Simiana v Harness Racing New South Wales

(i) The Harness Racing Act 2009

1. Harness Racing in New South Wales is regulated by the Harness Racing Act 2009. Pursuant to that Act, HRNSW is a body corporate comprising five members appointed by the Minister.
2. Section 9 of the Act provides for the functions of HRNSW: (1) HRNSW has the functions conferred or imposed on it by or under this or any other Act or law. (2) Without limiting subsection (1), the functions of HRNSW include the following: (a) to control, supervise and regulate harness racing in the State, (b) to register harness racing clubs, harness racing horses, owners, trainers and drivers of harness racing horses, bookmakers for harness racing and other persons associated with harness racing, (c) to initiate, develop and implement policies considered conducive to the promotion, strategic development and welfare of the harness racing industry in the State, (d) to distribute money received as a result of commercial arrangements required by the Totalizator Act 1997, (e) to allocate to harness racing clubs the dates on which they may conduct harness racing meetings. (3) HRNSW may affiliate with such organisations, whether in or out of New South Wales, as HRNSW considers appropriate. (4) The functions of HRNSW are not limited by the rules and are to be exercised independently of Harness Racing Australia or any successor.
3. The powers of HRNSW are broad. Relevantly to these proceedings s 10 provides as follows: 10 Powers of HRNSW (1) HRNSW has power to do all things that may be necessary or convenient to be done for or in connection with the exercise of its functions. (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, (c) 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, … (h) prohibit a person from attending or taking part in a harness racing meeting, … (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.
4. Section 11 provides for the registration functions of HRNSW: 11 Registration functions of HRNSW - general (1) HRNSW is to exercise its registration functions so as to ensure that any individuals registered by HRNSW are persons who, in the opinion of HRNSW, are fit and proper persons to be so registered (having regard in particular to the need to protect the public interest as it relates to the harness racing industry). (2) Without limiting subsection (1), a person is not to be so registered if the person has a conviction and HRNSW is of the opinion that the circumstances of the offence concerned are such as to render the person unfit to be so registered. (3) This section does not limit any provisions of the rules relating to the exercise of the registration functions of HRNSW. (4) In this section: conviction has the same meaning as in the Criminal Records Act 1991 but does not include a conviction that is spent under that Act. registration functions means the functions referred to in Division 1 of Part 3.
5. Part 3 of the Act sets out the provisions for "Control and Regulation of harness racing." Division 1 deals with registration. Section 18 makes provision for registration of harness horses and persons associated with harness racing as follows: 18 Registration of harness horses and persons associated with harness racing (1) HRNSW may, in accordance with the rules, register or refuse to register any harness racing horse, or any owner, trainer or driver of harness racing horses, bookmaker or other person associated with harness racing. (2) HRNSW must not refuse to register any harness racing horse or any person under subsection (1) unless it is of the opinion that it would be in the best interests of the harness racing industry to do so.
6. Division 2 of Part 3 provides for rule-making: 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.

(ii) AHR Rules

1. HRNSW has adopted the Australian Harness Racing Rules ("AHRR"). These rules provide for a wide variety of aspects of harness racing. Part 2 of the AHRR deals with Stewards and their powers. Rule 15 provides relevantly as follows: 15. (1) Stewards are empowered - (a) to direct and control at any meeting or race the activities of officials, owners, qualifying/requalifying supervisors, trainers, drivers, bookmakers, clerks, persons attending horses and anyone else appointed, employed or engaged in or about the meeting or race; … (e) to suspend or disqualify any person from participating in or being employed or engaged in or about the harness racing industry; … (ae) to do anything else reasonably necessary to the performance of their duties …
2. Rule 15A gives stewards a right to enter land: 15A. (1) Without limiting Rule 15, the Stewards are empowered to enter upon land and premises owned or occupied by a licenced or registered person, or occupied by permission or licence of a licences or registered person or where any registered horse is kept in the performance of any of the Stewards' powers under these rules. (2) A steward who enters and remains on land or premises under this rule shall not thereby commit a trespass thereon and no action shall be brought or maintained against the Stewards or the Controlling Body for any damages or relief in respect of such entry or remainder.
3. Part 4 of the AHRR provides for licences. Rule 90 provides for the grant of licences as follows: 90. (1) The Controlling Body [1] may by licence regulate any activity connected with the harness racing industry. (2) An application for a licence shall be made by the persons in the manner and form and by accompanied by such documentation, information and fees as the Controlling Boy may determine. (3) A person applying to be relicensed with a Controlling Body shall, if previously licensed by another Controlling Body or recognised harness racing authority, provide a written clearance from the Controlling Body or recognised harness racing authority detailing the status of the person relating to current penalty, debt or other embargo. (4) The Controlling Body may grant a licence for such period and upon such terms and conditions as it thinks fit. (5) An application for a licence may be refused by the Controlling Body without assigning any reason. (6) A licence may be suspended or cancelled: (a) by the Controlling Body or the Stewards for breach of a term or condition of the licence; or (b) by the Controlling Body where the Controlling Body is satisfied that the person holding the licence is not a fit and proper person to be associated with harness racing. (7) The type, grade or class of a licence held by a person may be varied by the Controlling Body or by the Stewards. (8) The terms or conditions attaching to a type, grade or class of licence may be varied by the Stewards or the Controlling Body.
4. Part 11 of the AHRR deals with enquiries and investigations. Rule 181, under the heading 'Conduct and Scope' provides that the Stewards may, and, when directed by the Controlling Body, shall, conduct inquiries or investigations in such manner as they think fit, into any occurrence or matter at, or arising out of, or connected with, a meeting, race or event, or into any aspect of the harness racing industry, or into anything concerning the administration or enforcement of these rules.
5. Part 12 of the AHRR deals with prohibited substances, including that a controlling body may determine what is a prohibited substance, provision for the testing for such substances (including in and out of competition), the requirement for trainers to keep log books, provision for evidentiary certificates, possession on course of unregistered substance and disqualification.
6. There was an unresolved background issue between Mr Simiana and HRNSW regarding the basis upon which it determined in early 2017 that he should be disqualified and suspended. That issue was the validity or otherwise of the evidentiary certification HRNSW relied upon to assert Mr Simiana had engaged in "doping". Rule 191 provides for this process. 191. (1) A certificate from a person or drug testing laboratory approved by the Controlling Body which certifies the presence of a prohibited substance in or on a horse at, or approximately at, a particular time, or in blood, urine saliva, or other matter or sample or specimen tested, or that a prohibited substance had at some time been administered to a horse, is prima facie evidence of the matters certified. (2) If another person or drug testing laboratory approved by the Controlling Body analyses a portion of the sample or specimen referred to in sub rule (1), and certifies the presence of a prohibited substance in the sample or specimen, that certification together with the certification referred to in sub rule (1) is conclusive evidence of the presence of a prohibited substance. (3) A certificate furnished under this rule which relates to blood, urine, saliva, or other matter or sample or specimen taken from a horse at a meeting shall be prima facie evidence if sub rule (1) only applies, and conclusive evidence if both sub rules (1) and (2) apply, that the horse was presented for a race not free of prohibited substances. (4) A certificate furnished under this rule which relates to blood, urine, saliva or other matter or sample or specimen taken from a horse shall be prima facie evidence if sub rule (1) only applies, and conclusive evidence if both sub rules (1) and (2) apply, that the prohibited substance was present in or on the horse at the time the blood, urine, saliva or other matter or sample or specimen was taken from the horse. (5) Sub rules (1) and (2) do not preclude the presence of a prohibited substance in or on a horse, or in blood, urine, saliva, or other matter or sample or specimen, or the fact that a prohibited substance had at some time been administered to a horse, being established in other ways. (6) Sub rule (3) does not preclude the fact that a horse was presented for a race not free of prohibited substances being established in other ways. (7) Notwithstanding the provisions of this rule, certificates do not possess evidentiary value, nor establish an offence, where it is proved that the certification procedure or any act or omission forming part of or relevant to the process resulting in the issue of a certificate, was materially flawed.
7. Senior counsel for HRNSW submitted that this Rule highlights the seriousness with which the use of prohibited substances ("doping") is treated providing as it does for an "absolute liability offence" once the regulator has two certificates showing the presence of a prohibited substance.

(iii) Relevant "Local Rules"

1. HRNSW also had "Local Rules" in place which provided an expanded articulation of the Stewards' power to enter premises. Power to enter premises 15 (1) Without limiting AHRR 15, the Stewards have the power at any time to enter upon the premises occupied by or under the control of a licensed person and used in any manner in relation to any license (hereinafter referred to as the premises) to: (a) Inspect and search premises. (b) Examine anything on the premises and also search any licensed person thereon. (c) Take extracts from or make copies of, or download or print out, any documents found in the course of the inspection. (d) Photograph or film anything on the premises. (e) Secure against interference anything that cannot be conveniently removed from the premises. (f) Require any person who is on the premises to: (i) State his or her full name and address. (ii) Answer (orally or in writing) questions put to them that are relevant to the investigation. (iii) Give any information in the person's possession or control that is relevant to the inspection. (iv) Operate equipment or facilities on the premises for inspection purposes. (v) Give any translation, code, password or other information necessary to gain access to or interpret and understand any document or information located or obtained by the Stewards in the course of the inspection relevant to the investigation. (vi) Give other assistance that the Stewards reasonably require to carry out the inspection. (2) A Steward who enters and remains upon land or premises under this rule, shall not thereby commit a trespass thereon and no action shall be brought or maintained against the Steward or Controlling Body for any damages or relief in respect of such entry or remainder on the premises. (3) For the purposes of this rule premises include land, buildings or any fixed or movable structure including any vehicle. (4) A person who fails to comply with any part of this rule is guilty of an offence.
2. Also relevant is Local Rule 181: Conduct and scope NSWLR181 (1) For the purposes of this rule, a reference to HRNSW includes a reference to a person (or group of persons, such as the Stewards) authorised by HRNSW (whether under these Rules or otherwise) to conduct any interview, investigation, inquiry or hearing. (2) Any interview, inquiry or hearing conducted by HRNSW may be recorded by or on behalf of HRNSW using an audio and/or visual recording device and/or by the taking of a transcript or handwritten or typed notes. (3) Any recording, notes or transcript made by (or on behalf of) HRNSW shall be available for use as evidence in any subsequent hearing, review or in any related proceedings conducted by HRNSW or otherwise under the Harness Racing Act 2009 (NSW) and Racing Appeals Tribunal Act 1983 (NSW) as in force from time to time. (For the avoidance of doubt, the provisions of this rule (3) are subject to any rules (including the rules of evidence) and/or procedural requirements applicable in any subsequent hearing or review).

(iv) Appeals Tribunal Legislation and Regulations

1. Mr Simiana's various appeals that occurred before these proceedings were governed by the Racing Appeals Tribunal Act 1983 and Racing Appeals Tribunal Regulation 2015. At the time of hearing, Mr Simiana's appeal against disqualification was yet to be heard and his disqualification had been stayed pending the full appeal hearing. It was common ground that the effect of the Regulation (Clause 9) is that whilst the Tribunal has jurisdiction to review decisions of HRNSW to refuse or suspend a licence, no appeal lies to the Tribunal regarding licence conditions. The only avenue of review for that is this Court.

(v) Licensing Committee charter

1. The Licensing Committee charter was tendered on behalf of Mr Simiana. In the first part of the document, under the heading "Objectives" the following is stated: The Licensing Committee (Committee) is a Committee established under the Harness Racing Act 2009 and the New South Wales Local Rules, incorporating the Australian Harness Racing Rules (The Rules). The Committee has been established by the Board of Harness Racing New South Wales to assist in undertaking oversight and corporate governance responsibilities in respect of Harness Racing New South Wales licensing decisions. The purpose of the Committee is to bring together, personnel from within Harness Racing New South Wales with a view to leveraging from their diversity, thereby strengthening the creditability and robustness of licensing decisions. The Committee has been granted delegated authority by the Board of Harness Racing New South Wales, to determine approval of Licences. The type of licenses to be granted by the Committee is determined by the Board of Harness Racing New South Wales from time to time. The Committee must report on a monthly basis to the Board of Harness Racing New South Wales on all matters pertaining to licences issued or otherwise.
2. Part 3.0 of the document provides, under the heading "Duties and Responsibilities", a very wide list of powers described as "the role of the committee", including relevantly: 1. … 2. Oversee the assessment of applications for licences under HRNSW licensing Policy undertaken by the Registrar/Licensing officer where all criteria are met and there are no reasonable areas for concern. 3. Consider issues in relation to applications for licences under HRNSW Licensing Policy that require additional scrutiny with a view to: i. determining if the criteria for the relevant licence under HRNSW Licensing Policy has been satisfied; and ii. approving, denying or attaching conditions to a licence. 4. … 5. Investigate issues that may impact on a person's ability to hold or continue to hold a license with Harness Racing New South Wales; 6. Inform the Board of any determinations that the Committee has undertaken in relation to: i. Issuing of Licence; ii. Show Cause action; or iii. Non-issue or conditions imposed upon a licence. 7. Oversee the issue of show cause matters and manage show cause hearings. 8. … 9. … 10. … 11. … 12 … 13. Attend to any other matter incidental to fulfilling the above roles; and 14. Perform any other function as requested by the Board of Harness Racing New South Wales.
3. Committee Membership is stated to comprise a minimum of four persons appointed by the Board of HRNSW. That would normally comprise a Registrar/Licensing Manager, Integrity Officer or their representative which must be the CEO, Licensing Officer and Chief Steward or their representative. There is provision for a Chairperson and for secretarial assistance. The Committee will be assigned a secretary. Generally the Licensing Officer will fulfil this role. It is stated in 4.2 that the Secretary will be responsible, in conjunction with the Chairperson, for recording and keeping the minutes of meetings.
4. There is provision for Committee procedures. It is stated that meetings should be held every two weeks or as otherwise reasonably determined, and there needs to be an agenda circulated to Committee members prior to each meeting, supported by explanatory documents where necessary.
5. In 5.2 there is provision for a quorum which must consist of the Chairperson, a representative from the Stewards (to ensure the inclusion of industry intelligence and practicing knowledge) and the Registrar/Licensing Manager or Licensing Officer to ensure that the implications of Committee decisions are fully considered.
6. 5.3 provides that each member of the Committee possess one (1) equal vote in relation to any Committee matter and that this can be exercised individually or by a representative and all decisions of the Committee must be passed by a majority decision of the Committee.
7. Provision 5.5 under the heading "Special Conditions" provides that where the Committee decides to attach special conditions to a licence, the Committee shall agree on the intent of the wording of the conditions that attach to the licence and the wording of the conditions are to be recorded in the minutes of the Committee meeting.
8. 5.8 provides for "Decision Conveyance": "If a decision of the Committee or Board of Harness Racing New South Wales is required to be conveyed to an applicant that decision will be conveyed by the Registrar/Licensing Manager or Integrity Officer under the direction of the Committee."
9. Part 6.0 deals with emergency decision making. There is provision for decisions to be made without a meeting in "exceptional circumstances". It is not suggested that the circumstances relevant to this case invoked those emergency decision making provisions.

Factual background

1. Mr Simiana has been a trainer of standard bred horses for harness racing for approximately 15 years and has held an A grade licence to drive and train horses for over 13 years.
2. His licences had last been renewed on 1 September 2015, at which time he was granted an A Grade licence to drive and train.
3. On 29 July 2016, he was stood down from all involvement in harness racing pending an enquiry by the Stewards. On 15 February 2017, the enquiry concluded with Mr Simiana being found guilty of eight charges relating to the presence of a prohibited substance in and administration of a prohibited substance to horses in April and May 2016. A decision was made by the Stewards to impose a period of disqualification of 16 years.
4. An appeal was lodged and a stay of the orders and lifting of the suspension was sought. It was argued that rule 191(7) applied and so the certification of substance was materially flawed and so of no evidentiary value. It was also argued that there was evidence provided to the Stewards that showed that this was so but it was ignored.
5. On 5 May 2017, the Racing Appeals Tribunal decided that the orders and decision of the Stewards should not be carried into effect pending the hearing of the substantive appeal. The suspension was lifted and disqualification stayed.
6. On that day Mr Simiana applied for renewal of his licences. After an exchange in relation to showing cause HRNSW provided a letter dated 4 July 2017 explaining that Mr Simiana's application for issue of licences was refused. Reasons were provided in that correspondence. On the same day Mr Simiana lodged an appeal with the Racing Appeals Tribunal.
7. The appeal proceeded on a number of bases, one of which was that an issue estoppel applied by virtue of the Racing Appeals Tribunal's decision of 5 May 2017. The Tribunal stated in its decision of 18 August 2017, that the 5 May 2017 decision provided for the stay of the disqualification, but did not determine the issue of fitness and propriety which required separate consideration under s 11 of the Act, ([17] of the 18 August 2017 decision) and no estoppel could apply.
8. After reviewing the evidence and submissions, the Tribunal concluded that Mr Simiana was a fit and proper person to be issued with a licence.
9. On 22 August 2017, Mr Simiana's solicitor wrote to the Tribunal demanding that HRNSW issue licences to Mr Simiana forthwith, claiming it would be a contempt of the Tribunal's decision if it failed to do so.
10. On 23 August 2017 a solicitor acting for HRNSW responded, explaining that the Licensing Committee of HRNSW had not yet convened, and that upon convening, the Committee will be issuing Mr Simiana with a licence "in accordance with the decision of the Tribunal that he is a fit and proper person to hold the same" and further, that "the Committee will consider any necessary conditions to be imposed upon the licence, including any procedural pre-conditions…".
11. The letter also stated: "the terms of your letters appear to suggest that the decisions of the Tribunal of 18 August 2017 in some way preclude the Committee from imposing any conditions upon the licences to be issued to your client. The anticipated imposition of or consideration of conditions on those licences in no way attempts or intends to undermine the effects of the Tribunal's findings that your client is a fit and proper person to be issued with a licence…"
12. The letter then goes on to provide reasons why HRNSW is entitled to impose licence conditions and not be in contempt of the Tribunal because, amongst other things: • HRNSW and the Stewards have broad powers to impose conditions on any licence at any time (AHRR 90(4) and (8) and clause 2.20.2 of the HRNSW Licensing Policy), • The Tribunal's decision does not somehow suspend the power of Stewards to impose any other conditions that would otherwise be made by Stewards or HRNSW. • The imposition of conditions was not raised for consideration by the Tribunal. It arguably cannot be, as imposition of conditions is not actually an appealable decision having regard to clause 9 of the Racing Appeal Tribunal Regulation 2015.
13. On 25 August 2017, the solicitor acting for Mr Simiana emailed the Racing Appeal Tribunal Secretary directly stating: Despite the above appeal being upheld we advise that HRNSW has to date refused and/or failed to licence Shaun Simiana. We respectfully seek an order from the Tribunal that: 1. Shaun Simiana is unconditionally granted an A Grade Trainer's Licence and an A Grade Driver's Licence effective immediately upon making of this order and/or; 2. Any other order that the Tribunal thinks fit.
14. Correspondence between various HRNSW personnel and its solicitor followed. On 1 September 2017 a short decision from the Tribunal was formalised to the effect that the Tribunal was not prepared to meet the request made on behalf of Mr Simiana stating that: "The fact of the issue of particular types of licences and any conditions that might attach to them was not addressed and was not a function of the Tribunal on the appeal here. Those matters appear not to have been addressed in the decision appealed against. The fact that the renewal application being for A Grade Licences appears not to be determined as the Licensing Committee would still have to consider Grade and Conditions. This appeal was limited by the Regulation to the issue of a refusal to register, not a refusal to issue Grades of or conditionless licences, notwithstanding the grounds of appeal seeking A Grade licences. The decision appealed against, and the manner in which both parties ran the appeal was on fitness and propriety. That is all that the Tribunal decided".
15. Minutes tendered by HRNSW indicate that on 14 September 2017, the Licensing Committee met and resolved to issue a licence to Mr Simiana with certain specified conditions attached. There was no evidence of any plan or proposal being made at this time to approach Mr Simiana, or his legal advisors, to seek input at all regarding the content of the conditions.
16. On 18 September 2017, a letter was sent to the Mr Simiana. The full text of the letter is included in this judgment because there is an issue between the parties as to whether the letter should be considered to be a proposal for discussion between Mr Simiana and HRNSW, or communication of HRNSW's decision already made. Dear Mr Simiana RE: APPLICATION FOR RENEWAL OF 'A' GRADE TRAINER/DRIVER LICENCE On 14 September 2017, your application was considered at a meeting of the HRNSW Licensing Committee. At that time it was resolved that you would be issued with an 'A' Grade Trainer and Driver's Licence. The issue of such licences are conditional upon your written acknowledgement of the following conditions that are attached to the issue of those licences: 1. You are to provide HRNSW Stewards with access to your registered training property 24 hours a day/7 days a week through the issue of an electronic code, keys or other means required to access that property with 72 hours of your written acknowledgement of these conditions. Should that means of access to the property be prevented or become inoperable for any reason, this will result in the immediate revocation of the licence/s; 2. You are to attend your registered training property within one (1) hour of any request by a HRNSW Steward to do so; 3. Should you be unable to attend your registered training property in accordance with Condition 2, you are required to arrange for another licensed person to attend your registered training property on your behalf within one (1) hour of any request by a HRNSW Steward to do so; 4. You are to provide HRNSW Stewards with a complete list of all persons having independent access to your registered stables, including contact details; 5. You are to notify HRNSW Stewards by email immediately any registered horse for which you have lodged a stable return is removed from your registered stable location, the purpose of this and the time of its return. This includes leaving for training and racing purposes. 6. Any breach of the above conditions will result in the immediate withdrawal of your licence/s and no other licence applications will be considered by HRNSW. If you require any further information please contact me on [telephone number redacted]. Yours faithfully, MICHAEL PRENTICE Integrity Manager ACKNOWLEDGEMENT OF CONDITIONS I acknowledge that I understand the above conditions attached to the issue of my Trainer and Driver's Licence. I also understand and agree that failure to comply with any of the above conditions, in any manner, will result in the immediate revocation of the licence/s. Shaun Simiana Michael Prentice Date:
17. On 28 September 2017, Mr Simiana's solicitor forwarded a letter to HRNSW complaining of problems with the conditions, in particular that Mr Simiana had not been given an opportunity to be heard and that the proposed conditions were unreasonable and impracticable. It was argued that conditions 1 and 6 were inconsistent with the provisions of the Harness Racing Act, the Racing Appeals Tribunal Act and the Racing Appeals Tribunal Regulation, because they purport to avoid the application of the provisions contained in those statues and regulations that govern imposition of sanctions and cancellation of licences. (Whilst not elaborated upon in detail in this letter, this seems to be a reference to conditions 1 and 6 having the potential effect of removing Mr Simiana's right to be heard on a suspension or withdrawal of his licences if there is an asserted breach of a condition). The letter also argues that conditions 2 and 3 are inconsistent, and that the conditions are unlawful and are liable to be set aside.
18. The letter then goes on to demand a conditionless licence on the basis that this would be consistent with the decision of the Tribunal of 18 August 2017, and threatened legal action if the licence was not issued as demanded.
19. On 3 October 2017, a letter was sent by HRNSW's solicitors: We refer to your letter dated 28 September 2017 in this matter. We note that this letter is the first time in which you have articulated the basis of your client's complaint about the conditions imposed by HRNSW on or about 14 September 2017, and/or the manner in which it did so. To the extent that there is a complaint about your client not having an opportunity to address the conditions: • We note that you have taken the opportunity in your letter to address certain complaints; • We confirm that our client is prepared to consider additional submissions about the form of, or HRNSW's power to, impose such conditions. Please provide those within 7 days of the date of this letter. If further time is required, please let us know and our client will consider any request for an extension of time. It would assist if any further submissions address the following points arising from our letter of 28 September 2017: 1. In respect of the claim that Conditions 1 and 6 are said to be inconsistent with the provisions of the various legislation and delegated legislation referred to, your submissions should address the fact that, if HRNSW were to invoke immediate revocation of a licence, that your client would undoubtedly have an automatic right of appeal by way of full merits review by rehearing and with the ability to lead fresh evidence to the Racing Appeals Tribunal; 2. You should address how it is said that conditions 2 and 3 are inconsistent, when they are clearly interrelated. Your client should assume that, in circumstances where Condition 3 is met that our client will not allege a breach of Condition 2; 3. Your submissions should explain the basis on which it is said that the conditions are "unlawful and liable to be set aside". That is, please identity the alleged cause of action upon which any litigation would be based; Finally, I advise that in relation to Condition 6 my client will not press the aspect of that condition which states "…and no other licence conditions will be considered by HRNSW". We look forward to hearing from you. In the event that proceedings are commenced without a response to this letter, our client will produce this correspondence and it may well be relevant to consideration of any injunctive relief, as well as the question of costs.
20. On 4 October 2017, a letter was sent by Mr Simiana's solicitor to the solicitor for HRNSW. The full text is included because it sets out in detail matters of substance directly responsive to the requests made in the 3 October letter. We refer to the above and to your letter dated 3 October 2017, and respond as follows, using your same numbering for ease: 1. If purported conditions 1 and 6 are not inconsistent with the Act and Rules, and are not intended to pre-empt the disciplinary process, what function or purpose do they serve? HRNSW has purported to require - as a condition of the issue of a licence - that our client acknowledge the conditions HRNSW seeks to impose including 1 and 6. Our client should not be required to acknowledge conditions that are either not intended to have any substantive effect or are intended to pre-empt the disciplinary processes laid down under the Act and rules. 2. Purported conditions 2 and 3 are not expressed to be inter-related, condition 2 is expressed absolutely. HRNSW has purported to require - as a condition of the issue of a licence - that our client acknowledge condition 2. If the conditions are intended to be interdependent they should be so expressed. 3. The conditions purportedly imposed are unreasonable and impractical in that our client cannot practicably comply with the conditions. The particular difficulties that the conditions create include but are not limited to:- (a) A significant diminution of his capacity to earn his living. Our client is an on-call garage door installer and service provider. He estimates that between 80 to 90% of his work is conducted in locations are beyond one hour return distance. (b) On average our client installs about 5 to 6 garage doors a week at different locations in the Sydney metropolitan region. The tools and materials utilised take time to unpack and prepare. Any call to return to the registered stables within the hour would serve to render him unable to secure and store these unpacked tools and materials property and may represent a safety hazard at premises he attends. Moreso, some garage doors may be incomplete, lending itself to security risks and damage to third party property if it were to rain. (c) There are numerous public and private capital works in process throughout Sydney and this is leading to longer those unusual delays with traffic. As our client has to take his tools and materials, he is unable to use faster public transport. Our client does not wish to experience the stress and anxiety caused by such a deadline and does not wish to be placed in a position where he is pressured to drive quickly (even within speed limits). (d) Our client contracts with these customers to finish works within a particular time and date. He lines them up sequentially throughout the day. A return to the stables at would throw this schedule out and lead to breaches of contracts and considerable difficulties in re-scheduling. (e) Our client's family doctor is located several suburbs away and the imposition of a 1 hour schedule could lead to appointments being cancelled and rescheduled. Further, he would be unable to take his children on excursions beyond a certain distance. (f) Our client's legal advisers are situated approximately one hour away from his residence. He is entitled to consult with them freely and without impediment. (g) Our client assists his elderly mother in law with odd jobs from time to time. She is 90 years old and lives alone in a house in south west Sydney. This assistance would need to cease as the distance is beyond the hour return journey. (h) Our client has security and safety concerns with allowing free and unfettered access to his property. He has a wife and small children. (i) Our client is not able to rely upon other registered trainers as people may not follow through with undertakings and he cannot place them under any legal obligation to attend. (j) Where a horse is taken to an animal hospital and/or admitted, our client is unable to assure Stewards at what point it will return as it will depend upon the condition of the horse and the treatment so rendered. This will be up to veterinary staff. He may be required to stay and answer questions and attend to other matters with the vets and cannot be called upon to return to the stables on such short notice or be liable to a charge of "not care for animals". (k) The significant financial consequences than flow from such undertakings and the capacity of them to adversely affect his livelihood are profound and he would have to reconsider his employment, his expenditure and the financial circumstances of the family. As such the purported imposition of the conditions and the requirement that our client acknowledge the conditions amounts to an effective refusal of a licence and is inconsistent with the decision of the Appeals Tribunal that a licence should be granted. In relation to the third paragraph of the letter commencing "Finally…" we are the opinion that this misstates the terms of purported condition 6. HRNSW has purported to require our client to acknowledge, as a condition of the issue of a licence, that in the event of any breach of the conditions purportedly imposed, HRNSW will not be required to consider any subsequent licence applications by our client. That is manifestly inconsistent with the requirements of the Act, Regulations and Rules and is quite improper. It would not be sufficient for HRNSW to suggest in correspondence "that it will not press the aspect of the condition" even if it has not misstated the condition. If HRNSW proposed to comply with the decision of the Tribunal in favour of our client by issuing a licence subject to conditions, it should do so and our client can consider individually the validity of the conditions purportedly imposed. It is inappropriate that our client be required to acknowledge a number of conditions, globally, as a condition of being issued a licence.
21. No acknowledgment of this letter or any reply was provided to Mr Simiana or his solicitor. There is no minute or formal record of the Licensing Committee indicating that the contents of this letter was discussed or considered by the Committee or whether any fresh decision was made or the previous decision despite the matters raised, affirmed.
22. On 16 October 2017 the Summons commencing these proceedings was filed. A submission was made by senior counsel for HRNSW that this filing was in the "middle" of discussions, but no evidence of any such discussions was tendered.

HRNSW Evidence regarding procedural fairness September/October 2017

1. In his affidavit sworn 22 December 2017, Mr Prentice, the Integrity Manager employed by HRNSW and Chairperson of the Licensing Committee, stated that he had chaired the meeting of the Licensing Committee on 14 September at which the conditions were discussed and the determination made about them. He states that he provided the letter from Mr Simiana's solicitor dated 28 September 2017 complaining about the proposed conditions by hand to the other members of the Licensing Committee. The date(s), manner or circumstances in which he did so is not specified. He stated that "we all discussed it", although he acknowledged that no formal meeting was convened and no minutes taken.
2. In his supplementary affidavit, sworn on the day of the hearing, 1 February 2018, Mr Prentice described that the discussions primarily took place with each member of the Committee individually with him, and not all at the same time, although he recollected there "may have been an occasion when he, a Mr Wootton and Mr Loch all discussed the matter together".
3. Mr Prentice stated that none of the members changed their position in respect of the proposed conditions, other than the revision that was set out in the letter of 3 October 2017 in respect of condition 6, that HRNSW would not press the aspect of that condition which states "and no other licence conditions will be considered by HRNSW". (It was common ground that the letter contains an error and that part of the condition should read "and no other licence applications will be considered by HRNSW").
4. Objection was taken to Mr Prentice's February 2018 affidavit to the extent that it purported to speak for what other members of the Licensing Committee felt or decided. I did not accede to that objection but I am of the view that the evidence relied upon from Mr Prentice on this important issue was vague and unsatisfactory. There was no evidence as to how and when the material set out in the 4 October letter was considered by the Committee members, so whilst there is some evidence showing some consideration had occurred of the contents of the 28 September letter and the 3 October letter was the result of that, nothing cogent or comprehensible was stated about due consideration having been given to the matters set out in the 4 October letter or the Committee's prior decision being re-affirmed, despite those matters.

HRNSW's evidence regarding the reasons behind conditions 2 and 3

1. Mr Prentice deposed to it being the standard protocol of HRNSW for the trainer or an authorised representative of the trainer to be present when samples are collected and tested by HRNSW. He also stated that this is a protocol endorsed by the Australian Racing Forensic Laboratory's collection procedures there is a standard form in the testing kit that provides for a witness to acknowledge the sample collection process. He says that HRNSW has adopted the ARFL guidelines as its standard collection protocol.
2. Mr Prentice goes on to explain: "The reason for the one hour time period being imposed was the concern that the relatively short half-life of the substance for which the plaintiff's horses had previously tested positive, and the fact that the substance might be used by way of micro-dosing. Both those facts meant that the testing of any of the plaintiff's horses should be conducted as expeditiously as possible otherwise any testing might be ineffective".
3. Mr Prentice agreed in cross-examination that it was necessary to proceed with testing urgently and that in those circumstances the Stewards would not wait for the attendance of Mr Simiana or his nominee.

The Grounds for Review

1. Mr Simiana identified four bases for challenging the conditional licence decision. The first is that there was a failure to accord procedural fairness. The second is that the imposition of conditions 1 and 6, together with the requirement that Mr Simiana acknowledge that the conditions will lead to automatic withdrawal of licences, is ultra vires and contrary to law. The third is that the imposition of conditions 2 and 3 amount to an effective denial of a licence and are therefore beyond power and contrary to the decision of the Racing Appeals Tribunal of 18 August 2017. The fourth is that the conditions, in particular conditions 2 and 3 are manifestly unreasonable and so are invalid and liable to be set aside.
2. It is convenient to deal with the submissions made and my determination in respect of each of the grounds of review in this order.

First Ground: Procedural Fairness

1. Clearly the decision of HRNSW to impose conditions upon the grant of licences to Mr Simiana directly affects his rights and interests. HRNSW did not argue to the contrary. Mr Simiana submitted that procedural fairness required that HRNSW sought submissions or comment from him before purporting to impose the conditions set out in the 18 September 2017 letter. Prior to that letter and the decision communicated in it, there was no opportunity given to make submissions concerning the practicality of compliance with any conditions, (let alone the ones that were proposed) or his capacity to comply with them. There was no opportunity to address the necessity or justification for the imposition of conditions 2 and 3 requiring his or an authorised person's attendance within one hour's notice, at the unscheduled behest of a Steward.
2. HRNSW argued first that procedural fairness was provided during the "whole question of the application for renewal of his licence". The whole of the relevant procedures must be taken into account in assessing whether there has been procedural unfairness, rather than examining only a particular stage of the process: Greyhound Racing NSW v Cessnock & District Agricultural Association [2006] NSWCA 333 [80] per Basten JA. Due process here entailed the show cause notice issued to Mr Simiana on 23 May 2017 seeking his submissions as to being a fit and proper person to be licensed. Submissions about that were provided on 26 May 2017. The Court should also take into account that after the Licensing Committee's refusal to issue licenses on 4 July 2017, Mr Simiana was provided with reasons. He then appealed that decision which was determined by the Tribunal on 18 August 2017, also with reasons. Mr Simiana proceeded on the (mistaken) basis that he was entitled, because of the decision of the Tribunal, to be granted an unconditional licence. The Tribunal (correctly) declined to do so because in the words of the Tribunal: "The fact of the issue of particular types of licences and any conditions that might attach to them was not addressed, and it was not a function of the Tribunal on the appeal."
3. It was submitted that it is a misconstruction to treat the 18 September 2017 letter alone as the operative decision. There was no effect upon Mr Simiana by the proposed licence conditions because nothing came into effect until he chose to acknowledge the conditions and sign to that effect. It was implicit up to that point that changes could be made prior to the conditions coming into effect as conditions on the licence, just as conditions could have been varied once they were in place in accordance with AAHR 90 (8).
4. Second, HRNSW argued that the written notice of the proposed conditions contained in the 18 September 2017 letter contained an "implicit invitation" to respond to, query or comment on the nature of the conditions. The basis for this interpretation was stated to be that he was required to acknowledge that he understood the conditions and was invited to contact the HRNSW Integrity Manager if he required any further information.
5. Third, HRNSW argued that Mr Simiana was expressly provided with an opportunity to provide additional submissions about the form of or HRNSW's power to impose such conditions by its 3 October 2017 letter. To the extent that there was any procedural defect at the time of the letter of 18 September 2017, it was cured on 3 October when Mr Simiana was invited to make additional submissions.
6. Finally, it was argued that there would have been no difference to the outcome, even if submissions were made before the operative decision.
7. I find the submissions of HRNSW on this ground flawed and unconvincing. There does not appear to be any issue taken that HRNSW is required to accord procedural fairness in the making of its decision to impose conditions on the licences because it affects the rights and interests of Mr Simiana. There was no submission made that there was any contrary statutory intention. The law is abundantly clear that in such circumstances, procedural fairness must be accorded. The area for difference was centered upon what could be termed the necessary "content" of the requirement to provide procedural fairness in this context, identified in Minister for Immigration and Border Protection v Wzarh (2015) 256 CLR 326 [30] per Kiefel, Bell and Keane JJ, as "the real question; namely what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made".
8. One thing that is clear from the structure of the Act, Regulation and AHRR as well as HRNSW submissions and the determinations by the Racing Appeal Tribunal and the approach of HRNSW and its legal representatives in correspondence, is that the registration functions and decision-making of HRNSW, with the associated determination as to whether Mr Simiana is a fit and proper person to be registered is an entirely separate matter to the licensing functions and decision-making of HRNSW's delegate, the Licensing Committee, pursuant to AAHR 90. The operative decision is not about Mr Simiana's registration. That has already been decided by the Tribunal. The operative decision is the decision to only issue licenses with interrelated conditions attached.
9. In my view there is nothing in the correspondence leading up to the determination made by the Licensing Committee on 14 September or contained in the letter of 18 September 2017 that invites, inferentially or otherwise, debate, submission or argument regarding the conditions. The language employed by HRNSW is pre-emptory. It is clearly stated that no licence will be issued other than a licence conditional upon the six matters referred to and that any breach will result in immediate withdrawal of the licences, with no other licence applications to be considered by HRNSW.
10. To respond to the complaint by Mr Simiana's lawyer set out in its letter of 28 September with an invitation to "provide submissions about the form of or HRNSW's power to impose such conditions" does not "cure" the defect. First, as I have already concluded the decision has already been made by the Committee and minuted, formalised and communicated in accordance with the requirements of the Licensing Committee charter.
11. Second, I accept the submission made in reply by counsel for Mr Simiana that failure to accord procedural fairness cannot be cured by the provision of an opportunity to make submissions after a decision has been made per Calvin v Carr (1980) AC 574 at 591H-596G; (1979) 1 NSWLR 1 at 10C-14F. Asking for submissions about conditions already decided does not cure procedural fairness defects simply because the actual licence cannot come into effect until the plaintiff chooses to acknowledge all the conditions and sign to that effect.
12. A submission (faintly made) that Mr Simiana being placed on notice in July or August 2017 of the likelihood of conditions being imposed somehow informs the situation is rejected. Until a proposal, or at least an outline of what was being considered in terms of conditions is articulated in some way, there would be nothing upon which Mr Simiana could be heard. The approaches requesting unconditional licences had already been clearly and comprehensively rejected by HRNSW.
13. The submission that relief is futile because no difference would have been made to the outcome is also rejected. Even after consideration of the 28 September letter alone, condition 6 was modified in a very significant way. There has to have been, at the very least, a possibility that a proper consideration of submissions before the defining of conditions could have led to a different outcome.
14. Procedural fairness was not accorded prior to the operative decision. There is no evidence upon which I can place any weight that the matters raised on Mr Simiana's behalf in the 4 October 2017 letter were considered and taken into account by the Licensing Committee.
15. The first ground has been made out. I am of the view that an order in the nature of certiorari pursuant to s 69 of the Supreme Court Act quashing the decision should be made, based on the success of this ground alone.

Second Ground: Conditions 1 and 6 are ultra vires

1. The Harness Racing Act and the Racing Appeals Tribunal Act and Regulations make explicit provision for the grant and revocation of licences and provide a right of appeal against a revocation or a refusal to issue licences, however, given the potential for direct effect on Mr Simiana's rights and interests, the circumstances require a right to be heard before the suspension or revoking of a registered person's licence takes place, as concluded in Day v Harness Racing NSW [2014] 88 NSWLR 594 [100] to [107].
2. Because the terminology of conditions 1 and 6 incorporate as a consequence of breach, "immediate revocation of the licences" and "immediate withdrawal of your licences", Mr Simiana argues the requirement that he acknowledge the conditions (combined with the further acknowledgement that he "agrees that failure to comply with any of the above conditions, in any manner, will result in the immediate revocation of the licences"), potentially removes, or, at the very least, interferes with his rights to be heard against revocation or withdrawal of the licenses before that step is taken.
3. HRNSW argued that Mr Simiana would retain his right to have a full merits review by way of rehearing by the Tribunal pursuant to regulations 9(a) and 9(g) and s 15B (2) of the Racing Appeals Tribunal Act but this does not remedy this problem however. This is a different right, and is one that is after the event, and after the rights to continue as a licensed trainer/driver have already been affected.
4. HRNSW also emphasised that it was "not pressing" the final part of condition 6 that "no other licence applications will be considered by HRNSW". This flourish was clearly ultra vires and I would determine it to be so if it was pressed. Although removed from argument before me, it betrays a somewhat pre-emptory mindset by the Licensing Committee in its dealings with Mr Simiana.
5. I accept Mr Simiana's submission that conditions purporting to provide for automatic revocation/withdrawal in the event of an asserted breach of condition, and a requirement that the plaintiff acknowledge and agree to automatic revocation/withdrawal in those circumstances, potentially denies Mr Simiana his entitlement to a hearing before suspension or revocation.
6. I accept the submissions made on behalf of Mr Simiana that conditions 1 and 6 are thus inconsistent with provisions of the Harness Racing Act and Racing Appeals Tribunal Act and the rights available to Mr Simiana under those Acts.
7. I accept the submission made on behalf of Mr Simiana that imposing as a condition of the grant of a licence that the recipient of the licence agrees to forfeit his right to a proper hearing on suspension or withdrawal of a licence, whether before Harness Racing NSW or its Stewards or an Appeals Tribunal, is ultra vires.
8. I reject the argument that the appeal provisions in the Act and Regulations sufficiently deal with the relevant right which is being interfered with by conditions 1 and 6 because those conditions affect his rights to be heard prior to revocation or withdrawal of his licences for an arguable breach of condition.
9. I conclude that even putting to one side the flourish "no other licence applications will be considered by HRNSW", condition 6 is ultra vires and condition 1 is ultra vires to the extent that it provides for "immediate revocation of the licences".
10. The overriding role of condition 6, providing as it does for an automatic licence loss for any breach, particularly when read with the terms of the "Acknowledgment" provides a further ground for quashing the Licensing Committee's decision.

Third Ground: Conditions 2 and 3 amount to effective denial of licences

1. In his affidavit of 13 October 2017, Mr Simiana sets out the problems he would have with complying with conditions 2 and 3. They are a more detailed account of the issues raised in the 4 October 2017 letter. Mr Simiana's position is that it is unlikely that any trainer could comply with the conditions other than one operating a very large sophisticated establishment. In practical terms he argued that it required a registered person to be present and available on the property at all times, including dates such as race meetings when it would be expected that all trainers, drivers and stable hands would be at the race meeting which may well be a long distance away.
2. Mr Simiana argued that because of the impracticability of either Mr Simiana or a registered person, if they were away from the property, successfully returning to the property within one hour of notification by a Steward, to comply with this or lose his licence is effectively denial of a licence.
3. In my view the submissions made by Mr Simiana overstate the difficulties. There is no doubt that circumstances may arise where the Stewards, without notice, may arrive and neither Mr Simiana or a registered authorised representative is present and it may not be possible for Mr Simiana or a registered person to get back to the property within one hour, particularly given the physical location of the property and the difficulties and vagaries of Sydney road traffic and the type of work Mr Simiana does that requires him to travel to locations some distances away. These problems do not mean that a licence which includes those conditions is effectively a denial of a licence. It does however raise questions as to first whether they are manifestly unreasonable, and in the broader context of the statute, whether they are within power as conditions "necessary to ensure the integrity of Harness Racing in New South Wales", or even, in the terms of s 10(1) "necessary or convenient to be done, for or in connection with the exercise of its functions ".
4. The submissions of HRNSW on this ground focused on the separate function of the Tribunal's decision of 18 August 2017, overturning as it did the Licensing Committee's denial of a licence to Mr Simiana on the fit and proper person ground. HRNSW argued that the Tribunal's decision on this s 11 issue did not relieve the Licensing Committee of its obligations under the regulatory regime (AHRR 90) to otherwise be satisfied of all other matters necessary for the proper issue of the licences sought.
5. Whilst there is no doubt about the correctness of that submission, nowhere in its written or oral submissions does HRNSW deal sufficiently with the argument that the practical difficulty in complying with conditions 2 and 3 mean that a licence with such conditions upon it, tied up with the consequences of automatic licence withdrawal if it is breached, creates an untenable set of conditions. An oral submission was made by senior counsel for HRNSW that it would be expected that during "normal business hours" Mr Simiana would have authorised staff present. The problem with this is first, that condition 1 appears to contemplate 24 hour access by the Stewards and second, the tasks of a stable hand or trainer may well not correlate with "normal business hours".
6. In his reply submissions, Mr Simiana emphasised that Mr Prentice's affidavit indicates that the Committee relied upon an assumption of Mr Simiana's guilt of the offences the subject of the stay in formulating the decision to impose the conditions, and that conditions 2 and 3 in particular proceed on the assumption that Mr Simiana is guilty of the offences and so has a predisposition to commit similar offences.
7. Senior counsel for HRNSW emphasised repeatedly in oral submissions the importance of HRNSW's role in ensuring that harness racing, which entails wagering and thus public interest, is clear of prohibited substances and not brought into disrepute. I accept that this is clearly an important matter and that I must also take into account the Licensing Committee's important regulatory role.
8. HRNSW argued that Conditions 2 and 3 do not necessarily assume guilt in respect of the charges found proven by the Stewards, but simply reflect the concern that evidence available to the Licensing Committee shows that on two occasions a prohibited substance was found in horses trained by Mr Simiana. It would be wrong to ignore that evidence, despite there being an issue raised about the certificates.
9. In my view, for Mr Simiana to assert this requirement amounts to a refusal to issue a licence because he "cannot himself be available in an hour's notice", as a general proposition cannot be right. There must be occasions when Mr Simiana is present on the property and probably long periods where this is so. He would likely have a staff member, a trainer or a stable hand also present for long periods. Such people would likely be an authorised person as specified in condition 3.
10. There is however a risk that on occasion, conditions 2 and 3, despite best efforts, simply cannot be met if there is an unexpected unscheduled request. The pre-emptory result of such unavailability entailed in condition 6 raises an issue of manifest unreasonableness, however that does not amount to a refusal to issue a licence given the considerations required to be undertaken by the licensing committee, nor does it amount to a decision inconsistent with the decision pursuant to S 11 made by the Tribunal in August 2017 that Mr Simiana was a fit and proper person for registration.
11. I reject the ground that conditions 2 and 3 amount to a denial of a licence or that the imposition of the conditions are prima facie contrary to the decision of the Tribunal.

Fourth Ground: Unreasonableness

1. HRNSW contended that the conditions are proportionate having regard to the scope and purpose of the regulatory scheme and that the decision to exercise its powers pursuant to the rules to impose conditions on the licences is consistent with the key objective of safe-guarding the integrity of the industry. It also bears a rational connection to what was described by senior counsel for HRNSW as "the ongoing disqualification process".
2. It was submitted that there is an overarching limitation upon judicial review and merits review of an administrative decision and the remaking of that decision is not allowed. This Court's role is strictly supervisory. Review of a decision on the ground legal unreasonableness does not involve any review of the merits, or a substitution of the Court's view as to how the decision should have been made or a remaking of the decision according to the Court's view of the standard of reasonableness. Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 [58] to [65].
3. Senior counsel for HRNSW stressed that the decision of the Licensing Committee was within an area of "decisional freedom" thus within the bounds of legal reasonableness. The decision to grant the licence subject to conditions was clearly an evaluative one, informed by policy, and directed towards the purpose of protecting the integrity of the Harness Racing industry. Given the ongoing proceedings concerning the alleged serious breaches of the rules by Mr Simiana in relation to the use of prohibited substances, and the nature of the prohibited substance in issue, there is a rational connection between that and the conditional licence decision. In those circumstances the decision is an entirely rational exercise of the licensing power conferred upon HRNSW. It is wrong to categorise the decision as lacking in evidence or intelligible justification because the basis for it is borne out by Mr Prentice's affidavit.
4. HRNSW also argued that this review ground was fundamentally undermined by the concession offered on behalf of Mr Simiana that HRNSW should be directed to issue an A Grade Trainer's and Driver's licence to the plaintiff "subject only to appropriate conditions which might include condition 1 excluding the second paragraph of the condition and conditions 4 and 5". Reference to appropriate conditions underscores that first, the review sought by the plaintiff goes beyond the strictly supervisory role of the Court in assessing legal unreasonableness and in effect seeks review of the merits of the decision and second, by singling out conditions 1 (in part), and 4 and 5 as appropriate, there is an ostensible concession that those conditions are not ultra vires or otherwise legally unreasonable.
5. Mr Simiana argued that the attempted justification for the attendance within one hour's notice by reference to the short half-life of the relevant prohibited substance is not borne out by Mr Prentice's evidence, nor is it borne out by the practicalities of necessary testing. It is evident from the Regulations setting out the Stewards' overriding powers to access properties and proceed to test harness racing horses, that there is no assumed requirement for the presence of Mr Simiana or his nominee. Clearly if there is a belief that there has been an administration of a drug, and one that has a short half-life, one would expect that the Stewards would test as soon as possible because to wait for an hour for the attendance of Mr Simiana or his nominee may well result in destruction of that opportunity for testing. Mr Prentice's evidence is to the effect that if there is suspicion of a prohibited substance present, it would be necessary to proceed with testing urgently and the stewards would not wait for an hour for the attendance of Mr Simiana or his nominee.
6. There is specific provision in the AHRR and Local Rules for video recording of any testing or activities of the Stewards. Neither in the evidence of Mr Prentice, nor in the submissions made on behalf of HRNSW, was there identified any persuasive reason why the physical presence of Mr Simiana or his authorised registered is necessary for the functions of HRNSW to be completed, although the guidelines suggest it may be desirable.
7. The Surveillance Devices Act would not prevent recording of the testing process involving people who are aware and consent to their being recorded. To the extent s 8(1)(a) of the Surveillance Devices Act requires the express or implied consent of Mr Simiana to use a video recording device on his property, that consent would be express or implied by the Local Rules 1A and 15(1)(d).
8. In my opinion, conditions that have the effect that the licenses will be automatically forfeited if Mr Simiana or his nominee is not present within one hour's notice, in the circumstances explained by Mr Simiana as to his need, on occasion, to be absent sometimes a long distance from the property, would be considered by many to be unreasonable. However, that is not the test. The question is whether this fits the test of legal unreasonableness. One way to frame the question is to ask whether the outcome of HRNSW's exercise of power was legally unreasonable, bearing in mind the area of "decisional freedom" within which a decision maker has a genuinely free discretion: (Minister for Immigration and Citizenship v Li and Anor (2013) 249 CLR 249 [29] (French CJ), [66] (Hayne, Kiefel and Bell JJ).
9. As outlined by the Full Court in Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at [63]: "…in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the relevant statute: Li at [24] (French CJ), [67] - [67] (Hayne, Keifel and Bell JJ); Stretton at [55] and [62] (Griffiths J). The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision-making: Stretton at [7] and [11] (Allsop CJ). The evaluation is also likely to be fact dependant and to require careful attention to the evidence: Singh at [42].
10. The powers of HRNSW as set out relevantly in [7] of this judgment are very widely expressed but it does not give legal sanction to unfettered discretion.
11. Whilst there were no reasons formally accompanying the licence conditions decision, there is reasoning available in the evidence of Mr Prentice. As stated in Eden [64], where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: (Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [47]).
12. The problem with the decision to impose the interdependent suite of conditions here is that whilst on first analysis there is some attraction in the reasonableness of seeking the presence and or attendance of Mr Simiana or his nominee so they can witness and acknowledge the testing procedure, when the necessary fact-dependent evaluation is carried out, with careful attention to the evidence (as required by Singh at [42]), there are issues such that the justification is not sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: (See Eden [64] - citations omitted).
13. First the selection of one hour is arbitrary given testing would proceed immediately with or without attendance of Mr Simiana or his nominee and second, the effect of condition 6 is immediate revocation of licenses simply because there was not attendance at the premises within one hour after notice, a matter over which, in a number of well-explained circumstances, will be beyond Mr Simiana's control.
14. Although Mr Prentice gave some evidence that the presence of Mr Simiana or his nominee would be desirable in accordance with testing guidelines, AHRR 15A and Local Rule 15(1) make it clear that the Stewards have an unfettered right to enter land, access horses and carry out necessary testing activities without the consent or presence of Mr Simiana or his nominee. Clearly the Steward's wide power to do so is considered to be a necessary part of the exercise of the functions of HRNSW and is enshrined as such. The requirement of physical attendance by the owner/trainer or nominee is not so enshrined in AHRR or the Local Rules or the Act.
15. Senior counsel for HRNSW urged me to accept that the conditions were a proportionate response given the need to safeguard the industry, and against a background of certificates showing breaches in the past and that when I evaluate the decision, bearing in mind the terms, scope and purpose of the relevant statutory power, it does not fall outsider the range of lawful outcomes.
16. I reject that submission. The legal unreasonableness arises not just by the one hour attendance demands of conditions 2 and 3, but the consequences of breach, of even, potentially, minutes of late arrival, in circumstances where Mr Prentice confirmed, given the short half-life of some prohibited substances, proceeding quickly to testing was critical and the Stewards would not wait. Given that reality, it seems to me the conditions are, to adopt some of the descriptive language referred to in Eden [65] "capricious", "irrational", and "lacking in evident or intelligible justification".
17. This ground of review is also made out.

Costs

1. The plaintiff has succeeded. There seems to be no reason why costs should not follow the event. However, if either party wishes to contend for a different order, they should have the opportunity for so doing.

Orders

1. The decision of HRNSW Licensing Committee dated 18 September 2017 imposing conditions upon the plaintiff's training and driving licences be set aside.
2. The Licensing Committee of HRNSW determine the plaintiff's application for training and driving licences forthwith according to law.
3. In respect of the other relief sought in the Summons, the parties are to prepare and provide short minutes of order reflective of this judgment within seven (7) days.
4. The matter is listed for directions at 11.30 am on Tuesday 29 January 2019 (or such other date or time during that week notified by email to my Associate, which is suitable to the parties.)

Endnote

1. Controlling Body includes HRNSW. 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: 23 January 2019