Plaintiff v First Defendant

(a) he was not afforded natural justice;

(b) two errors of law were made by the Tribunal in its construction of the Rules as applied in his case; and

(c) the Tribunal failed to take account of expert evidence called by Mr Harris to the effect that the source of the prohibited substance could not be detected, making the Tribunal's decision 'unsafe'.

1. Mr Harris' principal complaint about the liability decision stems from the sample testing process undertaken by Racing Analytical Services Ltd (RASL) and Australian Racing Forensic Laboratory (ARFL), both Official Racing Laboratories under the Rules. Mr Harris did not dispute that dexamethasone above the screening limit was present in the Sample, or that the control sample did not test positive. The core argument advanced by Mr Harris before the Tribunal and this Court was that the testing conducted on the Sample was not fit for purpose and that the resulting testing certificates did not comply with the relevant Rules, namely AR 240 and AR 259. In particular, Mr Harris contends that unless a sample is tested for the presence of dexamethasone metabolites, the presence of dexamethasone over the screening limit cannot be conclusively established because of the possibility that the Sample was contaminated at some point during the sampling and/or testing process. Mr Harris submits that where the dexamethasone testing process was not fit for purpose, the Tribunal could not have been satisfied to the requisite standard that dexamethasone was present in the Sample based on the evidence adduced at the Tribunal hearing.
2. A further ground of review is advanced by Mr Harris in respect of the penalty decision, contending that the Tribunal failed to give proper consideration to his culpability.
3. On 16 December 2024, the orders made by the Tribunal on the liability and penalty decisions were stayed, pending the hearing and determination of this proceeding.[6]
4. The trial of this proceeding was conducted on 25 August 2025. Although Mr Harris had initially been represented in the proceeding by counsel, he was self-represented at trial. An application made by him that he be represented by his father, Mr R Harris as a McKenzie friend, was refused by me at trial.[7] Mr R Harris is a retired solicitor who specialised in conveyancing work. Although Mr R Harris did appear with Mr Harris at the liability and penalty hearings, and at some directions hearings in this Court, I was not satisfied that I should exercise my discretion to allow the application. Racing Victoria opposed the application. As it transpired, although Mr Harris made oral submissions on his own behalf, he did so with the assistance of Mr R Harris, who had also prepared a written submission that Mr Harris read from at the conclusion of the hearing.
5. At trial, Racing Victoria raised as a preliminary matter the absence of the Tribunal as a party to the proceeding. An order was made adding the Tribunal as the second defendant on 25 August 2025.[8]

B The Racing Act and the Rules

1. The Racing Act 1958 (Vic) generally regulates thoroughbred horse racing in Victoria.
2. Division 2B of Part 1 is entitled 'Rules of Racing Victoria'. For the purposes of that Division, 'Rules of Racing' is defined to mean 'the rules, for the time being in force, of Racing Victoria'.[9] The Rules are constituted by the Australian Rules of Racing made by Racing Australia, and the Local Rules and Rules of Race Betting of Racing Victoria.
3. Section 5F(1) makes provision for the application to and enforcement of the Rules against, inter alia, a person holding a licence issued by Racing Victoria.
4. Section 6 relevantly provides:

(1) Unless this Part otherwise provides, a race-meeting for horse racing or harness racing or greyhound racing may only be held -

...

(c) in accordance with the rules for the time being in force of Racing Victoria or Harness Racing Victoria or Greyhound Racing Victoria, as the case may be.

1. It is also helpful to set out some of the key Rules relevant to this application.
2. AR 2 is entitled 'Dictionary' and relevantly provides:

Official Racing Laboratory means an analytical racing laboratory which is approved by Racing Australia.

...

Principal Racing Authority (PRA) means a body (statutory or otherwise) recognised as a principal racing authority under Racing Australia's Constitution, that has the control and general supervision of racing within a State or Territory, and comprises:

...

...

Prohibited List B means the list of prohibited substances set out in Schedule 1, Part 2, Division 1 to these [Rules].

...

prohibited substance means a substance specified in these [Rules] to be a prohibited substance, or which falls within any of the groups or categories of substances specified in these [Rules] to be prohibited substances, unless it is specifically exempted.

...

sample means a specimen of saliva, urine, perspiration, breath, blood, tissue, hide, hair, or any other excretion, product or bodily fluid from a horse or person.

...

screening limit means the concentration of a therapeutic substance or its specified metabolite present in a sample during a screening test or analysis as set out in AR 257(2), above which the therapeutic substance will be specified as a prohibited substance.

Serious Offence means an offence under, or breach of, one of the following rules:

...

...

Steward means a person appointed in that role in accordance with the Local Rules of a PRA or by a State or Territory government (or government body) (as applicable).

...

therapeutic substance means a prohibited substance to which a screening limit applies, and which is promulgated and published as such from time to time by Racing Australia.

...

trainer means a person licensed or granted a permit by a PRA to train horses, and includes any persons licensed to train as a training partnership.

1. AR 3 confirms that any person who takes part in any matter or race meeting coming within the Rules agrees to be bound by and comply with the Rules, and AR 4(1)(a) makes plain that the Rules apply to all races held under the management or control of Racing Victoria as a PRA (subject only to any exemption granted under AR 150). It was common ground at the hearing that the Rules applied to Mr Harris as a licensed horse trainer.
2. Part 11 of the Rules is entitled 'Prohibited substances and prohibited methods offences'. Division 2 of Part 11, entitled 'Prohibited substance in a sample taken from a horse', provides for various presentation offences including the subject offence in the Tribunal proceeding, AR 240(2). It relevantly provides:

AR240 Prohibited substance in sample taken from horse at race meeting

...

(2) Subject to subrule (3), if a horse is brought to a racecourse for the purpose of participating in a race and a prohibited substance on Prohibited List A and/or Prohibited List B is detected in a sample taken from the horse prior to or following its running in any race, the trainer and any other person who was in charge of the horse at any relevant time breaches these Australian Rules.[11]

1. Division 9 of Part 11 is entitled 'Therapeutic substances'. AR 257 sets out a comprehensive regime for the analysis of a therapeutic substance (such as dexamethasone) in a sample taken at any time from a horse. In particular, AR 257(1) mandates an initial screening test or analysis of the sample.
2. AR 257(2) provides as a 'minimum requirement' the necessary procedure for an initial screening test or analysis by an Official Racing Laboratory. In summary, the analysis taken from the horse is analysed concurrently with a 'spiked sample' (where a quantity of the 'therapeutic substance or its specified metabolite' sufficient to bring its concentration to the screening limit is added). If the screening limit of the 'therapeutic substance or its specific metabolite' is exceeded in the sample taken from the horse, that sample is to be further tested 'in accordance with normal laboratory procedures designed to certify the presence of the therapeutic substance in the sample'.
3. AR 257(3) provides that both a therapeutic substance and the screening limit applicable to it or its specified metabolite is to be promulgated and published from time to time by Racing Australia. Significantly, it is clear from the Rules that the presence of dexamethasone is measured by reference to the substance and not its metabolite (being the product that is formed when the substance is metabolised). It was common ground at the Tribunal hearing that the applicable screening limit for dexamethasone for the purposes of AR 257 was 0.2ng/mL in urine.[12]
4. AR 257(4) makes plain that a therapeutic substance does not only become a prohibited substance if and when the screening limit is exceeded. Finally, and importantly, AR 257(5) provides:

It is no defence to an alleged breach of AR 240 or AR 241 that the result of any initial screening test or screening analysis should have been below the screening limit for the therapeutic substance in question.

1. Sample analysis and facilitation of proof is addressed in AR 259. It provides that a portion of the sample taken from a horse (the A portion) may be provided for analysis to an Official Racing Laboratory which must both notify and provide a written record of its findings, the 'First Certificate of Analysis'.[13] A second portion of the same sample (the reserve portion), together with any control, is then provided to another Official Racing Laboratory for confirmatory analysis and provision of a Second Certificate of Analysis.[14] AR 259(6) then provides:

If the results stated in the Second Certificate of Analysis confirm that:

(a) the prohibited substance detected in the reserve portion is the same as the prohibited substance detected in the A portion; and

(b) the prohibited substance detected in the A portion and the reserve portion is not detected and quantified in any control of the relevant sample,

then the provision of the Second Certificate of Analysis will, together with the First Certificate of Analysis, constitute prima facie evidence that the relevant sample contains a prohibited substance.

1. The prohibited substance regime is detailed in Schedule 1 of the Rules, entitled 'Prohibited Substances Lists & Exemptions/Thresholds'. It comprises two Parts: Part 1, 'Substances prohibited at all times', and Part 2, relevant here, 'Substances prohibited on race days, certain trials etc'. Division 1 of Part 2 contains Prohibited List B, and sets out those substances specified as prohibited substances. Paragraph 1 of Prohibited List B proscribes 'substances capable at any time of causing either directly or indirectly an action and/or effect within one or more of' the listed mammalian body systems. Paragraph 2 specifies as prohibited substances any substance within, but not limited to, the categories that follow.' Anti-inflammatory agents' are expressly included at sub-paragraph (v).[15] It is also relevant to note that it is specified at paragraph 3 that '[m]etabolites, artefacts and isomers of substances set out at paragraphs 1 and 2 are prohibited substances'.
2. Division 2 of Part 2 identifies certain substances exempted from Prohibited List B. Division 3 of Part 2 sets out further exemptions from Prohibited List B in cases where certain prohibited substances are present in a sample at or below a specified threshold. There are no exemptions identified in either Division for dexamethasone. Indeed, it appears that it was common ground at the Tribunal hearing that dexamethasone was both a prohibited substance and a therapeutic substance for the purposes of the Rules, being a substance falling within Prohibited List B.

1. As noted above, Mr Harris advances four grounds of review in relation to the Tribunal's liability decision. It is helpful to set them out in full:
   1. The Victoria Racing Tribunal, in conducting the hearing on 17 June 2024 did not afford [Mr Harris] natural justice and the decision ought to be set aside as a perversion of justice.

2a In that reaching its decision the Victorian Racing Tribunal made an error of law in interpretation of AR240(2) and AR259(6) in finding against [Mr Harris] when [Racing Victoria] had not produced any evidence that the prohibited substance was detected in the sample taken from the horse. A substantive element for the commission of an offence.

2b In that reaching its decision the Victorian Racing Tribunal made an error of law in that AR259(6) requires two independent certificates to verify the detection of a prohibited substance from the sample taken from the horse, not simply to detect a prohibited substance in the sample bottle before a prima facie case arises.

2c In that reaching its decision the Victorian Racing Tribunal made an error of law in that even if a prima facie cast did arise which is not admitted the Tribunal failed to take into account the expert evidence of [RASL] that it could not detect whether the prohibited substance came from the sample taken from the horse or contamination, as a consequence the appropriate burden of proof could not be discharged and the decision is unsafe.[16]

1. As Mr Harris was self-represented at the hearing of his application for judicial review, it is also useful to reproduce here the summary of his grounds of review set out in his written submissions:

In summary [Mr Harris] is entitled to the benefit of this Judicial Review on the grounds that[:]

1. The hearing conducted by the tribunal denied due process and a fair hearing.
   1. [Racing Victoria] failed to prove requisite elements of the offence at the hearing to the appropriate standard of burden of proof.
   2. [Mr Harris] was denied the right to cross-examine and challenge evidence relied upon by [Racing Victoria] and [Victorian Racing Tribunal][.]
2. The tribunal made errors in law[:]
   1. The requirements of AR240 and AR259 have not been satisfied as there was no evidence that Dexamethasone was in Dawn County system when she was presented at the races.
   2. The certificates issued by [RASL] and ARFL did not comply with the requirements of the rules of racing, as a consequence no prima facie case arose.
3. As the tribunal made a finding that it accepted the evidence of Dr. Adam Cawley, it is bound by his evidence and the admissions of [Racing Victoria.]
   1. It did not detect Metabolites.
   2. Did not test for Metabolites[.]
   3. That [RASL] did not have a test that could confirm that the Dexamethasone detected was from the urine sample taken from the horse.
   4. That [RASL] could not detect the difference between contamination or a detection from the urine. As a consequence, the requirement of AR240 that a horse had a prohibited substance in its system when presented at the races was not proved. In the absence of proof of Metabolites, [RASL]'s test is not fit for purpose.[17]

1. There is significant overlap in Mr Harris' grounds of review. As those grounds rely substantially on concerns about the fairness of the liability hearing, it is important to set out in some greater detail some key features of the liability hearing (together with the impugned liability decision).

1. The liability hearing was preceded by four directions hearings, at which matters of evidence and witnesses were raised.[18] Mr Harris was present at each hearing, accompanied by Mr R Harris, his father.
2. At the final directions hearing on 15 May 2024, there was a direct exchange between the Tribunal, Mr R Harris and Mr Harris concerning the witnesses proposed to be called by Racing Victoria at the hearing. On that occasion, the Tribunal Chair said:

CHAIRPERSON: Anyway, there is a saying in the law that there is no property in witnesses. If you, Mr Harris, wish to call someone as a witness, you can, but it's up to the Stewards as to how they conduct their case and what witnesses they call. If you think you want to call some witness, on the face of it, from their side of the fence - it's a simple saying - you can, but you're then stuck with what that witness says in evidence-in-chief and cross-examination. But if the Stewards say they're not calling Mr Fisher, that's their decision as to how they want to conduct their case.

MR R. HARRIS: I appreciate that, Mr Bowman.

CHAIRPERSON: Yes. So I'm not too sure where that takes us. Is there anything further, Mr El-Asmar, you wanted to say about the issue of Mr Fisher?

MR EL-ASMAR: Just to make it clear, your Honour, I have no intention of calling Mr Fisher. I just don't see the relevance at all to a single presentation charge relating to dexamethasone and in circumstances where Mr David Batty, director of RASL, is being called, and the questions that were posed by Mr Harris there briefly, I am more than confident Mr David Batty can address.

CHAIRPERSON: As I say, that's a decision which is up to the Stewards.

MR EL-ASMAR: Yes.

CHAIRPERSON: As you would appreciate, if that turned out to leave a deficit in their case, they would be stuck with that and there is no property in witnesses. So I don't think we can take any of that any further. Basically, how the Stewards, Mr Harris, run their case is essentially up to them and if they fall short by having defects in their evidence, so be it.

MR R. HARRIS: I appreciate that, your Honour.

CHAIRPERSON: And as I keep saying, there's no property in witnesses; you can call witnesses. Anyway - - -

MR K. HARRIS: Your Honour, it's Kane Harris here. How are you?

CHAIRPERSON: Yes, good, thanks.

MR K. HARRIS: Look, I've got every intention of calling Brent Fisher, as a previous owner, as someone who has also been heavily involved in the integrity of thoroughbred racing which he is now and also been heavily involved in the integrity throughout the thoroughbred - sorry, the trots community prior to being at Racing Victoria. To the emails that I've had with Brent Fisher, there is mitigating factors but I believe that I have every reason to call him. David Batty wasn't part of the conversation that took place with Brent Fisher and myself and hence the reason why personally I'll be calling Brent Fisher to give evidence.

CHAIRPERSON: That's a decision for you, but the Stewards are making it quite clear that they're not going to call him, as long as that's understood.

MR K. HARRIS: No, that's fine, and I understand everything that Mr El-Asmar has had to say and I understand everything that you've had to say. But I'm more than happy to call Brent Fisher, to be there, myself.[19]

1. At the subsequent liability hearing on 19 June 2024, Mr Harris was again present, together with his father. A review of the transcript of the hearing discloses that when the case was opened on behalf of Racing Victoria, Mr El-Asmar (on behalf of Racing Victoria) advised the Tribunal that he proposed to call only one witness, Dr Adam Cawley, who would give expert evidence on RASL's processes and procedures in respect of matters set out in the brief of evidence and, in addition, to respond to the evidence of Mr Harris' expert witness, Professor Chapman.[20] Mr El-Asmar thereafter tendered the pre-race blood sample package as Exhibit 1, and went on to identify for the Tribunal certain key documents within the brief of evidence, namely, the sample identity documents for the blood and urine samples, and the related chain of custody receipts and First and Second Certificates of Analysis for the purposes of AR 259(6).[21] Then followed this exchange:

MR EL-ASMAR : Your Honour, instead of tendering each of those certificates and receipts separately, it might be easier if I just tender the entire brief of evidence as exhibit 2.

CHAIRPERSON: Yes. Any objection to that?

MR R. HARRIS: No.

CHAIRPERSON: Exhibit 2.

1. Mr El-Asmar then told the Tribunal that he relied on the statement of Dr Jamie Wearn in its entirety, but particularly for his explanation of the drug dexamethasone and why it is a prohibited substance under the Rules.[22] Dr Wearn is a Regulatory Veterinarian employed by Racing Victoria. His statement formed part of Exhibit 2.
2. Next, Mr El-Asmar indicated that Racing Victoria proposed to call Dr Adam Cawley, stating 'I myself don't have many questions for Dr Cawley, Dr Cawley has been called as a witness at the request of Mr Harris'.[23]
3. The viva voce evidence given by Dr Cawley supplemented his written statement. The statement gave particulars of RASL's testing of the sample resulting in the First Certificate of Analysis for the purposes of AR 259, together with a summary of the Second Certificate of Analysis prepared by ARFL, and Dr Cawley's opinion that the sample contained dexamethasone which was a prohibited substance under the Rules.
4. In chief, Dr Cawley confirmed that RASL does not test for metabolites of dexamethasone. He gave three reasons. First, he said that the Rules did not require it. Second, he said the reference material on dexamethasone metabolites was aged and had not been substantiated with modern mass spectrometry techniques. Third, he said that the detection of metabolites of a corticosteroid such as dexamethasone could be quite unpredictable, because it could be absorbed into fat and muscle tissue. Dr Cawley gave evidence that the various routes of therapeutic administration of dexamethasone in a subject were such that there was no definitive measure of when its metabolites would or would not be detected. In particular, he drew a distinction between testing for ketamine and dexamethasone. Ketamine is a substance with more predictable elimination in plasma and urine and is therefore amenable to testing by reference to its metabolites, whereas dexamethasone is not.[24] Dr Cawley told the Tribunal that, to his knowledge, no horse racing laboratory in Australia or abroad tested for metabolites of dexamethasone.[25] He also said that, in his opinion, the absence of dexamethasone in the control sample mitigated the potential for contamination at the point of collection of the sample.[26]
5. It is notable that the Tribunal permitted Dr Cawley to be cross-examined by both Mr Harris and Mr R Harris. A number of questions were put to Dr Cawley about the source of dexamethasone in the Sample and his apparent inability to specify that the dexamethasone in the Sample came from the horse's system, rather than some form of sample contamination. Dr Cawley disagreed with the proposition that sample contamination could not be excluded in the absence of testing for metabolites of dexamethasone.[27] At its highest, Dr Cawley conceded in cross-examination that it was 'possible' that the dexamethasone identified in the sample came from contamination.[28] Dr Cawley agreed that he could not say how the dexamethasone came to be in the sample but disagreed that that was a requirement of the Rules and further disagreed that a testing process that was 'fit for purpose' required testing for metabolites.[29] He also expressly disagreed with Professor Chapman's opinion that the testing process should account for specific gravity; his evidence was that there was no valid measurement of specific gravity in equine urine, and that in any event the Rules did not require any adjustment of the measurement in this way.[30] His evidence was that the testing conducted allowed the laboratory to detect, with confidence, levels of dexamethasone in urine to at least 0.2 nanograms per millilitre of urine as required by the Rules.
6. During cross-examination, Mr Harris also tendered a technical note from 2006 put by him to Dr Cawley.[31] In re-examination, Racing Victoria tendered a document describing urine collection procedures prepared by ARFL, the Second Laboratory for the purposes of AR 259.[32]
7. After the evidence of Dr Cawley, Mr El-Asmar told the Tribunal that for the balance of the Stewards' case, he intended to rely on the brief of evidence (Exhibit 2) identifying aspects of the transcripts of interviews with Mr Harris, Ms Thomas (Mr Harris' personal and professional partner) and two vets, Dr Kelly and Dr Haugen. He said that he would rely on photographs, treatment records and receipts before then concluding the Stewards' case. Neither Mr Harris nor Mr R Harris made any comment nor raised any concern at this time.[33]
8. Next, Mr Harris opened his case, with Mr R Harris calling Ms Thomas to give evidence. After that evidence concluded, the Tribunal enquired about Mr Harris' further evidence:

CHAIRPERSON: I notice the time is 20 to 1. What's the situation in relation to further evidence? I ask this because - - -

MR R. HARRIS: Beg your pardon?

CHAIRPERSON: You've got an expert coming?

MR R. HARRIS: He's here.

CHAIRPERSON: He's here. Do you want to start him? It will be interrupted by the lunch adjournment at 1 o'clock. Do you want to start him before then, right now, or start him - - -

MR R. HARRIS: We'll start - - -

CHAIRPERSON: We'll start at quarter to 2 approximately. You're not locked into the situation but apart from him, are there further witnesses?

MR R. HARRIS: Well, I was of the belief that Victoria Racing were going to make Brent Fisher available.

MR EL-ASMAR: No, certainly not, your Honour.

CHAIRPERSON: All right. At this stage I think we will take the luncheon break and we'll resume at 1.45[pm].[34]

1. Emeritus Professor Colin Chapman gave evidence following the luncheon adjournment. Professor Chapman holds qualifications in pharmacy and veterinary science, together with a PhD in immunology. Professor Chapman had prepared four written reports, some of which also concerned testing issues involving a second horse named Mr Grumpy. The reports were not separately tendered by Mr Harris, but it is clear that they were considered by the Tribunal, and Professor Chapman was cross-examined extensively on the conclusions contained in those reports.
2. Professor Chapman's evidence was principally directed to his conclusion that a 'fit for purpose' test for dexamethasone would also test for metabolites of dexamethasone, and that validating a finding of dexamethasone in a urine sample without metabolite testing was 'possible but not sensible'.[35] His primary contention was that without proof of metabolites there was no proof that the dexamethasone came from, or had gone through, the horse's system rather than emanating from some other contaminating source.[36] Professor Chapman also contended that in the absence of urine specific gravity testing, the testing process did not normalise for other factors (such as the dehydration of the horse), which could impact on the reliability of the identified concentration of a prohibited substance.[37]
3. Professor Chapman conceded in cross-examination that the Rules did not require testing for metabolites of dexamethasone or urine specific gravity.[38] He maintained the view that it was possible to detect metabolites of dexamethasone and that a test that was fit for purpose would test for metabolites so as to exclude the possibility of sample contamination.[39] He also dismissed Dr Cawley's contention that there was no valid measurement for testing of specific gravity in equine urine. Professor Chapman was re-examined by Mr Harris.
4. After Professor Chapman withdrew, there was the following exchange:

CHAIRPERSON: Yes. What's happening now?

MR R. HARRIS: We have no further evidence to call.

CHAIRPERSON: No further evidence. If that's the case, in relation to addresses, are you ready to go?

MR EL-ASMAR: Yes, your Honour ...[40]

1. After Racing Victoria concluded its address, Mr Harris and also Mr R Harris addressed the Tribunal. Nothing was said during the course of those submissions about Mr Harris' wish to call or cross-examine any other witness. In fact, after summarising Racing Victoria's test results, Mr R Harris submitted that there was 'no evidence before the Tribunal that can justify a conviction.'[41]

C.3 The Tribunal's written reasons for the liability decision

1. The Tribunal's written reasons on the liability decision summarised at some length the evidence that had been called by Racing Victoria and Mr Harris, and the arguments advanced by both parties on the contested second element of the presentation charge under AR 240(2).[42]
2. Having done so, the Tribunal set out its view of the elements of the offence. It relevantly said:

It is to be remembered at the outset that there is a clear distinction between the administration of and presentation of prohibited substances

...

AR 240(2) does not involve proof of how, why or when a prohibited substance found its way into the horse ...

Questions as to how the prohibited substance found its way into the horse's system and cause such a positive test result are not essential parts of the Charge.

To put this proposition in simple steps, the relevant requirements of AR 240(2) could be summarises as follows:

1. The horse must be brought to the course.

2. It must be so brought for the purpose of participating in a race.

3. If tested by the Stewards, ultimately the test must prove positive to a prohibited substance to the required degree.

To this could be added:

1. The test must have been carried out in a proper fashion and without evidence of contamination or the like.
2. Any further testing must be carried out by an appropriate body and without evidence of any interference, illicit or accidental, with the sample.[43]

1. In applying that test to the facts before it, the Tribunal relevantly found:
   1. Dawn County was presented to race at the track on the day in question.
   2. It participated in a race.
   3. A urine sample was taken for or by the Stewards and on later testing proved positive to a prohibited substance (Dex)[sic] to the required degree.
   4. There is no evidence that the taking of any sample by the Stewards was carried out in an improper fashion or that there was contamination or the like of any sample product (Ms Thomas signed the appropriate documentation as to her satisfaction with the carrying out of the procedure).
   5. The subsequent testing or analysis was carried out by an appropriate body. There is no evidence of any interference with the sample that may have impacted upon the result of such testing.

...

In any event we find the charge proven.[44]

1. On the question of the competing expert evidence, the Tribunal relevantly found:

Both Dr Adam Cawley and Professor Colin Chapman were impressive witnesses. However, we prefer and accept the evidence of Dr Cawley. That evidence seems to us to have been directed more to the actual requirements and operation of the process involved in obtaining an[d] verifying a sample than the evidence of Professor Chapman, which was directed more to any defects or inadequacies in the system generally.[45]

1. Thereafter, the Tribunal highlighted those key aspects of Dr Cawley's evidence that supported his opinion that the testing of the Sample validated the presence of a prohibited substance above the relevant screening limit. The liability reasons also noted Dr Cawley's disagreement with the contention that the test was not fit for purpose, and also recorded his opinion that the Rules did not require testing for metabolites.[46] The Tribunal then concluded:

We have just selected a few extracts from the evidence of Dr Cawley, but they seem to us to be directly on point, [sic] It is also to be remembered that, to put it simply, the Rules are what they are. If they have short-comings, and Professor Chapman seemed to be suggesting that they do, that it [sic] unfortunate. We do not necessarily agree with his proposition, but, even if some of his criticisms are accurate, we must deal with the Rules as they are.

As stated, we have found the Charge proven on the basis of the simple wording and operation of the principal current Rule. Even if we ventured into some aspects of the debate between expert witnesses, we would come to the same conclusion.[47]

C.4 Ground 1 - There was no failure by the Tribunal to accord natural justice

1. Having regard to Mr Harris' written submissions and oral submissions made at the hearing in this Court, the complaints made by him on this ground fall into two main categories:

(a) first, breaches of the hearing rule in respect of matters of evidence; and

(b) second, an allegation that the Tribunal was biased.

1. The alleged breaches of the hearing rule appear to concern two related issues connected to evidence adduced by Racing Victoria.
2. First, Mr Harris complains that Racing Victoria was permitted to rely on the written brief of evidence tendered as Exhibit 2 without calling oral evidence to support all of the documentary evidence.
3. Second, Mr Harris says that he was denied the opportunity to cross-examine three Racing Victoria witnesses. They were:

(a) Dr Jamie Wearn, whose statement on the testing process and expert evidence in respect of dexamethasone as a prohibited substance under the Rules formed part of the written brief of evidence tendered at the hearing in the Tribunal;

(b) Mr Brent Fisher, a Racing Victoria Steward, in respect of procedures relating to the testing of a pre-race blood sample that was later destroyed in accordance with Racing Victoria policy concerning TCO2 only samples;

(c) Dr David Batty of RASL 'and/or a representative of ARFL' about testing procedures.

The content of the procedural fairness obligation in the Tribunal

1. It is well understood that what is required to afford procedural fairness is not fixed.[48] It is variable depending upon the circumstances of the particular case, including the statutory framework of the relevant Tribunal and the nature, complexity and practical consequences of the dispute for determination.
2. In the present case, the content of the requirements of procedural fairness is informed by the express provisions of the Racing Act, which both establishes the Tribunal,[49] and sets out the procedures by which it is governed.[50]
3. The Tribunal is required to act 'fairly and according to the substantial merits' of the subject matter,[51] and is expressly bound by the rules of natural justice.[52] It is not bound by the rules of evidence or practices and procedures applicable to courts of record,[53] may inform itself on any matter as it sees fit,[54] and must conduct each hearing expeditiously, with as little formality and technicality as is reasonably possible.[55] To that end, the Tribunal is given a wide discretion in regulating its own proceedings,[56] and is expressly empowered to make directions and do whatever is necessary for the 'expeditious and fair hearing and determination' of a proceeding.[57]
4. Further, on the question of evidence at hearing, s 50Y relevantly provides that:

(1) The [Tribunal] must allow a party a reasonable opportunity -

(a) to call or give evidence; and

(b) to examine, cross-examine or re-examine witnesses; and

(c) to make submissions to the [Tribunal].

(2) Despite subsection (1), the [Tribunal] may refuse to allow a party to call evidence on a matter if the [Tribunal] considers that there is already sufficient evidence in relation to the matter before the [Tribunal].

(3) Evidence in a proceeding before the [Tribunal] may be given -

(a) orally or in writing; or

(b) by telephone, closed circuit television or video link; or

(c) by a steward or an investigator from the notes of evidence made by the steward or the investigator.

(4) The [Tribunal] may require a person, whether in accordance with a notice under section 50S or otherwise, to give evidence or answer questions on oath or affirmation.

1. Finally, so far as the content of the obligation of procedural fairness and the hearing rule is concerned, regard may also be had to Part 12 of the Rules, which makes express provision for proofs in certain cases. As set out above, AR 259 provides for a sampling and analysis process, whereby the provision of the First and Second Certificates of Analysis constitute prima facie evidence that the relevant sample contains a prohibited substance.

1. Mr Harris' complaints in respect of alleged breaches of the hearing rule are related. In short, he expected Racing Victoria to be put to its proof. In particular, it appears that he did not anticipate that Racing Victoria would, or could, rely on the RASL and ARFL Certificates or any other documents or statements contained in the brief of evidence without also calling viva voce evidence in respect of those documents or statements. He also anticipated that when witnesses were called he would be able pursue various lines of cross-examination. This complaint overlaps with his complaint that Racing Victoria called no evidence at all in relation to the ARFL Certificate. He raised these same issues in writing with the Tribunal following the conclusion of the liability hearing, but before the Tribunal delivered its liability decision.[58]
2. The complaints have no substance.
3. It seems likely that Mr Harris was mistaken as to what Racing Victoria's obligations were at the liability hearing, as well as the evidence it tendered. Racing Victoria was entitled to and did rely on the RASL and ARFL Certificates as prima facie proofs under AR 259(6). Similarly, Racing Victoria was entitled to and did rely on the written evidence of Dr Wearn. Those documents and statements were expressly opened by Racing Victoria to the Tribunal, and tendered as part of Exhibit 2, to which no objection was taken by Mr Harris. That course was expressly permitted by s 50Y(3) of the Racing Act.
4. Further, Mr Harris had every opportunity to request witnesses relied on by Racing Victoria for cross-examination, or to call any witness that he wished to at the hearing of the matter. This is supported by the correspondence between the parties prior to the liability hearing, including the discourse at and around the directions hearings.[59] It is also plain that the Tribunal repeatedly explained to Mr Harris at the directions hearing his ability to call his own evidence.[60] The Tribunal noted that it was open to Mr Harris to call whichever witnesses he wished notwithstanding that those witnesses were 'from [Racing Victoria's] side of the fence', and that in those circumstances, Mr Harris will be required to accept their evidence, whatever it may be.[61] At the liability hearing, the Tribunal expressly invited Mr R Harris, on behalf of Mr Harris, to call his evidence and enquired more than once about whether he sought to call evidence (other than that of Professor Chapman).[62]
5. In respect of Mr Harris' complaint about his inability to cross-examine Dr Wearn, there is no evidence that he ever sought to require his attendance for cross-examination (whether prior to, or at, the hearing).
6. In respect of the absence of Mr Fisher, a number of matters arise. First, Mr Fisher did not make any written statement relied on by Racing Victoria. Second, Racing Victoria made plain to the Tribunal and Mr Harris prior to the hearing that it did not rely on any evidence of Mr Fisher, and did not propose to call him. This issue was expressly ventilated before the Tribunal at the 15 May 2024 directions hearing, where Mr Harris ultimately told the Tribunal that he would call Mr Fisher himself.[63] He did not. Third, when Mr Fisher was not called as part of Racing Victoria's case (consistent with its position at the directions hearings), no further step was taken by or on behalf of Mr Harris to call his evidence. Fourth, Racing Victoria did tender as part of Exhibit 2 the statement of Gary Harrison, another Steward. Mr Harrison was not required by Mr Harris for cross-examination.
7. In any event, it is difficult to see how the evidence of Mr Fisher in relation to the routine destruction of pre-race blood sample which had not been tested for dexamethasone or any other prohibited substance had any probative value in relation to the post-race Sample and its testing. This is particularly so in circumstances where the relevant dexamethasone screening limit at the time the Sample was tested concerned its concentration in urine, and not blood or plasma.
8. In respect of Dr Batty (RASL) or a representative of ARFL, Racing Victoria called Dr Cawley to give viva voce evidence about the First and Second Certificates and made him available for cross-examination, apparently at Mr Harris' request. Further, Mr Harris raised no objection at the hearing to Dr Batty's absence. Finally, Mr Harris had the opportunity to and did test Dr Cawley's evidence as to the First and Second Certificates and dexamethasone testing processes extensively in cross-examination. He further called his own independent expert witness on those topics.
9. It follows that I am not satisfied that Mr Harris has established any breach of the hearing rule in respect of the tender of Exhibit 2, or the absence of Dr Wearn, Mr Fisher Dr Batty and/or a representative of ARFL at the hearing.

1. A core element of procedural fairness is the independence and impartiality of the Tribunal. A reasonable apprehension of bias will arise where a fair minded observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question for determination and might determine the question other than on its legal and factual merit because of identified factors.[64]

1. In order to establish the alleged apprehended bias of the Tribunal, Mr Harris was required to:

(a) identify the factor which he said might lead to the Tribunal resolving his matter other than on its legal and factual merits;

(b) articulate the logical connection between that factor and the apprehended deviation from deciding that question on the merits; and

(c) demonstrate the reasonableness of that apprehension from the perspective of a fair minded lay observer.[65]

1. Mr Harris has simply not met that test.
2. His contention (based on written submissions) was that the shortcomings he identified in the evidence presented before the Tribunal raised 'serious concerns about the independence of the Tribunal and the separation of [Racing Victoria] and [the Tribunal]'.[66] For the reasons set out in this judgment, I do not accept that there were relevant 'shortcomings' in the evidence adduced below. However, even if there had been deficiencies in the evidence, the fact that the Tribunal found the Charge proven on that evidence would not, without something more, logically lead to the conclusion that the Tribunal lacked independence or was otherwise biased against him. This is particularly so in respect of the allegation or perception of a lack of 'separation' between the Tribunal and Racing Victoria. Certainly, the fair minded observer possessed of the transcripts of the directions hearings and hearing, and documentary evidence tendered at the hearing, could not reasonably apprehend that the Tribunal had failed to bring an independent and impartial mind to the question of whether Racing Victoria had proven the Charge.
3. There was a faint suggestion in Mr Harris' written submissions that the allegation of bias extended to the Tribunal's conduct in respect of the penalty hearing.[67] Although I reject that contention, I address the circumstances of that hearing that support that conclusion more fully in Part D, below.
4. It follows that there is no substance whatsoever to Mr Harris' claim of apprehended bias against the Tribunal. I refuse leave to appeal in respect of Ground 1.

C.5 Grounds 2a, 2b and 2c - There was no error of law in respect of evidence or the burden of proof

1. Vitiating legal error may arise where, as Mr Harris alleges here, the Tribunal misapplies the applicable law,[68] makes a finding not supported by any evidence,[69] or fails to take into account a relevant consideration (here said to be an inability to identify the source of the dexamethasone detected in the Sample).[70] Importantly, to obtain relief, Mr Harris must also demonstrate that these asserted legal errors (whether jurisdictional error or non-jurisdictional error on the face of the record) were material, in the sense that there was a realistic possibility that the liability decision could have been different if one or more of the errors had not been made.
2. As noted at the outset, Mr Harris' allegations of legal error overlap. His core complaint concerns the absence of evidence of any dexamethasone metabolites in the Sample, which Mr Harris strongly contends raises an inference of contamination. To recap, there was no disagreement that the Sample contained dexamethasone and that the Sample was not tested for dexamethasone metabolites.
3. To translate those matters into the alleged errors of law, Mr Harris' case is essentially as follows:

(a) absent evidence of dexamethasone metabolites, there was no evidence upon which the Tribunal could be satisfied that the dexamethasone in the Sample came from Dawn County, rather than some other source, such that the Charge should have been dismissed (paraphrasing Ground 2a);

(b) absent evidence of dexamethasone metabolites, the First and Second Certificates did not prove to the requisite standard that the dexamethasone in the Sample came from Dawn County, rather than some other source, and the Charge should have been dismissed (Ground 2b);

(c) the Tribunal did not take into account the whole of the evidence of Dr Cawley, who had agreed that the testing process resulting in the First and Second Certificates did not identify whether the identified dexamethasone came from Dawn County or some contaminant (Ground 2c) and, absent that, the Charge should have been dismissed.

1. I will deal with grounds 2a and 2b together. They are proffered as errors which arise from a misconstruction or misapplication of the requirements of AR 240(2) and AR 259(6).
2. On the issue of the proper construction of the Rules, the principal debate here concerns the second element of the presentation offence, and the meaning of the words in AR 240(2) 'a prohibited substance ... on Prohibited List B is detected in a sample taken from the horse ...'.
3. Mr Harris' case is that those words require Racing Victoria to positively establish that the horse has metabolised the dexamethasone (so as to exclude the possibility of external contamination) and that, as a consequence, certificates tendered under AR 259(6) which do not establish the presence of dexamethasone metabolites do not provide prima facie proof of the second element of the offence - that is, they do not demonstrate that the dexamethasone was 'detected in a sample taken from the horse'.[71]
4. I do not accept that on a proper construction of the Rules a breach of AR 240(2) based on the presence of dexamethasone 'in a sample taken from the horse' requires proof of dexamethasone metabolites.
5. First, there is nothing in the text of AR 240(2) which compels this conclusion. The use of the words 'in a sample taken from the horse' requires simply that it is established that the relevant prohibited substance was detected in a sample collected from the horse in question. Evidence of the mere presence of dexamethasone in the Sample (above the therapeutic substance screening limit specified pursuant to AR 257(3)) was sufficient to make out the second element of the offence.
6. Second, there is nothing elsewhere in the text of the Rules and, in particular, Schedule 1 of the Rules, which compels this conclusion. It is the specified substance that is prohibited and, further, as paragraph 3 of Prohibited List B makes plain, a metabolite of a prohibited substance such as dexamethasone is also a prohibited substance. As a therapeutic substance, it was expressly open to Racing Australia or Racing Victoria under AR 257(3) to specify a screening limit applicable to dexamethasone that was referable to a specified metabolite. No screening limit referable to metabolites was specified. To the contrary, the screening limit had the effect of proscribing the presence of the substance at more than 0.2ng/mL in urine. The First and Second Certificates adduced pursuant to AR 259(6) were correctly directed to that proof; that is, the presence of dexamethasone at more than 0.2ng/mL in urine in both the A portion and the reserve portion of the Sample, and the absence of dexamethasone in the A portion and the reserve portion of the control sample.
7. There being no textual support in the Rules for the contention that Racing Victoria must establish the presence of dexamethasone metabolites to establish a breach of AR 240(2), I next turn to consider whether the Tribunal's finding that the offence was made out on the basis of the detection of dexamethasone in the Sample otherwise arose as a consequence of legal error. In this respect, Mr Harris' complaints perhaps more neatly fit into allegations of 'no evidence' (Ground 2a) or, potentially, 'legal unreasonableness' (Ground 2b).
8. Mr Harris' first made what was effectively a 'no evidence' attack on the Tribunal's finding. To establish such an error of law required Mr Harris to clear a very high bar, in circumstances where 'no evidence' is traditionally understood to mean 'not a skerrick of evidence'.[72] Mr Harris did not clear that bar, for two reasons.
9. First, Mr Harris conceded before the Tribunal and before me that there was evidence of the presence of dexamethasone in the Sample. His core complaint, as set out above, was that the presence of a contaminant could not be excluded where the Sample had not been tested for metabolites of dexamethasone.
10. Second, even absent that concession, the Tribunal had before it ample probative evidence from which it could be satisfied as to the presence of a prohibited substance in the Sample; certainly more than 'a skerrick'. That evidence included:

(a) the statement of Dr Wearn as to the classification of dexamethasone as a prohibited substance, and also his identification of the presence of a medication containing dexamethasone (Dexapent) in the stables;[73]

(b) the First and Second Certificates, which alone constituted prima facie evidence of that element of the offence;[74]

(c) the statement of Mr Harrison about the post-race Sample collection process and test results;[75]

(d) the transcript of interview and oral evidence of Mr Harris' partner, Ms Thomas who, inter alia, witnessed the Sample being taken, attested to it by signing the Sample Identity Document,[76] and told the Stewards that 'there was nothing wrong with the procedure that was in front of me that happened that day';[77]

(e) the statement and oral evidence of Dr Cawley about the testing process and test results, and his conclusions that the testing process was fit for purpose, and that there was no evidence of contamination of the Sample;[78] and

(f) the oral evidence of Professor Chapman, where Professor Chapman agreed that dexamethasone was a prohibited substance and also agreed that the First and Second Certificates showed that RASL and ARFL had detected dexamethasone in the Sample.[79]

1. There being no substance to a 'no evidence' attack, I have also considered whether the Tribunal's findings might otherwise be said to have been legally unreasonable and, in particular, whether it might be said that there was no rational connection between the evidence adduced at hearing and the Tribunal's findings, or that the Tribunal's conclusions lacked intelligible or evident foundation. It is insufficient for Mr Harris to establish that a different conclusion was open to the Tribunal on the available evidence. If logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, this Court will not interfere on the basis that the Tribunal's decision was illogical or irrational or unreasonable simply because it preferred one conclusion to another possible conclusion.[80]
2. The arguments advanced by Mr Harris appeared to be founded on two contentions:

(a) that the First and Second Certificates did not satisfy the requirements of AR 240(2) and AR 259(6); and

(b) that the Tribunal erred in finding that that the presence of dexamethasone in the Sample constituted a sample 'taken from the horse' and was not otherwise caused by contamination. [81]

1. I have already addressed the issue of the proper construction of AR 240(2) and AR 259(6), and the evidence before the Tribunal on those topics.
2. I am satisfied that there was cogent evidence before the Tribunal that the sample testing procedure prescribed by AR 257 was complied with, and that the First and Second Certificates were produced in a manner compliant with AR 259(6). There was no contrary evidence of non-compliance nor irregularity.
3. Further, I find that there was cogent, positive evidence that the Sample containing dexamethasone has been taken from Dawn County and was not contaminated. On this issue, Racing Victoria points to various aspects of the documentary evidence tendered as part of Exhibit 2.[82] However, it is sufficient to dispose of this contention to point to the Tribunal's analysis of the evidence of Ms Thomas about the testing procedure, and Dr Cawley's reliance on the absence of dexamethasone in the control sample as a factor which 'mitigates the potential of contamination at the source of collection'.[83]
4. It also follows that the Tribunal's positive finding that 'there is no evidence of contamination' was a rational conclusion based on a foundation of intelligible evidence. It was reasonably open to the Tribunal to make that finding. I can discern no error in the Tribunal's findings.
5. Grounds 2a and 2b are not made out.

1. In short, it is contended that in reaching its conclusions, the Tribunal failed to take into account the whole of the evidence of Dr Cawley and, in particular, concessions made by Dr Cawley which were favourable to the case which Mr Harris made in his defence.
2. The Tribunal's summary of Dr Cawley's evidence expressly referenced the concessions made by Dr Cawley concerning the lack of testing for dexamethasone metabolites on which Mr Harris so heavily relies.[84] The Tribunal's acceptance of Dr Cawley's evidence in preference to the evidence of Professor Chapman was apparently made in the light of those concessions. Cogent reasons were given by the Tribunal in support of that preference.[85]
3. It is not for this Court on an application for judicial review to second guess the relative weight accorded by the Tribunal to various aspects of the expert evidence that was relevant to its consideration of whether or not the Charge had been proven; the analysis of weight was a matter that squarely fell within the Tribunal's decisional freedom.
4. It follows that Ground 2c is not made out.

D There was no error in the penalty decision

1. Mr Harris advances a single ground of review in respect of the penalty decision, as follows:

In the determination of the penalty the Tribunal failed to take into account proper consideration as to culpability.[86]

1. This ground was not addressed substantively in Mr Harris' written submissions, which indicated that Ground 3 was included in order to be 'thorough', adding the observation that to remit the matter would not represent a just outcome for Mr Harris.[87] Nevertheless, the penalty ground was addressed by Mr Harris orally at hearing.
2. It is also relevant to note that submissions filed on behalf of Mr Harris prior to the termination of the retainer of his solicitor and counsel advanced further arguments in respect of the penalty decision.[88] Racing Victoria contended that some of the arguments advanced went beyond the scope of Ground 3, and were impermissible in the absence of an amendment to the Originating Motion.[89] No such amendment was sought; indeed, the oral submissions made by Mr Harris before me confirmed that the ground of appeal was that the penalty was excessive, as the Tribunal failed to take into account proper consideration of his culpability.[90] There is some doubt as to whether other matters set out in counsel's submissions were pressed at all as they concerned Ground 3, as those submissions were elsewhere disavowed by Mr Harris both in writing and oral submissions as not reflecting his instructions. I have nevertheless had regard to counsel's submissions so far as they relate to Ground 3, to the extent that they might assist Mr Harris in articulating the case that he wished to advance on penalty.

1. The penalty hearing was conducted by video conference on 14 November 2024, and the penalty decision was given on the same date.
2. At the penalty hearing, in support of its contention that the appropriate penalty was one of disqualification for a period not less than six months, Racing Victoria relied, inter alia, on an uncontested summary of the four prior findings against Mr Harris in relation to prohibited substances,[91] namely:

(a) in April 2016, a $2,500 fine for a presentation offence relating to dexamethasone;

(b) in December 2021, a $5,000 fine for an administration offence relating to salbutamol; and

(c) in October 2022, two further presentation offences resulting in:

(i) for Charge 1, flunixin, a fine of $6,000; and

(ii) for Charge 2, dexamethasone, a fine of $8,000 and a three month suspension, where the suspension was suspended for an 11 month period.[92]

1. Racing Victoria advanced those prior matters to support a submission that the imposition of fines and, indeed, a wholly suspended licence suspension had not prevented a further breach by Mr Harris of AR 240(2). Racing Victoria relatedly submitted that a further fine or even suspension of Mr Harris' licence did not sufficiently serve the objects of specific and general deterrence in the circumstances. Further, Racing Victoria highlighted that the Tribunal's finding in respect of the Charge was the fourth adverse finding in respect of dexamethasone, and noted the focus in the racing industry on animal welfare and jockey safety in circumstances where dexamethasone was a therapeutic substance capable of masking injury or pain in a horse. Finally, Racing Victoria referred the Tribunal in particular to a recent penalty imposed in a Western Australian harness racing matter. In the matter of Callan Suvaljko (Suvaljko), a trainer with a prior bad record was disqualified for a period of six months following two presentation offences concerning dexamethasone.[93] It was contended that the penalty imposed there offered some guidance to the Tribunal and also reflected industry and community expectations. Racing Victoria advocated for a disqualification rather than a suspension of Mr Harris' licence, principally to ensure that if he reapplied for a licence at the conclusion of the disqualification period, he would have to satisfy the Stewards that he was a fit and proper person to be granted a licence.[94]
2. Mr Harris and Mr R Harris made submissions which largely reiterated submissions made at the liability hearing as to the perceived inadequacy of the testing conducted at RASL and ARFL in respect of dexamethasone. It was contended that the Tribunal should consider the question of culpability and penalty in light of those considerations. Submissions were also made in respect of Mr Harris' adverse health circumstances and increasingly precarious financial situation, with adverse publicity stemming from the breaches having led to a significant reduction in his pre-training business.[95] Mr Harris also sought to distinguish the circumstances of Suvaljko on a number of bases, and referred the Tribunal to a number of other matters involving trainers with multiple historical breaches which had not resulted in suspension or disqualification, also submitting that no other trainer had been suspended for breaches involving a therapeutic drug.[96] In these circumstances, it was submitted that the Tribunal should determine not to record a conviction, or that a nominal fine was the appropriate penalty.
3. The Tribunal delivered its decision on the day of the penalty hearing, and its oral reasons were reduced to writing. The Tribunal did not accept Racing Victoria's submission that a period of disqualification was required, but was satisfied in the circumstances that there must be interference with Mr Harris' licence. The matters expressly identified by the Tribunal as leading to its conclusion that a six month licence suspension was the appropriate disposition were recorded as being:

(a) that this was Mr Harris' fifth breach of AR 240(2), and the third involving dexamethasone, which were all comparatively recent breaches of the Rules. In this regard, the Tribunal said that also it had had regard to decisions in other like cases, the repeated offending placed Mr Harris in a different category and those decisions were of only limited assistance;

(b) the absence of the benefit of a guilty plea;

(c) that the bulk of Mr Harris' work with his partner was in pre-training;

(d) that Mr Harris had substantial business and personal financial liabilities;

(e) the major health problems suffered by Mr Harris;

(f) that Mr Harris had put in place some measures in relation to dexamethasone, and was pursuing various matters in relation to it; and

(g) the importance of animal welfare and jockey safety in circumstances where dexamethasone operated as a powerful substance which could mask injury.

1. In considering this ground of review, it is important to emphasise that this is a judicial review proceeding. It differs from, say, an appeal from a lower court or tribunal on a question of penalty. There is no opportunity for the Court in the discharge of its powers on judicial review to re-exercise the Tribunal's discretion on the disposition of the Charge. If there is legal error in the exercise of the discretion to impose a penalty under the Racing Act and Rules, the appropriate course is to set aside the Tribunal's order and remit the matter for further hearing and determination.
2. The Racing Act and the Rules afford the Tribunal significant discretion on the question of an appropriate penalty for a breach of AR 240(2).
3. Section 50ZE of the Racing Act relevantly provides:

(1) In the determination of any matter before the Victorian Racing Tribunal, the Victorian Racing Tribunal may -

(a) decide all questions of fact; and

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

1. Further, AR 283 is entitled 'Penalties' and relevantly provides:

(1) Subject to subrule (3), a person or body authorised by the Rules to penalise any person may, unless the contrary is provided, impose:

(a) a disqualification;

(b) a suspension;

(c) a reprimand; or

(d) a fine not exceeding $100,000.

(2) Further to subrule (1), a disqualification or suspension may be supplemented by a fine.

(5) Any person or body authorised by the Rules to penalise a person may in respect of any penalty imposed in relation to the conduct of a person and other than in relation to a period of disqualification or a warning off, suspend the operation of that penalty either wholly or in part for a period not exceeding 2 years, on terms they think fit.

(7) A person or body authorised by these Australian Rules to suspend or disqualify any trainer may defer the commencement of the period of suspension or disqualification for no more than 7 clear days following the day the suspension or disqualification was imposed, and upon terms and conditions considered fit.

1. AR 283 does not contain any 'contrary provision' in respect of the imposition of a penalty for a breach of AR 240(2). It follows that the Tribunal was empowered to impose a suspension of six months, without any suspension of the operation of that penalty under AR 283(5), subject of course to ensuring that its discretion to impose that penalty was otherwise exercised in accordance with law. There was no minimum or, indeed, maximum 'tariff' prescribed for a breach of this kind.
2. I do not accept Mr Harris' contention that the Tribunal failed to properly consider his relative culpability in exercising its discretion to impose an appropriate penalty.
3. First, the Tribunal was satisfied on the basis of the evidence adduced at the liability hearing that the Charge had been proved to the requisite standard. The principal submissions made by Mr Harris at the penalty hearing on the absence of testing for dexamethasone metabolites and the inability of the testing process to exclude the possibility of contamination were matters that the Tribunal correctly identified as being 'not of great relevance' to its deliberations on the question of penalty, those arguments having been already considered and determined in the liability decision.
4. Second, the Tribunal was entitled to and did consider Mr Harris' prior record of breaches of AR 240(2), particularly in respect of dexamethasone, in its consideration of an appropriate disposition. One of the main features of Mr Harris' submissions before me was that the 'tariff' imposed on him by the Tribunal was too high for a presentation offence, even in the circumstances of his adverse prior record of presentation offences. However, the Tribunal's consideration of Mr Harris' prior breaches of the same rule, including the circumstance of the prior determination to suspend his licence, albeit on a suspended basis, were matters that were plainly relevant for the Tribunal to take into account in arriving at the conclusion that an immediate suspension of his licence was warranted in all of the circumstances.
5. Third, the various prior cases put by the parties before the Tribunal indicated the broad range of penalties available, subject to the particular circumstances of each case. They do not demonstrate an 'established tariff' for a trainer with a history of presentation offences. The suspension imposed was a penalty that was it open to the Tribunal to impose under the Rules in the Tribunal's exercise of its discretion, and considerations of parity did not override the need for the Tribunal to consider the unique facts and circumstances of the case before it.
6. Fourth, it is of some significance that in weighing the matters put before it on the question of penalty, including the prior record of presentation offence breaches, the Tribunal nevertheless rejected Racing Victoria's submission that the licence of Mr Harris should be disqualified rather than suspended.
7. This last matter also neatly illustrates why there is no merit in any suggestion that the Tribunal failed to bring an independent and impartial mind to the question of penalty, or was otherwise biased against Mr Harris on the question of penalty. It is also notable that the Tribunal was at pains during the course of the penalty hearing to encourage Mr Harris to expand on his submissions about the effect that a loss of licence would have on him, raising issues relating to his health, financial position and other matters.[97]
8. It follows that there was no relevant error disclosed by the Tribunal's imposition of a six month suspension on Mr Harris.

1. There was objection taken by Racing Victoria to the admission into evidence of a series of five emails dated 13 October 2023, 11 February 2024, 20 February 2024, 27 June 2024 and 10 October 2024.[98] The emails concerned correspondence between Racing Victoria and Mr Harris prior to and following the liability hearing. The objection was one of relevance. With the exception of the email 13 October 2023 from Racing Victoria to Mr Harris, which concerned the detection of a different substance and its metabolite in a sample taken from Dawn County at a different race meeting, I have determined to admit the emails on the basis that they were broadly relevant to the case that Mr Harris wished to advance on Ground 1. The email dated 13 October 2023 was not relied on at either the liability nor penalty hearings, and was not relevant to any ground of review before me. I decline to admit that email into evidence on the application.
2. Mr Harris also sought to rely on a document entitled 'Detection Times for Equine Medications - Pocket Guide' dated November 2013.[99] Again, the document was not relied on at either the liability nor penalty hearings, and I am unable to discern its relevance to any ground of review. I decline to admit that document into evidence on the application.
3. Finally, there was some suggestion at the hearing that Mr Harris took objection to the admission into evidence of the complete Steward's Brief of Evidence.[100] That document was admitted into evidence in its entirety without objection at the liability hearing, and is properly part of the materials on which consideration of Mr Harris application before me has proceeded.

1. The proceeding will be dismissed.
2. My preliminary view is that Mr Harris should pay Racing Victoria's costs of the proceeding, on the basis that costs follow the event and Mr Harris has not succeeded on any of his four grounds of review.
3. Notwithstanding, I will reserve liberty to the parties to apply for some further or different order as to costs and any other matter and provide an opportunity for short written submissions to be filed on any such matter.

[1] Notice of Charge dated 14 August 2023, Court Book (CB) 146-148.

[3] The Tribunal was constituted by a Judge sitting as Chairperson and two members.

[4] Racing Victoria v Kane Harris, Victorian Racing Tribunal Decision dated 11 October 2024 (Liability Decision).

[5] Racing Victoria v Kane Harris, Victorian Racing Tribunal Decision dated 14 November 2024.

[6] Paragraph 1 of order of Judicial Registrar Lorenz dated 16 December 2024.

[7] Transcript of Proceedings, Kane Harris v Racing Victoria & Ors (Supreme Court of Victoria S ECI 2024 06318, Hannon J, 25 August 2025) (Transcript) T22 line 31-T24 line 8.

[8] Paragraph 1 of order of the Honourable Justice Hannon dated 25 August 2025.

[9] Defined in paragraph [1] of these reasons as the Rules.

[10] It is noted that in amendments to the Rules effective from 1 July 2025, breaches of AR240(1) and (2) were deleted from the definition of 'Serious Offence'. Those amendments are not relevant to the application before this Court.

[11] Sub-paragraph (3) retains a discretion for a Principal Racing Authority or the Stewards to find no breach has occurred in certain circumstances involving samples containing testosterone or hydrocortisone, but not any other prohibited substance.

[12] On 1 February 2024, Racing Australia published a revised list of screening limits for the purposes of AR 257 which, inter alia, added as an alternative screening limit for dexamethasone the measurement of 0.02ng/mL in plasma. Once again, the revised screening limits for dexamethasone did not specify any measurement by metabolite. When Racing Australia published a further revised list of screening limits on 1 May 2025, there was no change to the screening limits in respect of dexamethasone.

[15] Sub-paragraph (kk) also lists corticosteroids.

[16] Originating Motion filed 22 November 2024, CB 4.

[17] Kane Harris, 'Plaintiff - Written Outline of Submissions and Authorities', 17 March 2025 [15].

[18] Directions hearings were held on 23 November 2023, 15 February 2024, 24 April 2024 and 15 May 2024 before the Tribunal Chair and, in the latter two cases, all Tribunal members. Mr Harris appeared with the assistance of his father, Mr R Harris, on each occasion.

[19] Transcript of Directions Hearing, Racing Victoria v Kane Harris (Victorian Racing Tribunal, Judge J Bowman, J Bourke and D Hikri, 15 May 2024) T5 line 39-T7 line 1, Supplementary Court Book (SCB) 450-452.

[20] Transcript of Hearing, Racing Victoria v Kane Harris (Victorian Racing Tribunal, Judge J Bowman, J Bourke and D Hikri, 19 June 2024) (Liability Hearing Transcript) T2 lines 12-18 CB 30.

[21] The First Certificate of Analysis was dated 28 March 2023 and signed by Dr David Batty, Laboratory Director, RASL (RASL Certificate) CB 278. The Second Certificate of Analysis was dated 5 April 2023 and signed by John Keledjian, General Manager, ARFL (ARFL Certificate) CB 291.

[22] Liability Hearing Transcript (n 20) T5 line 38-T8 line 1 CB 33-36.

[23] Ibid T8 lines 3- 5; CB 36.

[24] Ibid T11 line 35-T12 line 24 CB 39-40.

[26] Ibid T9 line 43-T10 line 9 CB 37-38.

[29] Ibid T21 lines 34-48; T23 lines 4-11 CB 49; CB 51.

[31] Technical Note 17 - December 2006, Exhibit 3 in Racing Victoria v Kane Harris (Victorian Racing Tribunal, Judge J Bowman, J Bourke and D Hikri, 19 June 2024).

[32] Australian Racing Forensic Laboratory Urine Collection Document, Exhibit 4 in Racing Victoria v Kane Harris (Victorian Racing Tribunal, Judge J Bowman, J Bourke and D Hikri, 19 June 2024) CB 370.

[33] Liability Hearing Transcript (n 20) T32 line 22-T35 line [1845] EngR 351; 1 CB 60-63.

[34] Ibid T51 line 5- 29 CB 79.

[36] Ibid T54 line 5-T55 line [1846] EngR 284; 2 CB 82-83.

[37] Ibid T55 line 26-T56 line 43 CB 83-84. [CB 83-84].

[38] Ibid T67 lines 1-21; T67 line 34-T68 line 4 CB 95-96.

[39] Ibid T67 line T67 line 34-T68 line 10 CB 95-96.

[40] Ibid T72 line 41-T74 line 1 CB 100-102.

[42] Liability decision (n 4) pp 3- 7 CB 13-17.

[45] Ibid p 9 CB 19.

[46] Ibid pp 9- 10 CB 19-20.

[48] See, for an explanation of fundamental principle, Mason J in Kioa v West (1985) 159 CLR 550 at 584-585.

[49] Racing Act, Division 1 of Part IIA.

[50] Ibid Division 3 of Part IIA.

[51] Ibid s 50Q(1)(h).

[52] Ibid s 50Q(1)(i).

[53] Ibid s 50Q(1)(j).

[54] Ibid s 50Q(1)(k).

[55] Ibid s 50Q(1)(l).

[56] Ibid s 50Q(1)(m).

[57] Ibid s 50W(1).

[58] Further Supplementary Court Book (FSCB) 475, 478.

[60] See, for example, the extensive discussion at the directions hearing conducted on 15 May 2024 (n 19) T4 lines 13-19; T5 line 39-T7 line 1 SCB 449-452.

[62] Liability Hearing Transcript (n 20) T51 lines 5- 26 CB 79; T72 line 41-T73 line 2 CB 100-101.

[63] Ibid T6 line 32-T7 line 1 SCB 451-452.

[64] See, for example, Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, [3]-[8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[65] See, for example, Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289, [11] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ).

[66] Plaintiff - Outline of Written Submissions (n 17) [12].

[68] Ground 2a, Originating Motion (n 15) CB 4.

[71] This submission was addressed extensively in written reply submissions filed on behalf of Mr Harris; 'Plaintiff - Response to Defendants Outline of Submissions' filed 24 July 2025, and at hearing.

[72] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398, [17] (Keane, Gordon, Edelman, Steward and Gleeson JJ).

[73] Statement of Dr Jamie Wearn dated 25 July 2023, Exhibit 6B in Racing Victoria v Kane Harris (Victorian Racing Tribunal, Judge J Bowman, J Bourke and D Hikri, 19 June 2024) CB 158.

[74] Ibid RASL Certificate; ARFL Certificate (n 21).

[75] Ibid Statement of Gary Harrison dated 31 July 2023 CB 155.

[76] Ibid Sample Identity Document dated 17 February 2023, CB 270.

[77] Ibid Transcript of Interview with Carly Thomas, T2 lines 6-7, CB 218.

[78] Ibid Statement of Adam Cawley dated 18 April 2023 CB 170; Liability Hearing Transcript (n 20) T8 line 11-T32 line 18 CB 36-60.

[79] Ibid Liability Hearing Transcript (n 20) T52 line 3-T72 line 39 CB 80-100.

[80] Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611.

[81] There is some doubt as to whether the issue of contamination forms part of Mr Harris' case on this application (see, for example, 'Plaintiff's Response to Defendant's Reply Submissions dated 24 July 2025, at [7]-[11])). I have nevertheless proceeded on the basis that Mr Harris' case below raised the issue of potential contamination and that it was a matter expressly dealt with by the Tribunal.

[82] Racing Victoria, 'Defendant's Outline of Submissions', 17 April 2025, [27] CB 423-424.

[83] Liability Hearing Transcript (n 20) T10 lines 7-9 CB 38.

[84] Liability Decision (n 4) CB 13-14.

[86] Ground 3, Originating Motion (n 15) CB 6.

[87] Kane Harris, 'Plaintiff - Response to Defendants Outline of Submissions' filed 24 July 2025, [5].

[88] Kane Harris, 'Submissions of Kane Harris' filed 5 June 2025, FSCB 482.

[89] Racing Victoria, 'Defendant's Outline of Submissions in Reply' filed 8 August 2025, [9]-[10].

[90] Transcript (n 7), T49 line 31-T50, line 5.

[91] The penalty hearing transcript records that following submissions made by Mr R Harris, a correction was made by Racing Victoria to the summary table sent to the Tribunal in advance of that hearing, where some of the particulars of the penalties recorded in respect of the October 2022 findings had been transposed: Racing Victoria v Kane Harris (Victorian Racing Tribunal, 14 November 2024) (Penalty Hearing Transcript) T9 line 12- 19 CB 120.

[92] In respect of the October 2022 presentation offences, Mr Harris pleaded guilty at the Tribunal but subsequently appealed the Tribunal's penalty decision to the Victorian Civil and Administrative Tribunal (VCAT). The period of the suspended sentence was reduced by one month on appeal (Harris v Racing Victoria Limited [2024] VCAT 362, particularly at [82]-[85]). In accordance with VCAT's orders, the period during which the licence suspension was to be suspended was due to commence on 19 April 2024. As a consequence, when submissions were made at the penalty hearing below, the circumstances of the Charge did not trigger a breach of VCAT's orders.

[93] The matter of Callan Suvaljko, Racing Penalties Appeal Tribunal Determination dated 22 August 2024 (Suvaljko). Racing Victoria also referred the Tribunal to the matter of Racing Victoria v Austin Coffey (Victorian Racing Tribunal, 10 October 2024).

[94] Penalty Hearing Transcript (n 91) T26 lines 23-38 CB 137.

[95] Ibid T13 line 32-T14 line 2 CB 124-125.

[96] Ibid T18 line 31-39 CB 129. This contention was contested by Racing Victoria.

[97] Ibid T21 line 30 to T24 line 40 CB 132-135.

[98] The emails were all produced in the FSCB, at 469-478.