MATTER : Application for a Writ of Certiorari against the Racing Penalties Appeal Tribunal of Western Australia

THE RACING PENALTIES APPEAL TRIBUNAL OF WESTERN AUSTRALIA

Associations and clubs - Racing clubs and associations - Expulsion, suspensions and disqualification - Horse presented for race with excess drug level - Trainer disqualified for 12 months - Test for grant of order nisi and stay of penalty.

Rules of Trotting, r 87(b), r 103, r 497(1) and r 498(b)

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

1 OWEN J: This is an application for an order nisi for a writ of certiorari directed to the first respondent to quash certain decisions made by the first respondent on 8 April 1999 and a stay of the penalty imposed on the applicant.

2 The application first came before Miller J on 27 April 1999 on an ex parte basis. His Honour directed that notice of the application be given to the respondents and it be listed for a special appointment. The first respondent advised the Court that it proposed to take no part in the proceedings and that it would abide the decision of the Court. The second respondents ("the Stewards") appeared by counsel and opposed the making of an order nisi and a stay of the penalty.

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.

8 The test for the degree of satisfaction that must be reached before an order nisi for a prerogative writ is made is relatively low. For convenience I will repeat what I said in Re Heaney, Ex Parte Nexus Minerals NL, unreported; SCt of WA; Library No 950219; 8 March 1995 at 6-7:

"The modern English authorities deal with applications for judicial review, the first step in which is the grant of leave. In Inland Revenue Commissioner v National Federation of Self-Employed and Small Business Ltd [1981] UKHL 2; [1982] AC 617 Lord Diplock said at 643-644:

'If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of the granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief.'

In Re Doorga (1990) COD 109 Lord Donaldson MR proffered the view, at 110, that leave ought only to be refused "where the application for judicial review is wholly unarguable". In Savage v Teck Exploration Ltd, unreported; FCt SCt of WA; Library No 7285; 16 September 1988 Malcolm CJ said, at 3, that the order nisi procedure had, as one of its purposes, 'to ensure that the party applying has an arguable case for the relief claimed'. His Honour, also at 3, then quoted the passage that I have cited from Inland Revenue Commissioner v National Federation of Self-Employed and Small Business Ltd and said:

'In my opinion, with one qualification, those remarks are equally applicable to an application for an order nisi. On the application for the order nisi the Judge hearing the application has an opportunity to assist the Full Court by making a preliminary examination of the formulation of the grounds and, where necessary, limiting their scope or permitting amendment so that the matter can proceed to the Full Court on a proper basis.'

In Harper v Racing Penalties Appeals Tribunal of Western Australia and Ors, unreported; SCt of WA (Kennedy J); Library No 930738; 26 November 1993 Kennedy J expressed the test in terms of 'an arguable case'. I am content to rest on that formula."

9 The applicant has sought a stay of the penalty pending resolution of her application for a prerogative writ. The power to grant a stay is conferred by O 56 r 5(2) of the Rules of the Supreme Court. It also exists in the inherent jurisdiction of the Court. Order 56 r 5(2) is silent as to the test to be applied. I have not been able to locate an authority setting out the principles on which a court should proceed in deciding whether to grant a stay in these circumstances. It has some of the indicia of a stay under O 63 r 15 pending an appeal and, perhaps, some that are akin to the release of a person on bail pending appeal, although the latter is proscribed by statute. In the High Court reference has been made to the power to stay being an "exceptional jurisdiction" in relation to which there is a need to show "exceptional circumstances"; see, for example, Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681 at 684. But those comments relate to a stay before special leave to appeal to the High Court has been obtained. Here, the issue of a stay only arises once an order nisi has been made. Guidance can be obtained from cases such as Cox v Simeon, unreported; FCt SCt of WA; Library No 5063; 7 September 1983, Craig & Ors v Troy & Ors; unreported; FCt SCt of WA; Library No 970262; 13 May 1997 and Hamersley Iron Pty Ltd v Lovell, unreported; FCt SCt of WA; Library No 980624; 29 October 1998. It is often put in terms of "preserving the subject matter of the litigation". That phrase is to be understood in a very broad sense. For example, in a case concerning bail pending an application for special leave to appeal to the High Court against certain pre-trial proceedings in a criminal case, Brennan J regarded the liability of an accused person to remain in custody pending trial as being the subject matter of the litigation for those purposes: Kelleher v Governor Goulburn Training Centre [1987] 61 ALJR 278 at 279. Because this case involves the serving of a penalty, some guidance can be obtained from those principles.

10 There are other relevant aspects. As Anderson J and I pointed out in Harper v Racing Penalties Appeals Tribunal of Western Australia (1995) 12 WAR 337 there is a public interest in the preservation of the integrity of the pacing industry. This takes it beyond the immediate interests of the applicant and the Stewards. Again reverting to the bail cases (acknowledging, as I do, that importing criminal law concepts into other areas must always be done with caution) I note the dicta of Brennan J in Chamberlain v R [1983] HCA 13; (1983) 153 CLR 514 at 519 - 520 to the effect that bail pending appeal had a tendency "to invest the verdict of the jury with a provisional quality, as though it should take effect only after the channels of appeal have been exhausted".

11 Adapting the concepts emerging from those cases I would shy away from phrases such as "exceptional circumstances". I think the test can be formulated in this way: has the applicant demonstrated that there are special circumstances sufficient to satisfy the court that it is just and reasonable to order a stay so as to preserve the subject-matter and integrity of the litigation? This formulation is sufficiently broad to encompass factors that would normally be taken into account in considering the balance of convenience.

The Form of the Originating Motion and the Identity of the Parties

12 The application, in its initial form, caused me some disquiet. This was for two main reasons. First, it sought relief against the second respondents. Given the statutory framework under which the trotting industry operates (particularly the existence of a right of appeal to the first respondent from a decision of the second respondents) and the nature of the body known as "the Stewards" I have considerable doubt whether the Stewards would be amenable to supervision by way of prerogative writ.

13 Secondly, the grounds, as initially drawn, were so wide and so all encompassing that it came perilously close to an appeal on the merits rather than to judicial review on grounds of demonstrated error. At the end of the hearing I invited senior counsel for the applicant to re-draft the motion in the light of the matters canvassed. This counsel did. But in a document dated 5 May 1999 and entitled "Substituted Notice of Originating Motion" the second respondents were removed as a party to the proceedings. In my opinion, it was inappropriate to do so. The fact that no relief was sought against the second respondents did not mean that they were not properly joined as a party. Indeed, the contrary is the case. They have a real and tangible interest in the subject matter of the application. Quite clearly, they are persons to whom notice of the application would have to be given under O 56 r 4(1). As the first respondent has given notice of intention to abide the decision of the Court, the absence of the second respondents from the hearing would mean there was no proper contradictor to assist the Court on the return of the order nisi. I arranged for these views to be communicated informally to the solicitors for the applicant. On 11 May 1999 the applicant filed a "Further Substituted Notice of Originating Motion" in which the second respondents were reinstated as a party and which contained the revised grounds on which the applicant seeks to proceed. In a covering letter to the Court the solicitors for the applicant indicated that the reinstatement of the second respondents had been done with some reluctance because it may result in the applicant being "unnecessarily ... exposed to costs as a consequence".

14 On 14 May 1999 I caused my Associate to write to the parties asking two specific questions directed to the stay of proceedings. The applicant's solicitors responded on 14 May and the second respondents' solicitors did so on 18 and 19 May 1999, the latter by way of an affidavit of W J Delaney of that date. The applicant's solicitors sent a further letter on 19 May 1999 in which they addressed the matters raised in the respondents' materials.

15 I have mentioned these things for three reasons. First, so that those communications which have occurred informally since the hearing on 3 May 1999 will be clearly on the record. Secondly, to place on the record my view that the second respondents are a necessary party to the proceedings. That being so, the argument that the applicant may be exposed to costs unnecessarily is without foundation. Finally, I want to make it clear that my decision on the application for an order nisi is being reached on the grounds in the amended form of the document dated 11 May 1999.

16 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 "Enzactive Green" which had admittedly been given to the animal. Evidence was produced by the applicant on those issues. Before proceeding, I need to set out the text of two relevant 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

17 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.

18 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."

19 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)."

20 That, in a nutshell, is what the first four grounds are all about. Counsel for the applicant contended that because the deeming provision of r 498(b) was relied on the horse was "found to have had a drug administered to it". There was no dispute that the horse had been presented for racing, nor was the applicant's status as the trainer of the horse in contention. Accordingly, on a charge under the combination of r 479(1)(b) and r 498(b) the only remaining consideration was whether the applicant had proved that she had taken reasonable and proper precautions to prevent the administration of the drug. Counsel for the second respondents submitted that this was an erroneous view of the rules. Rule 498 is merely an evidentiary position. The fact that the Stewards might have relied on it was immaterial to the range of issues that fell for consideration under r 497(2).

21 There is, in my view, much to be said for the position contended for by the second respondents. Nonetheless, I need only be satisfied that the applicant's contentions are arguable. I think they are. However, I believe that the gravamen of the complaint lies in ground 2, although it involves allegations both of taking into account irrelevant considerations and proceeding on a mistaken construction of the rules. Grounds 1 and 4, in my view, add nothing to the first two particulars under ground 2. I cannot see any material difference between the third particular in ground 2 and the matter advanced in ground 3.

22 Looked at in this way, issues of unreasonableness in the sense advanced in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 do not arise. The real issue is whether the Tribunal proceeded on a wrong construction of the rules leading to the taking into account of irrelevant considerations. In the circumstances of this case, Wednesbury unreasonableness would involve a review of the merits of the evidence that was taken into account.

23 I would therefore be prepared to make an order in terms of ground 2 cast in terms of a misconstruction of the rules and the taking into account of irrelevant considerations. The unreasonableness ground should be omitted. So too should grounds 1, 3 and 4.

Ground 5 -Procedural Fairness: Failure to Disclose Evidence

24 The failure of a decision-maker squarely to disclose the material upon which it intends to rely in reaching a decision is always a problem. However, it should be a ground of judicial review only if it is material to the ultimate decision. In this case there is no sufficient material before the Court on which such a view could be taken in relation to the report of Murrihy or the letter from the Chairman of Stewards in New Zealand. Ground 5 is not arguable.

Ground 6 - Procedural Fairness: Legal Representation

25 The applicant complains that the Stewards failed to give her a reasonable opportunity of properly considering, understanding and responding to the expert evidence brought against her. In particular the Stewards refused to allow the applicant's experts to remain in the room while the experts they called were giving evidence. She was therefore unable to take advice from her experts when the others were giving evidence. It is also alleged that she was not permitted legal representation when expert evidence was taken on 5 May, 9 June and 11 August 1998. Counsel for the second respondents countered by pointing out that adjournments had been granted from time to time to enable the applicant to consult with her advisers.

26 It is apparent that the expert evidence was material to the conclusion at which the Stewards eventually arrived. It was also the subject of scrutiny by the first respondent. In August 1998 the applicant appealed to the Tribunal against the decision of the Stewards not to permit legal representation. The appeal was partially successful. On 27 August 1998 the Tribunal ruled that the applicant be permitted representation specifically for the purposes of counsel questioning expert witnesses. The Member expressly limited the right to representation to the questioning of expert witnesses and excluded cross-examination of lay witnesses and the making of oral submissions by way of closing address. The Member noted that "evidence of a highly technical nature was given, and was proposed to be given" when the inquiry resumed. He cited passages from Cains v Jenkins (1979) 28 ALR 219 at 230 and X v McDermott (1994)123 ALR 226 at 237-38 to the effect that while legal representation was not a right, even where a livelihood was at stake, a tribunal could not refuse it with impunity. The Member decided that because of the complexity of the technical issues representation should have been permitted.

27 While the correctness or otherwise of that decision of the Tribunal is not in issue I think I should say that I believe the Member correctly appreciated the relevant test. I do not think that r 38 (which deals with legal representation at inquiries) alters the principles. I have mentioned the August 1998 decision of the Tribunal because it shows that the complexity of the technical material was recognised at an early stage. What the applicant now seeks to challenge is the refusal of the Stewards to allow legal representation and other expert advice at the earlier stages of the hearing. The nature and extent of the expert testimony taken at the earlier stages and the materiality of it to the impugned decision is beyond the scope of the investigation that I am required to conduct. All I need say is that I believe the contentions advanced by the applicant are arguable.

Ground 7 - Procedural Fairness: Failure to Impound the Horse

28 The question here is whether the first respondent erred in its appreciation of the relevance of the Stewards not accepting the applicant's invitation to impound the horse. No material is before the Court to support the contention that the applicant had a "legitimate expectation" that the horse would be impounded. It is difficult to see what reviewable error is or could be involved in this issue.

29 This matter was fully argued before the first respondent. It is not clear to me what error is said to have been committed by the first respondent in the way in which it dealt with that issue: see p31 of the reasons, p82 of the affidavit of the applicant sworn 23 April 1999. The ground has not been made out.

30 The applicant complains that procedural fairness was not afforded to her because she was not given a sample of the blood taken from the horse on 16 February 1998 and was thus deprived of the opportunity to have her own tests carried out.

31 It seems that what happens in the testing procedure adopted by the Stewards is this. Blood is taken from the horse and placed in two separate containers that are sealed. The Stewards retain both copies of the "split sample". The first copy is sent to the laboratory for analysis. The second copy is retained by or under the control of the Stewards. If (as in this case) the first sample returns a positive result the interested parties are invited to attend at the laboratory to witness the carrying out of the analysis on the second sample. The Stewards invited the applicant to follow this course but she did not avail herself of the opportunity.

32 In my view there is no sufficient material on which to base a conclusion that it is arguable that the course of action followed by the Stewards represents such a departure from fair dealing as to constitute a breach of the rules of natural justice. Ground 8 has not been made out.

33 It is not entirely clear whether a domestic tribunal exercising consensual powers can run foul of the bias rule only if actual bias, as opposed to a reasonable apprehension of bias, is established: for example, contrast Dale v New South Wales Trotting Club Ltd [1978] 1 NSWLR 551 with Cains v Jenkins (1979) 42 FLR 188. For the purposes of this application I will proceed on the basis that a reasonable apprehension of bias is sufficient.

34 I believe that the matters set out in the first particular of ground 1 could arguably give rise to a reasonable apprehension of bias, as that phrase is now understood: see, for example, Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41 per Mason CJ and McHugh J at 47. It is not necessarily fatal to the ground that Mr Rolfe was not a member of the inquiry at the time when he is alleged to have made the impugned comments.

35 Particulars 2 and 3 relate to things that were said during the inquiry. I do not think it is arguable that they could lead to a finding of reasonable apprehension of bias. In this respect, regard should be had to the dicta of Wilson J in Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 359-360:

"A court of review must be careful not to exaggerate the significance of actions or statements made by a judge in the course of a proceeding. There must be 'strong grounds' (Reg v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd for inferring the existence of a reasonable suspicion. In Shaw, Gibbs ACJ, in a judgment with which three other members of the Court agreed, said:

'In that case [referring to Watson] it was pointed out that it is not uncommon, and sometimes necessary, for a judge, during argument, to formulate propositions for the purpose of enabling their correctness to be tested, and that 'as a general rule anything that a judge says in the course of argument will be merely tentative and exploratory'. However, in some cases the words or conduct of the judge may be such as to lead the parties reasonably to think that the judge has prejudged an important question in the case, and then prohibition may issue. Of course, the court which is asked to grant prohibition will not lightly conclude that the judge may reasonably be suspected of bias in this sense; it must be 'firmly established' that such a suspicion may reasonably be engendered in the minds of the parties or the public, as was made clear by the Court in Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group, in the passage cited in Reg v Watson; Ex parte Armstrong'. "

36 There is little, if anything, in the materials before the Court to support the complaint raised in the fourth particular. An almost identical complaint was argued before the first respondent. The Member dealt with it at p22 of his reasons (p73 of the affidavit of the applicant sworn 23 April 1999). There is nothing to suggest an arguable and reviewable error in the way in which the first respondent dealt with the issue. It is tantamount to a request for a review on the merits.

37 The fifth particular is a substantive ground of challenge in its own right. If a failure to afford legal representation is made out then all well and good. I think it properly goes to procedural fairness. In the circumstances of this case I do not believe it is arguable that it could independently raise a reasonable apprehension of bias. Similar comments go to the purported incorporation of grounds 5, 6, 7 and 8 by the seventh particular.

38 The sixth particular raises what might be an important point of principle that the applicant should have the opportunity to canvass before the Full Court. It is not the law that where a domestic tribunal (such as the Stewards) is required to conduct a preliminary investigation in order to decide whether to exercise substantive powers the bias rule automatically prevents the members who conducted the initial inquiry from proceeding to the next stage. But care needs to be taken. The question is whether the objective observer would regard the Stewards as having made positive findings on material issues. If so, a reasonable apprehension of bias might arise. When, on 12 October 1998, the Stewards advised the applicant that they intended to charge her they said they were doing so "after a very careful consideration of all the evidence": see affidavit of John Hammond sworn 23 April 1999 p102. The transcript of the proceedings up to that point occupies some 399 pages. Through to the finality of the proceedings the transcript occupies only another 42 pages. The hearing had involved the taking of expert evidence and it is apparent that the opinions of these witnesses was important in the decision making process. No testimony of that nature was taken after the charge was laid. Indeed, at p427 of the transcript the Stewards said that they "did not intend questioning any further witnesses at this stage of the inquiry". In the light of those considerations I think it is arguable that a reasonable apprehension of bias could arise in the circumstances.

39 I would be prepared to make an order nisi that includes ground 9 so long as it was limited to the material in the first and sixth particulars.

40 It is arguable that the Tribunal's decision not to intervene against the imposition of the 12 months disqualification was in error. However, the ground as presently drafted lacks particularity. What are the irrelevant considerations that the Tribunal took into account? What are the relevant considerations to which the Tribunal should have paid heed?

41 The factors advanced by the applicant in favour of the grant of a stay are set out in paras 62 to 90 of her affidavit sworn 23 April 1999. There is supporting material in affidavits sworn by her father Anthony Stampalia on 17 November 1998 and by her mother Judith Stampalia on 17 November 1998 (for the appeal to the first respondent) and 30 April 1999.

42 The applicant says that training and driving horses is her sole source of income and she will suffer great financial hardship if a stay is not granted. She also says that she will be deprived of the ability "to use the only work skills [she] possess[es]". I do not believe these things amount to "special circumstances".

43 The applicant, her father, mother and brother, operate their trotting interests from stables attached to her parents residence. They have 15 horses at those stables and another 30 agisted in the country. Some of the horses are owned jointly by the applicant and her parents, while others are owned by her parents, alone or with her brother. The applicant does not train horses other than those owned or bred by the family. It is a reasonably large operation and the stables take quite a bit of management. Before her disqualification the applicant had been primarily responsible for the management of the stables. Since the disqualification those duties have fallen largely to the applicant's mother and an employed stable hand and with some assistance from her father and brother. There is a limit to the assistance that the father and brother can give because they are engaged full time in an earthmoving business. The father also suffers from carpel tunnel syndrome and back problems that cause him difficulties. The mother also suffers some health difficulties.

44 The applicant says she has been traumatised by the proceedings and her health has suffered. This is supported by her general practitioner. He has indicated that the applicant is suffering from depression as a result of her disqualification. His report continues:

"She needs the support of her family and I have advised that she should move back home with her parents otherwise the depression will deteriorate."

45 It is apparent that third parties may be put to inconvenience and expense if the stay is not granted. I speak here of the applicant's family. As I understand it, some of the horses kept at the Stables adjoining the Stampalia residence or on agistment elsewhere are owned by family members other than the applicant and there are some in which the applicant has a part interest. If the applicant retains her ownership interest in the horses of which she is presently a part owner there will be an obvious difficulty in nominating those horses for racing during the period of the disqualification. She can seek the permission of the Controlling Body to transfer her interest to the other part owners. It lies in the discretion of the Controlling Body, on being satisfied that the proposed transaction is bona fide, to approve the transfer: see r 103. The affidavit of Delaney indicates that this course has been followed in relation to two of the horses in which the applicant had an interest. The solicitors for the applicant have pointed out that these transfers took place at a time when the stay was in force and that the situation (where the applicant is disqualified) is different. I accept the difference. However, there is an avenue that could be explored and that would result in the horses in which the applicant presently has an interest continuing to race, if that is what the applicant and the other members of the family wish to do. I am not persuaded that this factor amounts to special circumstances in favour of a stay.

46 It is also apparent from the affidavit of Delaney that there are other horses of which Mr A M Stampalia is the trainer which have been raced since the stay came into effect. I accept the evidence filed on behalf of the applicant contained in the various affidavits of Messrs A M and V Stampalia, that they cannot realistically manage the stables due to a combination of physical difficulties and the pressure of running their earthmoving business. The burden therefore falls on Mrs J M Stampalia to do so. I accept that she too will have difficulty in fulfilling the necessary tasks. However, the family already employs one outside stable hand to assist in managing the stables and no material has been put before me to indicate that there are financial or other imperatives that would prevent additional assistants being engaged. It is the applicant who bears the onus of establishing the existence of special circumstances in favour of a stay.

47 I think the most telling point for the applicant on this issue is her state of health. I have given that evidence very serious consideration. The applicant's general practitioner has advised her to return to her parents' home or risk aggravating the depressive condition from which she is suffering. This presents a difficulty because the stables are attached to the residence. Rule 87(b) provides:

"No person who is closely associated whether by family connection or otherwise, with a disqualified person, shall enter, nominate, train, drive or race any horse during the period of his disqualification, if in the opinion of the Stewards or Controlling Body, applying harness racing experience, he might be likely through such association to:

(i) permit such disqualified person to assist, direct or advise him in any of the activities mentioned in this sub-rule;

(ii) cohabit with the disqualified person in the proximity of the Training Area used by such associated person; or

(iii) be likely to be influenced by such disqualified person in carrying out any of the activities mentioned above."

48 As I read it, r 87(b)(ii) would require the horses to be shifted to another venue before the applicant could return to live with her parents as the medical advice has suggested she should do. If the Stewards or Controlling Body were to form the view that it was likely the applicant would cohabit with a relevant associated person they are left with no discretion. This will involve inconvenience and expense. Whether r 87(b)(i) and (ii) would present a problem could only be known after an application had been made to the Stewards or Controlling Body and the requisite opinion formed.

49 I have to balance all of these considerations. There is, as I have said, a public interest in maintaining drug free racing and in the integrity of the processes by which various bodies within the industry seek to ensure that this goal is met. A court called on to stay a penalty pending judicial review should not lightly do something that might create a perception that the decision of the specialist entities within the industry has a provisional quality. On the other hand, I accept that the applicant has health problems and that if her medical advice is to be implemented she and third parties (in this case members of her family) will be put to inconvenience and expense if their participation in the trotting industry is to continue during the period of her disqualification.

50 This is the judgment I have to make. In the circumstances of this case I think it falls against the grant of a stay and I am not prepared to intervene.

51 I would be prepared to make an order nisi on grounds 2, 6, 9 and 10 so long as they are re-cast and limited in accordance with these reasons. I am not prepared to grant a stay of the penalty. The costs of this application should be reserved to the Full Court. To minimise costs I suggest that the applicant's solicitors deliver to my Associate a minute of proposed orders after consultation with the solicitors for the second respondents. Unless there is a dispute I will make the order administratively without the need for a further attendance.

52 There is one other point. I had considerable difficulty in locating the relevant materials because they are spread between the substantive affidavits of the applicant and Mr Hammond. It may now be necessary formally to include the entirety of the transcript in the materials. I think some thought should be given to the best means by which the relevant materials can be presented to the Full Court in a way that will facilitate the hearing.