THE RACING PENALTIES APPEAL TRIBUNAL OF WESTERN AUSTRALIA

Associations and clubs - Racing clubs - Horse presented for race with excess drug level - Appeal against decision by Racing Penalties Appeal Tribunal of WA to disqualify trainer for 12 months - Proper construction of r 479 and r 498 of the Rules of Trotting - Procedural fairness and right to legal representation - Limited right to legal representation before the Stewards - Reasonable apprehension of bias - Whether investigative body may proceed to perform deliberative function concerning the same matter - Whether the Tribunal failed to acknowledge existence of extenuating circumstances justifying a reduced penalty

Racing Penalties (Appeals) Act 1990

Western Australian Trotting Association Act 1946

Second Respondents : Mr R J Davies QC & Mr B J H Goetze

Australian Workers Union v Bowen & Ors [No. 2] [1948] HCA 35; (1948) 77 CLR 601

Beale v South Australian Trotting League (Inc) [1963] SASR 209

Century Metals & Mining NL v Yeomans & Anor (1988) 85 ALR 29

Coates v Commissioner for Railways (1960) 78 WN (NSW) 377

Dale v New South Wales Trotting Club Ltd & Ors [1978] 1 NSWLR 551

Dickason v Edwards [1910] HCA 7; (1910) 10 CLR 243

Frivett v Nivison & Ors [1976] 1 NSWLR 312

Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378

Haoucher v The Minister of State for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648

Harper v Racing Penalties Appeal Tribunal of Western Australia & Anor (1995) 12 WAR 337

Hunter Douglas Australia Pty Ltd v Perma Blinds [1970] HCA 63; (1970) 122 CLR 49

Huxham v Trustees & Executive Committee of the Incapacitated & Wounded Sailors' & Soldiers' Association of Queensland [1947] QSR 69

Kioa & Ors v West & Anor [1985] HCA 81; (1985) 159 CLR 550

Laws v Australian Broadcasting Tribunal (1990) 179 CLR 70

Minister for Immigration, Local Government & Ethnic Affairs & Anor v Mok Gek Bouy (1994-5) 127 ALR 223

Muller v Dalgety & Co (1909) 9 CLR 963

R v Wadley Ex Parte Burton [1976] Qd R 286

Stollery v The Greyhound Racing Control Board [1972] HCA 53; (1972) 128 CLR 509

Troja v Curran & Ors (1989) 30 IR 129

1 WALLWORK J: I agree with the reasons for judgment of Owen J. There is nothing I wish to add.

2 OWEN J: This is the return of an order nisi for a writ of certiorari to quash decisions made by the first respondent ("the Tribunal") dismissing an appeal against a decision made by the second respondent ("the Stewards") that the applicant was guilty of an offence against the Rules of Trotting ("the Rules") and upholding the penalty imposed by the Stewards for the offence.

3 The Tribunal gave notice that it would abide the decision of the Court and did not appear at the hearing. The Stewards were represented and were, in effect, the contradictor.

4 On 27 May 1999 I made the order nisi in this matter. I delivered written reasons which are published as Stampalia v The Racing Penalties Appeals Tribunal of Western Australia & Ors [1999] WASC 7 . It will be convenient to repeat the background from those reasons:

"3 The applicant is a licensed trainer under the Rules of Trotting. She is the trainer and a part owner of the horse called "Presley Strikes". On 16 February 1998 the applicant took the horse to Gloucester Park where it had been entered in a race. A blood sample was taken from the horse prior to the race. The horse competed and was placed second. In a letter dated 18 February 1998 the applicant was informed by the Chairman of Stewards of the Western Australian Trotting Association that the Analyst's report indicated the level of total carbon dioxide ("TCO2") found in the sample was 36.5 millimoles per litre of plasma. Rule 498(b) of the Rules of Trotting prescribes the permissible upper limit of TCO2 as 35.0 millimoles per litre. In the letter the applicant was advised that the Stewards intended to hold an inquiry into the Analyst's report.

4 The inquiry commenced on 23 February and continued on 5 May 1998. It was conducted by the four persons named as second respondents. The initial inquiry was terminated after one of the Stewards (Mr Rolfe) left the industry due to ill health. A new inquiry was commenced on 9 June 1998 with the transcript of the initial inquiry being made an exhibit. It was conducted by the three remaining second respondents. There were hearing sessions on five separate days up to and including 12 October 1998.

5 Prior to the commencement of the initial inquiry on 23 February 1998 the applicant has sought and obtained legal advice. However, the Stewards declined to permit the applicant to have legal representation at the hearing. The applicant's solicitor made written and oral representations to the Stewards concerning legal representation but to no avail. The solicitor made himself available for some or all of the days of the inquiry but, at least until 31 August 1998, was not permitted into the inquiry room. From time to time an adjournment was granted to allow the applicant to go outside and take advice on issues that had arisen. On 31 August, 24 September and some (but not all) of 12 October 1998 the applicant's solicitor was present and was permitted to cross-examine some witnesses.

6 On 12 October 1998 the Stewards formally charged the applicant under r 497(1), namely that as the trainer of Presley Strikes the applicant presented the horse to race where the pre-race blood sample was found on analysis to contain a TCO2 level in excess of the allowed level under r 498(b).

7 The inquiry resumed on 27 October 1998. It was conducted by Messrs Delaney, Sullivan and Denney (being three of the second respondents). It was concluded on 3 November 1998. The applicant's solicitor attended at the inquiry venue on those days but was not permitted to participate. On 3 November 1998 the Stewards found the applicant guilty as charged. They disqualified her for 12 months. The applicant immediately appealed to the first respondent and, on 17 November 1998, obtained a stay of the penalty. On 8 April 1998 the first respondent handed down its decision dismissing the appeal. One consequence arising from the first respondent's decision was that the applicant commenced to serve the period of disqualification."

5 The application is, of course, to quash the decision of the Tribunal dismissing the applicant's appeal to it against the decision of the Stewards to convict and upholding the penalty that the Stewards had imposed. However, in some instances it will be convenient to examine the decision itself without differentiating between the reasoning of the Tribunal and of the Stewards.

6 I think the grounds on which the writ is sought can be summarised as follows.

7 First, the applicant says the decision was arrived at on a wrong construction of r 497 and r 498 of the Rules, which construction resulted in her wrongly being deprived of the defence under r 497 that she took proper precautions to prevent the administration of a drug. This is really a question of the proper construction of the Rules.

8 Secondly, the applicant says she was denied procedural fairness by not being permitted proper legal representation and not being allowed to have her expert witnesses present when the experts called by the Stewards testified.

9 Thirdly, there is a complaint of a reasonable apprehension of bias because of a remark made by Mr Rolfe to the applicant's mother after he had retired from the Inquiry.

10 Finally, it is said that in setting the penalty the Stewards should have taken into account extenuating circumstances which would have resulted in a term of disqualification less than 12 months.

11 The applicant sought to convince the Stewards that the administration of a banned substance was not the proper explanation for the elevated TCO2 level. It was more likely to have been caused by a combination of factors such as the float transportation and high temperature on the day, the high, naturally occurring residual or resting TCO2 level experienced by the horse and a possible minor reaction to a feed additive called "Enzactiv Green" which had admittedly been given to the animal. Evidence was produced by the applicant on those issues.

12 Before proceeding, I need to set out the text of the two relevant rules from the Rules:

"479(1) When any horse which has been presented to race is found to have had administered to it a drug:

(a) any person who administered the drug to the horse;

(2) It shall be a defence to a charge under sub-clause (1) for the trainer ... to prove that he took reasonable and proper precautions to prevent the administration of the drug.

(b) where a sample from a horse is found to contain a substance described in this Rule in excess of maximum quantity or ratio appearing opposite the substance, then the horse shall be deemed to have had administered to it a drug or drug capable of producing that substance

13 I should add that r 1 of the Rules defines the word "drug" as, relevantly:

"'Drug' in relation to a horse entered for a race means -

(a) any substance capable of affecting ... the physiological buffering capacity of the body of the horse;

14 When the charge was formally laid the Stewards elected to proceed against the applicant with the offence of presenting for racing a horse that had been found to have had administered to it a drug. It was a charge laid under r 479(1)(b) and the horse was "found to have had administered to it a drug" by reason of the deeming provision in r 498. The applicant could have been, but was not, charged with administering a drug to the horse under r 479(1)(a). One consequence of this is that the defence under r 479(2) was available to the applicant if she could establish it. But it would not have been available had she been charged with actually administering a drug.

15 The applicant produced evidence of the security precautions taken by her at the stables. The Stewards made a finding that Enzactiv Green was a substance capable of elevating TCO2 level. They considered the evidence presented in support of the contention that a combination of biological and environmental factors could have elevated the levels but rejected it. They pronounced themselves satisfied as to the correctness of the procedures followed in testing the blood sample. The essential findings and conclusion of the Stewards are as follows:

"You put forward evidence that your stable security was excellent. We have no reason to doubt that such is the case. The only reasonable conclusion that the Stewards could reach therefore is that the administration of the drug to elevate "Presley Strikes" level above the allowable level was either made by you or with your knowledge.

We could not accept your claim that you had not administered any drug or drugs to 'Presley Strikes' given that the substance Enzactiv Green, which you admitted administering contains a drug in accordance with the Rules of Trotting. Therefore your defence that you have taken reasonable and proper precautions to prevent the administration of the drug must fail.

After taking all these matters into account, the Stewards are unanimous in finding you guilty as charged."

16 When the matter came before the Tribunal these findings were put squarely in issue. In the lead reasons for determination (with which the Chairman agreed) the Member said:

"...in my view, a defence under Rule 497(2) remains open even if the charge has been brought under the deeming provision of Rule 498(b).

I interpret the Stewards reasons for rejection of the defence advanced under Rule 479(2) to be that they did not accept the contentions of the [applicant] that the high TCO2 level recorded in the pre-race swab of Presley Strikes was caused by a combination of biological and environmental factors rather than a deliberate administration of any kind. In my view it was clearly open and reasonable for the Stewards to make those findings on the evidence. Having made those findings it was open to the Stewards to reject the defence advanced pursuant to Rule 479(2)."

17 The label on the Enzactiv Green package contains the following note: "Enzactiv-Green exerts a mild diuretic action and neutralising effect on the acidic metabolites in the blood stream". As I understand it the ingredient of Enzactiv-Green (whatever it is) that has the neutralising effect on the metabolites is an alkalising agent and therefore is a "drug" in accordance with the extract from the definition of that term which I have set out. This, I think, explains the finding of the Stewards that "Enzactiv Green, which [the applicant] admitted administering contains a drug in accordance with the Rules of Trotting". There is no need for this Court to examine the evidence as to the effect of environmental factors on the TCO2 levels in horses or of the precise effect or constituent elements or ingredients of the substance called Enzactiv Green. The findings of the Stewards on those matters (as confirmed by the Tribunal) are not, nor could they properly be, the subject of attack in these proceedings. It can be assumed for the purposes of this application that the increased TCO2 levels which presented in the samples taken from the horse on 16 February 1998 came about because of the administration of Enzactiv Green. The question is what flows from those findings in accordance with the scheme set out in the Rules.

18 Counsel for the applicant submitted that the technical evidence which was led at the hearing and which related to environmental factors and the like was relevant only to the question whether a charge should be laid and under r 497(1)(a). Once the Stewards had decided to lay the charge under r 497(1)(b) all of that evidence was irrelevant. This is because the Stewards expressly relied on the deeming provision in r 498(b). Once it was found the horse had a TCO2 level in excess of the maximum prescribed quantity it was deemed to have had administered to it a drug. It was, to use the words which counsel employed throughout the hearing, a fictional drug the exact identity of which was quite irrelevant to the proceedings. It can be put in a slightly different way. The applicant was not charged with the actual administration of a drug to the horse. Had that been the case the identity of the substance (or the exact cause of the increased levels) would have been relevant because it would tend to show whether to not the applicant had been responsible for the actual administration of the substance. But once the Stewards decided to charge under r 497(1)(b) it was not in issue that a drug (albeit a fictional one) had been administered to the horse and the sole remaining area of controversy was whether she had made out the defence under r 497(2). Counsel submitted that when considering whether the applicant had made out her defence the Stewards should have had regard only to the evidence before them that was relevant to the issue whether the applicant had taken reasonable and proper precautions to prevent the administration of the (fictional) drug. Having found that the applicant's stable security was excellent and having heard uncontroverted evidence of the precautions taken by the applicant on race day they should have found the defence to have been made out.

19 In my view the concentration on the idea that it was a "fictional drug" is misplaced. The fact is that something caused the horse to return a positive result from the sample that was taken. It is true that once reliance is placed on r 497(1)(b) it is no longer essential for the identity of the substance or of the person who actually administered it to be established before a charge could be sustained. But this does not mean that evidence on those issues is irrelevant in the proceedings. It could conceivably be relevant to the defence under r 497(2). I will repeat the terms of the rule:

"It shall be a defence to a charge under [r 497(1)(b)] for the trainer ... to prove that he took reasonable and proper precautions to prevent the administration of the drug."

20 There is, in my view, no warrant for reading down the range of factors that might be relevant to the making out of such a defence. It is, I think, implicit in the way in which the argument was advanced that the focus of attention in such an inquiry should be limited to matters such as the use of security devices, surveillance, restricting access by humans to the animal and the like. I do not think that is the case. Each case will depend on its own facts and it would be inappropriate to lay down a list of the matters that could be taken into account. They will be governed by the concept of relevance. However, I can see no reason why, in a proper case, evidence as to what actually happened to the horse, the peculiar metabolic reactions of the animal and so on might not be relevant as a buttress to the case that reasonable and proper precautions were taken to prevent the administration of a drug.

21 In the circumstances of this case there was, in my view, a particular relevance in the evidence. The applicant admitted having administered a substance, namely Enzactiv Green, to the horse. Scientific evidence, which the Stewards accepted, was to the effect that Enzactiv Green contained something that could have the effect elevating the TCO2 levels. The finding of the Stewards was not that Enzactiv Green was a "drug" but that it "contains a drug in accordance with the Rules of Trotting". The question then is what were the reasonable and proper precautions that the applicant took to ensure that that impugned ingredient was not administered to the horse? This raises a plethora of issues that are clearly relevant to the question of penalty, such as the extent to which she informed herself about the constitution and possible consequences of using the substance. But they are by no means irrelevant to the defence that is available to the trainer under r 497(2).

22 In dealing with this matter the Tribunal first rejected the applicant's contention that r 498(b) should be construed as a rebuttable presumption. I do not understand that line to have been pursued in this Court. In the lead reasons (par 1.12) the Member acknowledged that a question arose as to how the Stewards should approach the defence under r 497(2) where the alleged breach was made out by reference to the deeming provision in r 498. The Member went on, in par 2.10, as follows:

"I interpret the Stewards reasons for rejecting the defence advanced under r 497(2) to be that they did not accept the contentions of the [applicant] that the high TCO2 level recorded in the pre-race swab of [the horse] was caused by a combination of biological and environmental factors rather than a deliberate administration of any kind. In my view it was clearly open and reasonable for the Stewards to make those findings on the evidence. Having made those findings it was open to the Stewards to reject the defence ... ."

23 In par 3.3 and par 3.4 there are further comments that outline the approach which the Member took:

"3.3 The administration of a drug is deemed by virtue of r 498, ... . In my view the [Stewards] were compelled to find there was a deemed administration of a drug if they accepted the evidence of TCO2 levels analysed to have been found in the pre-race swab taken from [the horse]. ...

3.4 In the [applicant's] outline of submissions the [applicant] refers to natural factors that could have elevated [the horse's] TCO2 level other than an administration of any kind. In my view those factors were relevant to the issue of whether the [applicant] had taken reasonable precautions to prevent an administration of a drug. The Stewards were satisfied, despite the evidence, that there was an administration that led to the elevation of the TCO2 level of [the horse]."

24 I think it is fair to say that these comments accord with the approach that I have already outlined. In my view the Member correctly appreciated the relevance of the evidence and the proper construction of the rules. I am not satisfied that an error has been demonstrated such as would justify intervention by this Court. Accordingly, ground 1 of the grounds on which the application for certiorari is based has not been made out.

25 The second ground, which alleges a failure by the Stewards to accord procedural fairness to the applicant, is effectively in two parts. In ground 2(a) the complaint is a general one based, essentially, on the proposition that the applicant was ill-equipped to conduct the case made against her. The second part is based on the proposition that the applicant should have been afforded unrestricted access to legal representation throughout the inquiry. It will be convenient to consider the two parts together, although with an initial focus on the issue of legal representation.

26 I do not think I need to set out the factual detail as to the extent to which the applicant was permitted and denied legal representation. It is adequately summarised in par 5 of the extract from my reasons on the order nisi application and in the five numbered paragraphs in the particulars to ground 2(b) of the order nisi. In addition, par 12 to par 43 and par 46 to par 47 of the applicant's affidavit sworn 23 April 1999 set out the process, and her attitude and reaction to what occurred in considerable detail. All of that material has to be taken into account.

27 It is not in dispute that the applicant was engaged full time in the trotting industry and, to that extent, her livelihood was at stake. The Stewards had the power to deprive the applicant of her livelihood for a period and in fact they exercised it. Counsel for the applicant submitted that in those circumstances she had an unqualified right to legal representation. He relied on cases such as R v Board of Appeal; Ex parte Kay [1916] HCA 63; (1916) 22 CLR 183, Pett v Greyhound Racing Association Ltd [1969] 1 QB 125 and Kruger v Pharmacy Board of South Australia (1979) 22 SASR 339. I think it is unnecessary to go to those cases in detail. Where, as here, a domestic tribunal derives its authority from statute, the issue is to be determined in the light of the particular statutory framework.

28 There is reposed in the Stewards by virtue of the Western Australian Trotting Association Act 1946 and the Rules of Trotting made under it the very broadest powers to control the industry, including the conduct of inquiries. The Rules of Trotting are made by the Committee of the Western Australian Trotting Association under bylaws that are a schedule to the Act. Rule 11 provides that the Stewards "shall have the whole control of matters related to racing ... and ensure that these rules are observed and enforced". They have power to "... inquire into and adjudicate upon the conduct ... of trainers ...". They can "determine in such manner as they think fit any matter arising in connection with a meeting for which no provision is made in these Rules ...". They are required to record in writing or other approved manner evidence taken at an inquiry and they may publish their decisions. I will set out in full four other rules that I think are of particular relevance:

"Stewards May Enquire Into Any Incident At Trial Or Training Track

23. The Stewards may enquire into any incident arising at any organised trial or registered training track and take appropriate action against any person found guilty of any breach of the Rules or breach of Regulations laid down for the conduct of such trial or the use of such training track and may also take any action deemed necessary in respect of any horse in accordance with the Rules.

24. The Stewards may of their own volition and at their entire discretion or at the direction of a Controlling Body institute and pursue to conclusion any inquiry for the purpose of ascertaining whether any breach of the Rules has occurred or whether any disqualified or undesirable person has any connection with or influence upon harness racing and/or any licensed trainer or driver of a nature capable of proving detrimental to harness racing and if such connection or influence is established to their satisfaction the Stewards may fine, suspend or disqualify any person and/or licensed trainer or driver involved or recommend to the Controlling Body that such person be warned off.

25. The decisions of the Stewards shall, subject to rights of appeal to the Racing Penalties Appeal Tribunal and the powers of the Controlling Body, be final.

38. (a) In addition to the powers conferred by Rules 11 and 36 the Controlling Body or the Chairman of Stewards, or any Steward or Stewards, or any other person or persons appointed by the Controlling Body or the Chairman of Stewards, shall have power at any time to hold an inquiry into and adjudicate or report upon any matter that the Controlling Body or Chairman of Stewards considers it advisable to investigate.

(b) At any such inquiry or investigation by the Stewards (or by any other person or persons appointed as aforesaid) the Chairman of Stewards or the appointed nominee shall be in complete control of the inquiry.

(c) The Stewards shall have the right to adjourn any inquiry from time to time.

(d) The evidence at any such inquiry or investigation or any adjournment thereof shall be committed to writing or recorded in such other manner as the Controlling Body shall think fit.

(e) The evidence taken upon any inquiry or investigation and the decision of the Stewards, both certified by the Chairman as correct, shall forthwith, upon the giving of such decision, be forwarded to the Controlling Body."

29 The point is this. The statutory framework is entirely silent as to the right to legal representation. Indeed, the Rules do not even enshrine a right of personal attendance. I should not be taken as suggesting that denial of a right of personal attendance would be in accord with the rules of procedural fairness but we are here dealing with a slightly different point, namely whether there is an unqualified right to legal representation. In R v City of Melbourne; Ex parte Whyte [1949] VicLawRp 48; [1949] VLR 257 O'Bryan J considered Ex parte Kay and another English case and said, at 268:

"It will be observed in both cases that the statute which gave a right to appeal to a tribunal was interpreted as giving to the appellant the right to appear before it and it is as ancillary to that right that it was held that the appellant was entitled to be represented before the tribunal by such agent as he chose.

Under the by-law which I have to consider I can find no such right in a licensee whose licence is brought up for consideration under clause 23, to appear in person before the council or before its committee, as the case may be. I am, therefore, of the opinion that, provided the committee proceeds in a judicial manner to determine the relevant matters under that by-law and gives the licensee a fair and adequate opportunity of meeting the case made against him, it is not bound either to hear him in person or any other agent. Of course, it may do so if it chooses, but it is not bound to do so."

30 In each case the task is to balance two conflicting policies. One is to avoid the danger that a person likely to be seriously affected by the decision of a Tribunal will receive less than justice if he or she is denied the opportunity to have the case presented by someone skilled and experienced in such an endeavour. The other is that if one party is permitted legal representation, the other parties, and possibly the Tribunal itself may have to so the same. When this happens there is always the danger of the proceedings becoming protracted, more formal, technical and costly.

31 In my view the answer to the problem in this case lies in adopting the approach advocated in Ex parte Whyte. There is no unqualified right to legal representation before the Stewards. However, there is absolutely no doubt that the Stewards are bound to afford procedural fairness to a person whose conduct they are investigating. It may well be that in a particular case a right to legal representation may be an essential ingredient of the right to procedural fairness because of the circumstances of the case, the nature of the inquiry the subject matter being dealt with and so forth: Cains v Jenkins (1979) 28 ALR 219 at 229 - 30.

32 For sake of completeness I should add that there is another relevant piece of legislation. It is the Racing Penalties (Appeals) Act 1990. It governs the constitution and powers of the Tribunal and has nothing to say about the activities of the Stewards, other than to provide for appeals against their decisions. The Racing Penalties (Appeals) Act requires the Tribunal to act according to equity, good conscience and the substantial merits of the case and to observe the principles of natural justice. The Racing Penalties (Appeals) Regulations 1991 made under the Act, and in particular reg 5, carry the implicit recognition of a right to legal representation. In that respect the operations of the Tribunal may be quite different to those of the Stewards.

33 The applicant had obtained legal advice before the inquiry commenced. At the outset she sought permission to have legal representation. It was denied. On 10 March 1998 the applicant's solicitor wrote to the Stewards setting out the case for representation. On both 5 May and 11 August 1998 the applicant's solicitor appeared before the Stewards and made submissions in support of the application that she be represented. The Stewards denied the request. The applicant appealed against that ruling to the Tribunal. On 27 August 1998 the Tribunal allowed the appeal and made this order:

"The [applicant] be permitted to be represented at the resumption of the adjourned inquiry and further resumptions, specifically for the purposes of counsel being permitted to question any witnesses who may properly be categorised as expert witnesses.

For the sake of clarity, I add that this order does not extend to permitting counsel to question any lay witness or to make oral submissions by way of closing address."

34 In his reasons the Member closely examined the technical evidence that had already been called and that which was proposed to be given on the resumption of the inquiry. He expressed his conclusion in this way:

"The matter under consideration before the Stewards was serious. A conviction for any offence against Rule 497 would render the applicant liable to a penalty of 12 months disqualification.

The issues of fact were of a very complex nature. Once it was accepted (as I do accept) that the technical evidence was relevant, there can be no argument that it was complex. The question then remains whether the applicant was capable of representing herself. If not, then natural justice would require that she be permitted to have representation.

The Stewards decided in this case that the applicant was quite capable of conducting herself competently in asking questions. With respect to the Stewards opinion, I cannot see how that is so. She completed Year 10 at High School and has worked in the trotting industry since then. She is now 35 years of age. She has no other education. To expect her to properly cross-examine professional people including veterinary doctors and a professor is to expect the impossible. To the extent that the Stewards decided otherwise, their decision was incorrect. No reasonable Stewards could have come to that conclusion if they had taken all of this into account. In my view, what mislead [sic] the Stewards was their view, expressed at T101-102 of the transcript, to the effect that arguments directed towards attacking the technical evidence were irrelevant. Had they not taken that view, then it is likely that legal representation would have been allowed."

35 There is no dispute that after the Tribunal had made this ruling all of the expert witnesses who had previously given evidence were recalled. Accordingly, by the time the record on which the Stewards made their decision was completed the solicitor for the applicant had cross-examined all of the expert witnesses or had been afforded the opportunity to do so. It is also not in dispute that from time to time the applicant's solicitor was present at the inquiry venue (although not in the room) and that from time to time the applicant was granted an adjournment to take advice from him. I do not understand it to be said that the applicant was denied such an adjournment at any critical point. The applicant put in detailed written closing submissions (prepared by or with the assistance of her solicitor) and the matter was adjourned again at her request to allow time to consider them.

36 It is not entirely clear whether the August appeal to the Tribunal against the decision of the Stewards to deny legal representation was limited to issues of a technical nature or whether it went to the whole of the inquiry. The Tribunal made its decision and it is one that is limited to technical or expert issues. There is no suggestion that the Stewards flouted the August ruling in any way and the inquiry continued, and was completed, in accordance with it. I note that the applicant made no attempt to seek review of the August decision. To the extent that she now seeks to have the April Tribunal ruling quashed on grounds that go beyond legal representation on technical issues, discretionary considerations could arise. However, in light of my conclusions on the merits of the challenge, I do not need to express a concluded view on that point.

37 I have no doubt that the technical evidence was complex. The Tribunal appreciated this and, with respect, I think the August decision permitting legal representation limited to questioning of expert witnesses was correct. However, once the technical issues were out of the way, so to speak, the inquiry took on quite a different tenor. The record does not disclose that there were any difficult or complex factual or legal issues that arose in relation to the way the horse was prepared for the race, stable security and so on. I think it would be reasonable to assume that these are all matters that persons conversant with the trotting industry, regardless of the level of formal education, could adequately prepare and present. The applicant was not denied the opportunity to take legal advice from time to time or to present written submissions that had been prepared with legal assistance. What she was prevented from doing was having her solicitor present in the inquiry room during the whole of the proceedings, ask questions of non-expert witnesses and make oral presentations in closing and on penalty.

38 There is one discrete aspect of the challenge on procedural fairness grounds that, I think, deserves particular comment. The Stewards declined to allow the applicant's expert witnesses to remain in the room while the experts called by the Stewards were giving evidence. However, the latter experts were permitted to remain while the applicant's witnesses were testifying. As I understand it from the way that the first particular to ground 2(a) is phrased the main area of complaint lies in the proceedings on 5 May, 9 June and 11 August.

39 In my opinion this was an inappropriate course to adopt. It renders the proceedings vulnerable to a perception that those who propound one side of a technical debate are being afforded an advantage that those propounding the other side are not. It is, in my view, a dangerous way of proceeding and ought to be avoided. However, in the circumstances of this case I do not think it would justify intervention by the Court. The record of the proceedings on 5 May, 9 June and 11 August, and therefore the tenor and content of the evidence of the various experts who had proffered opinions, was available to the parties when the whole question of the technical evidence was re-visited following the August Tribunal ruling. In the circumstances, therefore, I do not think there is any material prejudice flowing to the applicant from the way in which the Stewards acted in this respect.

40 It comes, then, to the balancing of policies to which I have previously referred. The Stewards, in accordance with the August Tribunal ruling, permitted legal representation to a limited extent. The inquiry proceeded over nine separate days between 23 February and 3 November 1998. The applicant was not denied access to legal advice and was granted adjournments from time to time to enable her to do so. She was not restricted in the written submissions that she could tender. On the most complex and, possibly, critical issue, she was allowed legal representation. I have considered very carefully the way in which the Tribunal approached the third and fourth grounds of the appeal to it in its April ruling, which effectively encompass the procedural fairness challenge. I cannot discern an error in the way the Tribunal dealt with the Stewards conduct in this respect.

41 In my view, the procedural fairness ground has not been made out. I would add a note of caution. Each case must depend on its own facts. What has been held here to be sufficient compliance with the obligation to afford procedural fairness might not be adequate in another case. A body such as the Stewards ought always to be cognisant of the fact that the consequences of the decisions they make are serious and can affect a person's livelihood. They ought not to assume that legal representation is a privilege to be afforded only in rare and exceptional cases.

42 The inquiry commenced on 23 February and continued on 5 May 1998. It was conducted by the four persons named as second respondents. The initial inquiry was terminated after one of the Stewards (Mr Rolfe) left the industry due to ill health. A new inquiry was commenced on 9 June 1998 with the transcript of the initial inquiry being made an exhibit. It was conducted by the three remaining second respondents. There were hearing sessions on five separate days up to and including 12 October 1998. On that day the Stewards formally charged the applicant. The inquiry resumed on 27 October 1998. It was conducted by Messrs Delaney, Sullivan and Denney (being three of the second respondents). It was adjourned to 3 November 1998, on which day the Stewards announced that the charge had been established and imposed the penalty.

43 Once again the challenge on the grounds of reasonable apprehension of bias is in two parts. The first relates to comments made by Rolfe to the applicant's mother after he retired from the inquiry. The second depends on the assertion that once the Stewards had decided to charge the applicant they should not have proceeded formally to deal with the charge and a different body should have been empanelled to do so.

44 In an affidavit sworn 4 June 1999 Judith Ann Stampalia (the applicant's mother) says that on 27 October 1998 she telephoned Rolfe to ask him to give evidence at the inquiry. The statement alleged to have been made by Rolfe and from which this challenge arises is set out in par 7 of the affidavit:

"I have got nothing against [the applicant]. I always got along with [her] when I worked as a Steward but I believe that [the applicant] was unprofessional in giving Enzactiv Green and having a horse over the limit. If you can beat them good luck - off the record that is."

45 It is to be remembered that Rolfe was involved in the first two days of the hearing and there is no suggestion that he had any contact with the matter thereafter. However, the transcript of the proceedings of the first two days was made an exhibit in the resumed or renewed inquiry.

46 Counsel for the applicant indicated that there is no certainty on the authorities as to whether, in the case of a consensual or domestic tribunal, the test to be applied is of actual bias or of a reasonable apprehension of bias. I do not think this is an appropriate case in which to decide the issue. For the purposes of this application I will presume that the reasonable apprehension of bias test applies. The nature of the "reasonable apprehension" test is not in dispute. The principle was explained by Mason J in Re JRL, Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 351-352 as follows:

"... a judge should disqualify himself from hearing, or continuing to hear, the matter if the parties or the public entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the issues: Reg v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 at 258 - 263; Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293 - 294. This principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done".

47 The underlying principle is the same when the Court is called on to quash a decision that has already been made. If (as I am assuming for the purposes of this application) the "reasonable apprehension" test applies to a hybrid administrative body such as this, the references to a judicial officer would apply equally to the members of the body.

48 There is authority for the proposition that if only one member of a Tribunal is biased any order made by the Tribunal can be set aside: Builders Registration Board of Queensland v Rauber [1983] 57 ALJR 376 at 385. Counsel for the applicant submitted that where a member of the body is disqualified due to bias the proceedings may be vitiated even if the person withdraws before the hearing ends or the process of judgment begins. Counsel cited two cases in support of that proposition, namely, Pettitt v The South Australian Tattersall's Club [1930] SASR 258 and Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 . I confess that in my reading of those cases I struggled to find support for the proposition advanced. It must also be remembered that Webb arose from a jury trial in the criminal jurisdiction. However, if the proposition is that the aura of bias resulting from the conduct of one member will not necessarily be removed by that member absenting himself or herself from the inquiry before completion I think it can be accepted. Much will depend on the particular circumstances, including the nature of the inquiry, the degree of apprehended bias, the time for which the impugned member participated and so on.

49 In my opinion the complaints about the conduct of Rolfe are without substance. I will assume the accuracy of the statement attributed to him. There were three distinct aspects to these proceedings. First, the initial inquiry, at which Rolfe participated, and which ran over two days. Secondly, the separate inquiry, at which Rolfe did not participate, and which ran over five days from 9 June to 12 October 1998. Finally, the hearing of the charge, which did not involve Rolfe, and which was conducted on 27 October and 3 November 1998. As I have already said, there is no evidence that Rolfe had any contact with the matter or with the Stewards concerning it after 5 May 1998. The statement attributed to him is relatively bland: that the applicant was "unprofessional" in having a horse that was over the limit. The word "unprofessional" is equivocal. It may mean no more than falling short of the standards that he (Rolfe) expected of a person with the position and experience of the applicant. It may not necessarily mean a fixed view as to the commission of a racing offence. That is consistent with the closing phrase: "if you can beat them good luck".

50 In the circumstances I have not been persuaded that a fair-minded observer might reasonably suspect or apprehend that Rolfe was biased or, if he was, that the whole process of the inquiry, at which he did not participate, from 9 June 1998 to its conclusion, was infected by his conduct. Ground 3, at least in relation to the first particular, has not been made out.

51 The next issue is whether the Stewards, having decided to charge the applicant, should have disqualified themselves from hearing the charge and should have called for a differently constituted body to do so. The underlying principle is the same as that already outlined. It is reflected in the comment of Mason CJ and McHugh J in Webb at 47 that the test is whether a fair-minded person might reasonably apprehend or suspect that the tribunal has or might prejudge the case.

52 The Stewards are what counsel for the applicant referred to a "hybrid body", that is, having the hallmarks both of a domestic and consensual tribunal and yet deriving some of its powers from a statutory base. The Court was not referred to any authority for the proposition that where such a body exercises disciplinary powers the investigative and deliberative functions must always be separated. The cases are replete with references to problems created when one person or entity is both accuser and judge and I would not wish to be seen to be underestimating those difficulties. However, the powers and functions of the Stewards are fundamentally to be exercised in accordance with the Rules of Trotting. The framework is, as I have already said, extremely broad and there is no doubt that the course adopted in this case was not outside the Rules. The question still remains, though, whether the appearance of fairness in the conduct of the hearing of the charge was violated so as to constitute a breach of the rules of natural justice. That question cannot be answered simply by saying the Stewards who conducted the initial inquiries and who decided to lay the charge were, automatically and without more, disqualified from hearing the charge. It requires attention to what was said and done during the inquiry.

53 I have been through the entirety of the transcript of the Stewards' inquiry. The first section covers 678 to 1160 of the Application Books, 1161 and 1162 cover the preferring of the charge on 12 October 1998, and 1163 to 1203 are concerned with the hearing of the charge, the decision and the imposition of the penalty. It was a tedious task but one that, due to the tenor of the challenge made by the applicant, was necessary. It highlights the problem that an appellate or reviewing authority faces in cases such as this. To resort to the vernacular, there is nothing like being there. It is so easy to lose the real flavour of what was said and done at a hearing simply by reference to a transcript. The fundamental precept that a trier of fact has a real advantage in seeing and hearing witnesses and assessing the mood of the moment is (despite some recent pronouncements to the contrary) far from illusory.

54 Counsel for the applicant put the matter in this way. On 12 October 1998 the Stewards told the applicant they intended to charge her "after a very careful consideration of all the evidence". The transcript of the proceedings up to that point occupied 399 pages and through to the finality of the proceedings the transcript only occupies another 42 pages. The hearing was largely taken up by expert evidence, which was critical to the decision. However, no expert testimony was taken after the charge was laid and the Stewards indicated that they did not intend to take further evidence "at this stage of the inquiry". Counsel summarised the position as follows:

"In these circumstances the objective observer would conclude that the Stewards had reached their views on findings on material issues as at 12 October 1998 and this impression would be reinforced by the Stewards' refusal to permit the applicant's legal adviser to represent her at any time following the charge having been laid."

55 In relation to the last point, there is little that can be added to what I have already said about the issue of legal representation. It must also be borne in mind that the Stewards were then acting in accordance with the August ruling of the Tribunal that had limited the right to representation to technical evidence.

56 The early part of the hearing on 27 October was taken up with exchanges about the applicant's request that Rolfe be called to give evidence. I think the issue to which the proposed evidence would have gone was the procedure adopted in taking and testing the sample. That matter was resolved. The Chairman then asked (at Application Book 1175): "Do you have any further evidence to put forward?". The applicant responded: "No." She was then asked: "Do you have any data in relation to 'Catapult' at all?" The applicant was granted a short adjournment to consult her solicitor on that issue. When she returned there was an exchange about material relevant to that issue (the precise detail of which need not trouble us now) and it was resolved. After some further exchanges the Chairman said (at 1178): "Is there anything further you want to put forward." At this stage the applicant tendered the written submissions. The matter was then adjourned to 3 November 1998.

57 On the resumption on 3 November 1998 the Chairman read a letter that had been received in the intervening period from the applicant's solicitor. It made some comments about the 'Catapult' matter and indicated that the applicant could provide further details but saw no point in doing so unless the Stewards considered it a relevant issue. It then made complaints about the belligerent attitude of the Chairman and suggested bias. The solicitor said:

"In the event that the Stewards intend to further question our client and any further witnesses which are to be called to the inquiry, we request that [the solicitor] be allowed to represent [the applicant]."

58 The Stewards responded to the letter in these terms:

"The Stewards do not intend questioning any further witness at this stage of the inquiry. Your client was given ample opportunity to present evidence on several occasions of the necessity of this and she failed to do so."

59 I do not understand this response to be limited to the period which ended on 12 October 1998. I think it is intended to include the proceedings on 27 October. In other words, the Stewards took the view that, both before and after the charge was laid, the applicant had been given the opportunity to present evidence. This is borne out by a further exchange (Application Book 1190) between the Chairman and the applicant on 27 October:

"The Stewards have given you opportunity to present evidence. There comes a point despite requests for the evidence to be forthcoming and its not forthcoming, the Stewards have to say 'enough is enough'.

And I quote from a Harness Racing Appeals Tribunal of New South Wales a Determination of 3 March 1993 and its in the case of Caine.

'It must be remembered that an inquiry at the Stewards level is intended to be expeditious and decisive, without being impaired by delays or protracted proceedings.'

Now in quoting that the Stewards are extremely mindful of the principles of natural justice. And in our mind we give you an opportunity to present witnesses and advise you as to what we seek from those witnesses, and that evidence is not forthcoming, you've been given the opportunity to present it."

60 I do think the comment that the Stewards did not intend to question further witnesses has to be seen in that light. It does not mean that at the commencement of the hearing on 27 October 1998 the applicant was deprived on the right to bring further evidence. Neither that statement nor the comment that the decision to charge the applicant was made after a "after a very careful consideration of all the evidence" indicated that the Stewards had prejudged the matter in the relevant sense.

61 The question then is whether anything said by the Stewards during the course of the investigation would lead the reasonable observer to conclude that after 12 October 1998 the Stewards "may not bring to the resolution of the questions arising before [them] fair and unprejudiced minds". Put in a slightly different way, the question is whether the Stewards might be seen by the reasonable observer to have reached a conclusion from which they could not be shifted by further evidence or argument.

62 It is in this area that an examination of the transcript of the inquiry became material. There were, as the Member who delivered the lead reasons for the Tribunal said, a number of comments "which were perhaps unfortunate". On at least two occasions (31 August 1998 and in a facsimile of 2 November 1998) the solicitor for the applicant registered a protest with the Stewards about the manner in which the inquiry was being conducted and either using the word "bias" or certainly hinting at it. On both occasions the Stewards rejected the complaint. It would serve little purpose to deal with all of the comments that might be categorised as "unfortunate". I think they can, in the main, be described as evincing a sense of frustration about the way the proceedings were heading and the approach that was bring taken rather than as preconceived opinions about the credit or materiality of the applicant, her case or her witnesses. I do not think they overstepped the mark. There were some comments that might be regarded as the proffering of tentative opinions made in the course of argument. I am not persuaded that they were inappropriate nor that they went beyond the bounds of comments designed to test the materiality of the points in issue.

63 On balance I am not persuaded that what occurred could be said to qualify as a breach of the rules of natural justice under the heading of reasonable apprehension of bias. Accordingly, the third ground has not been made out.

64 In the fourth ground the applicant complains that the Tribunal erred in not acknowledging the existence of extenuating circumstances that would have justified a reduction in the minimum penalty of 12 months disqualification.

"A person who is convicted of an offence under [among other things, r 497(1)] is liable to a penalty which is not less than -

(a) in the case of a first such offence, a period of 12 months disqualification;

unless, having regard to the extenuating circumstances under which the offence was committed the ... Stewards decide otherwise."

66 In Anderson v Racing Penalties Appeals Tribunal of Western Australia, unreported; FCt SCt of WA; Library No 970504; 3 October 1997 Steytler J (with whom the other members of the Court agreed) said, at 11:

"... the words "extenuating circumstances" in Rule 55A must be read in their context. That rule provides, in each case, for a minimum period of disqualification (albeit that is one for life in the case of a fourth or subsequent offence) unless the Stewards decide otherwise, "having regard to the extenuating circumstances under which the offence was committed". That is to say, the minimum period of disqualification which will ordinarily follow in the circumstances dealt with is that provided for in each of paras (a) to (d). It is only where the extenuating circumstances under which the offence was committed are such as to cause the Stewards to decide otherwise that the minimum period of disqualification will not be imposed. That is to say, the extenuating circumstances which are there referred to are circumstances which reduce the culpability attaching to the commission of the offence in such a way as to warrant the imposition of a penalty less than the minimum which should ordinarily attach to the offence. It seems to me, in that circumstance, to be necessarily implicit in the rule that the circumstances referred to must be circumstances under which the offence was committed other than those which are ordinarily present in the case of offences of the kind under consideration and which are unusual or exceptional in that sense."

67 The Tribunal referred to this decision and said that, in its view, the Stewards did not err in reaching the opinion that there were no extenuating circumstances as that phrase is properly understood.

68 Counsel for the applicant submitted that there were several factors that the Stewards and the Tribunal had wrongly failed to recognise as "extenuating". First, that the applicant had taken all reasonable precautions to ensure stable security. Secondly, she relied on the manufacturers label. Thirdly, she had, on a previous occasion, informed the Stewards that she had fed Enzactiv Green to a horse and it had evoked no response. Finally, there was no suggestion that she had in fact administered a narcotic, poison or performance enhancing drug to the horse.

69 It is difficult to see how the first of these factors could be an extenuating circumstance. It would normally follow from the fact that the offence is found to be proved that the trainer has not made out the defence under r 497(2). In other words, the trainer has failed to satisfy the Stewards that reasonable precautions in relation to, among other things, stable security, were taken.

70 In Anderson, the trainer submitted that it was an extenuating circumstance that, on the evidence, he had not knowingly administered a drug. There, the applicant had given evidence that he had administered nothing to the horse which, so far as he was aware, could result in the maximum permitted level of carbon dioxide in the blood being exceeded. He mentioned, in this respect, that he had administered to the horse a substance known as MATOL KM which had been recommended to him by a friend and which, he had been told, had been approved by the New Zealand Trotting Association and which was not "swabbable". The Court rejected the argument that this was an extenuating circumstance. However, I do not read anything there said as indicating that this fact could never amount to an extenuating circumstance. Each case must depend on its own facts. However, I do not think the mere fact that the trainer did not know that the substance which he or she was administering was, or contained, a drug is to itself sufficient to amount to extenuating circumstances. At very least the trainer would have to go on and show that he or she had taken all proper precautions to become informed about the possible consequences.

71 In this case, the label on Enzactiv Green claims that it contains no "swabbable" ingredients. The applicant says that she relied on the label. She also gave evidence that about three years before, in relation to another horse, she had consulted Dr Harry Masters, a retired biochemist, and had been advised that Enzactiv Green could be given four hours before a race. As the Tribunal pointed out, Masters was called by the applicant as a witness and was not asked whether he had given the advice attributed to him. While nothing much can be made of that in a strict Browne v Dunn sense it is, I think, a little surprising because by that time (5 May 1998) the possibility that Enzactiv Green was the culprit, so to speak, should have been obvious to the applicant. There is another thing. In his evidence to the Stewards, Masters mentioned that on a previous inquiry "I had pointed out Enzyme [sic] Green was a potential danger. I warned the Stewards of that and also had commented there that I had rung the manufacturer ...".

72 There was also in evidence before the Stewards a gazetted notice about CO2 testing. It said that any trainer who administered, on race day, preparations containing alkalising agents should be aware of the constituents of the preparation. It went on to recommend that advice be taken from a veterinary officer or the manufacturer in cases of doubt. It also suggested that great care be taken of preparations that failed to give specific details of what the substance contained and made claims that there were no swabbable ingredients.

73 In the light of this evidence, I do not think the Stewards or the Tribunal erred in rejecting the argument that reliance on the label was an extenuating circumstance.

74 As to the previous notification to the Stewards of the use of Enzactiv Green, the circumstances in which it was given were canvassed in the evidence. It appears that one of the applicant's horses, "Warrego Gold", was entered in the 1997 Pacing Cup. The horses were to be impounded prior to the race. The Stewards required all trainers of horses that were to be impounded to fill out a questionnaire that included, among other information, details of anticipated race day administrations. But as the Tribunal pointed out, the evidence was that the form was not intended to be a notification to the Association or the Stewards of the preparations that were intended to be administered to the horse. Rather, it was for the benefit of those charged with the obligation to provide security for the impounded animals. In those circumstances, I do not think the questionnaire qualifies as an extenuating circumstance.

75 In relation to the fourth factor advanced by the applicant I accept the submission made by counsel for the second respondents in answer to it:

"We can readily agree with that, but what has it got to do with it? It might be relevant to the assessment of penalty at large to look at the relatively benign nature of the substance in question as distinct from narcotics or analgesics but it is not an extenuating circumstance that the drug in question was not one of the more nasty ones."

76 In the circumstances, the challenge to the imposition of the penalty must fail.

78 WHITE J: I have read the reasons to be published by Owen J. I agree with those reasons and have nothing further to add.