions. The plaintiff described these as exemplar decisions for the purposes of the present proceedings in which a decision was set aside on judicial review for legal unreasonableness or irrationality. I will touch upon these examples below but in doing so note that the High Court has cautioned against this form of analysis, that is, analysis of factual similarities or differences between individual cases as a way of assessing whether a decision was legally unreasonable: Minister for Immigration & Border Protection v SZVFW (2018) 357 ALR 408; [2018] HCA 30 ("SZVFW") at [84].

My observations in relation to the exemplar decisions are as follows: 1. Kavanagh was essentially concerned with two issues. The first involved the question of liability and the proper construction of a particular rule of the Rules of Racing (namely, AR 175(h)(ii): see [40]). The second issue went to the question of penalty and, in particular, the decision of the Tribunal to reduce penalty by reason of special circumstances. The first issue did not concern the question of legal unreasonableness arising from the Tribunal's fact finding process. In a second case, the Tribunal's decision was found to be legally unreasonable because the reduction in penalty by 11% was unexplained and arbitrary. There does not seem to be an appropriate connection with the present matter. 2. To the extent that it might be suggested that the analogy arises by way of consideration of contradictory findings, I have found such a condition does not affect the Tribunal's decision in this case. So far as the plaintiff's position as to the question of general deterrence or an example being made of the plaintiff, in my view, as will be discussed further below, the principles of general deterrence were open to the Tribunal to take into account as a factor in sentencing in this matter including the imposition of a penalty of the disqualification of the plaintiff in the facts and circumstances of this case. 3. The plaintiff made reference to IAG Ltd v Sleiman (2017) 82 MVR 1; [2017] NSWSC 1346 to draw comfort from a conclusion that the assessor had engaged in an unexplained 'leap' in the assessment of post-accident weekly wages and the absence of an evident and intelligent justification. Again, reliance was placed by the plaintiff upon irrational inconsistencies but, as I have observed (and will observe), the Tribunal embarked upon a consideration of whether the plaintiff had established, on the evidence, what caused the positive result entirely consistently with the case put by the plaintiff. It was open to the Tribunal to conclude, as it did, that he had not done so, the cause was unknown and then to determine the appropriate penalty on that basis, when considered in the light of the entirety of the facts and circumstances of the case. 4. As to Bayley v Nixon [2015] VSC 744 ("Nixon"), in that case an independent reviewer had made a decision that legal aid should not be provided on the particular facts of that case because it was not reasonable to do so. However, his reasons did not provide any explanation for why this was so (at [54]-[62]). This was, therefore, said to constitute legal unreasonableness. Again, for reasons I have earlier given, there is no useful analogy to be drawn with the present case. Nor is the plaintiff's reliance upon the italicised passage from Nixon of assistance in this matter, particularly having regard to the Tribunal's conclusion at [294] where the Tribunal stated its assessment was part of the overall facts and circumstances of the case going to penalty. 5. Similarly, where the cause of the positive result had not been established, there was a proper basis, in the light of the overall facts and circumstances considered by the Tribunal, to find the general deterrence made a disqualification appropriate. This is particularly so where the regulation of positive results serves a central feature of the role of the first defendant and is consistent with the HR Act and the AHRR. Further, I agree with the submission for the first defendant that the Tribunal's conclusion in this respect was not inconsistent with [271]. That paragraph simply concerned the fact that cobalt is not performance enhancing. The conclusion was also not inconsistent with [273]-[276]. Those paragraphs were primarily addressing matters relating to the character of the plaintiff. 6. Furthermore, in a consideration of the exemplar decision and in the discussion of particular aspects of the Tribunal's decision said by the plaintiff to be properly characterised as irrational, illogical and legally unreasonable reasoning, it is important to bear in mind that, as earlier mentioned, the High Court has emphasised in this context that the Court must not stray into evaluating for itself how it might exercise the powers entrusted to the decision-maker. As I have discussed earlier and will discuss below, there are no material inconsistencies in the Tribunal's reasoning and, in any event, to the extent a contrary view was formed, none that meet the test of legal unreasonableness, irrationality or illogicality in law.

In essence, that path of reasoning by the Tribunal bearing upon this Ground was as follows: 1. Paragraph [7] of the decision provides that, from the numerous expert reports, the parties narrowed down the issues between the experts a few days before the Tribunal hearing. Those issues were at [8]: 1. Gastro; 2. Dehydration; 3. Hemoplex; or 4. Horse not processing cobalt through its system. 1. Those issues constituted part of the plaintiff's position about what caused the positive reading and why he may not be "blamed" for the reading in the horse at the race (at a prescribed level). The combination of issues 1, 2 and 3 would result in the horse not properly processing the cobalt through its system, as constituted in theory 2 (set out earlier in this judgment at [71]). At [9] of the decision, the Tribunal stated that 12 issues were no longer pressed. Those 12 issues are set out earlier in this judgment at [69]. Those issues were previous matters potentially advanced by the plaintiff and others, in order to explain the positive readings of cobalt detected in the horse which were no longer being advanced before the Tribunal. 2. At [16] and [17], the Tribunal noted at the inquiry, counsel for the plaintiff identified 3 theories for consideration and, essentially, before the Tribunal, 2 of those theories were identified as being encompassed by the list of remaining issues to which the evidence before the Tribunal was addressed. The two theories advanced are set out earlier in this judgment at [71]. However, for clarity, theory 1 was that the horse received cobalt from some other source in addition to which had been disclosed because it had a positive reading, namely, the feed regime or treatment given on the three consecutive days before the race. Under theory 2, the horse was said to not be processing and thereby expelling cobalt as expected for horses in ordinary health or physiological action per medium of studies. 3. The Tribunal made findings of fact regarding the health of the horse: 1. At [42], the Tribunal made a finding of fact in terms of the sickness of the horse that the horse was presented to the Agnes Bank Equine Clinic on 27 April 2018. 2. The Tribunal noted at [44] that by 2 May 2018, the horse had been discharged and was virtually clear of those symptoms of mild dehydration and diarrhoea. 3. At [45], the Tribunal noted there was no evidence of the horse suffering any health-related issues from its discharge from 2 May 2018 until it became unwell shortly before 11 October 2018. 4. At [55], the Tribunal observed that, following the last Hemoplex injection, the horse's condition settled down, and the plaintiff determined that it was well enough to be worked and to race. 5. At [56], the Tribunal reasoned that the plaintiff must have believed the horse was well enough at presentation because he was aware of his duty to inform the stewards if there was any doubt about that fact when the horse was presented to race. 1. That part of the path of reasoning formed the basis for the Tribunal's later finding that it was not satisfied that the horse was sick by race day. 2. At [63], the Tribunal noted, in considering the expert evidence, that it was only analysing the evidence relevant to the outstanding issues and not to the numerous issues canvassed in the evidence and reports. 3. The Tribunal set out some of Dr. Wainscott's evidence at [80] and noted Dr Wainscott had opined that the reason for the high reading was not due to the horse being sick and treated with Hemoplex. He stated that "it's inconsistent with the results of all the administration trials", a view the Tribunal ultimately accepted. 4. The Tribunal continued (at [82]) to discuss Dr Wainscott's theory that the high reading was either administration of a registered therapeutic product on race day or the administration of a high dose of cobalt sometime before race day. 5. At [87], the Tribunal noted that, critically, Dr Wainscott stated that the treatment recorded in the plaintiff's log book would not produce the reading and would be inconsistent with the results of the administration studies. 6. In light of Dr Wainscott's evidence, the Tribunal observed at [95] that "Dr Wainscott was not able to explain the plasma reading on 5 November 2018". He was not able to concede the theory (that is, theory 2) advanced by the plaintiff that the horse was not processing cobalt properly because there were too many variables. The Tribunal noted whilst there was nothing to support that theory; there was nothing to contradict it either. 7. As to the evidential question in terms of the sickness of the horse, the Tribunal observed that Dr Wainscott, conceded there was a scouring problem in April 2018, but noted the horse recovered fairly quickly [106]. Further, the Tribunal recorded at [107]-[108] that Dr Wainscott was unaware of any study showing illness that may cause a horse to retain cobalt and further opined that the diarrhoea three days before the race would not account for the "urinary cobalt reading". 8. At [106]-[111], the Tribunal ultimately accepted the evidence of Dr Wainscott in circumstances where there were conflicting opinions between Dr Wainscott and Dr Major, particularly, where Dr Wainscott considered that "Dr Major's opinion that the diarrhoea would amplify the cobalt concentration was merely speculative" and "Dr Major's opinion that the horse was gravely ill was overstating the situation". 9. At [172] the Tribunal stated, "no consideration had been given by the plaintiff to the fact that someone else may have administered the substance. In the absence of that being the subject of detailed submissions… the Tribunal does not further examine that issue." 10. The plaintiff contended that at [172] the Tribunal was improperly excluding potential causes stating an external contributor was not the cause. However, the Tribunal merely noted that there had been no canvassing of that issue, and, in the result, it did not reach a conclusion, particularly in circumstances where the onus was on the plaintiff to prove how the positive reading occurred (if the plaintiff wanted to demonstrate McDonough Category 3 was applicable). This passage should be properly understood to mean that the Tribunal would not make rulings on issues that have not been advanced by the plaintiff as the cause of the positive reading. 11. I have dealt with the Tribunal's approach in [207] and [208] earlier in this judgment. 12. The Tribunal (at [222]) rejected a cause that the plaintiff administered anything else to the horse other than which he had told the stewards at the stable inspection and at the inquiry. 13. At [240], the Tribunal noted that "Dr Wainscott opined that the April illness was of no relevance, the diarrhoea prior to the race was not at a sufficient level to be of concern, and the Hemoplex as recorded would not have caused the elevated reading". 14. The findings of the Tribunal at [244]-[249], as set out earlier in this judgment at [79], concern with how the Tribunal had identified and resolved the issue as to health of the horse on the day of the race and the competing opinions of Dr Wainscott and Dr Major. In particular, the Tribunal made the following factual findings: 1. "there is no health issue for the subject horse between its diarrhoea in April 2018 and its lesser diarrhoea in the few days before the presentation." [244]. 2. "That is, there is nothing to indicate that this horse had any inherent illness which may have been in some form ongoing to indicate that it was, therefore, generally unwell, or constantly unwell, or so unwell that an explanation immediately arises because of that alone or taken in conjunction with any of the other factors argued by the appellant." [244]. 3. "…there is no veterinary advice or, indeed, evidence of the appellant as to any problems between April and October 2018 with the horse." [245]. 4. "The Tribunal noting that the October 2018 illness was of such minor severity that the appellant did not seek veterinary advice in respect of it and relied upon his own experience in self-determining to administer the Hemoplex in the fashion that he did." [246]. 5. "The Tribunal finds that the horse had returned to a normal state immediately after the conclusion of the Hemoplex injections and that the appellant was able to work the horse, formed the opinion that there was no condition required to be reported to the stewards and then presented the horse to race. The Tribunal is particularly persuaded that there is no evidence that after the race this horse had any symptoms that may have indicated it was in any way unwell." [247]. 6. "…the Tribunal finds that the basis of the appellant's theory on diarrhoea as being a contributor is very weak." [248]. 7. "The Tribunal finds also that the administration studies have not been shown to be of no weight or little weight or otherwise able to be downgraded." [249]. 1. At [253], the Tribunal stated, in the absence of any established cause which has not been overcome by the plaintiff, "the Tribunal is left with the opinion formed by Dr Wainscott based upon those administration trials". Those trials established that the Hemoplex administered to the horse must have been eliminated well prior to its presentation. 2. Dr Wainscott formed the opinion that the administration of Hemoplex would have been expelled out of the horse's system by the time of testing. In that respect, Dr Wainscott's opinion was consistent with the Tribunal's earlier findings that weight should be given to those administration trials because it determined that it was not satisfied of Dr Major's opinion "that Hemoplex was the overwhelming contributor to the level recorded, which was an outlier from the stable average, and that it flowed from the intense supplementation provided to the horse because of its previous severe illness" at [96]. 3. At [259], the Tribunal found that "nothing about the environment as a contributor has been factually established." I agree with the submission for the first defendant that, in part, the Tribunal's reasoning suggested that because the plaintiff was no longer pressing environment as an issue or contributor to the high reading, then the Tribunal would not make rulings on the issue as the onus was on the plaintiff to factually establish environment as a cause. 4. At [260], the Tribunal found that the combination of "unwell, cumulative effect, feed and supplements and injections" do not explain the positive reading. 5. At [261], the Tribunal again mentioned that it accepted the plaintiff's evidence that he not administered anything else to the horse. 6. Then at [262], the Tribunal noted that the plaintiff failed to establish a comfortable level of satisfaction that he was blameless. This finding related to the McDonough Category 3 proposition advanced by the plaintiff. 7. At [263] the Tribunal found, "the appellant fails to establish the horse did not process the cobalt through its system as opined (theory 2). There is the consequential finding that it received cobalt from another source but what it was is not known (theory 1). But in neither case do those theories assist the appellant". I agree with the submission by the first defendant that the decision should be properly understood in this respect as meaning it had determined the plaintiff failed to establish theory 2, which left the Tribunal with theory 1. Theory 1 was not aptly described because it was not a theory, rather, it meant that that there was some other unknown source. This led to the principles under McDonough Category 2 being taken into account and, thus, this is why the Tribunal indicated those theories did not assist the plaintiff.