1. The stay order made on 11 April 2018 is set aside.
2. Under section 51(2)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Racing Appeals and Disciplinary Board's 11 April 2018 decision is affirmed. The disqualification period will commence on 13 April 2019.

1. Ms Jody Thompson is a horse trainer who has been in the racing industry for around 30 years. She owns Skating for Gold, a retired race horse.
2. On 8 March 2017, Racing Victoria Limited (RVL) laid two charges against Ms Thompson. On 11 April 2018, the Racing Appeals and Disciplinary Board (RAD Board) found Ms Thompson had breached the relevant two rules. The RAD Board decided to impose a three month disqualification for one of the rule breaches and a concurrent one month disqualification for the other breach.
3. On 11 April 2018, Ms Thompson applied to this Tribunal for review of the RAD Board's decision. On the same day a consent order was made staying that decision.
4. After a hearing on the issues, on 16 January 2019, I found Ms Jody Thompson had breached the two rules.[1]
5. On 14 March 2019 there was a further hearing before me as to whether I should affirm the RAD Board's disqualification decisions.
6. I have decided to affirm the RAD Board's decision.

1. At the 14 March 2019 hearing, RVL's counsel, Ms Brimer SC, informed me that, on and from 1 March 2019, new Rules of Racing came into force (2019 AR) She contended, and Ms Thompson's counsel Mr Levine agreed, that 2019 AR 8(2)(b) and (e) had the effect that any decision made under the old Rules was deemed to be a decision under the 2019 AR.
2. Accordingly, I was referred to new 2019 Rule 283 as containing the power to impose penalties including a fine, suspension and disqualification.
3. As the parties were agreed on the issue, I have proceeded on the above basis.
4. The charges under the old rules related to rules 175(o)(iv) and 175(o)(iii). The relevant content of those rules is set out below. To avoid confusion, in these reasons I have referred to old rule 175(o)(iv) as 'the nutrition rule' and to the old rule 175(o)(iii) as 'the veterinary treatment rule'.

1. The first charge against Ms Thompson was brought under the nutrition rule and said:

The Principal Racing Authority (or the Stewards exercising powers delegated to them) may penalise:

(o) Any person in charge of a horse who in their opinion fails at any time:

(iv) to provide proper and sufficient nutrition for a horse.

1. You are, and were at all relevant times, a trainer licensed by Racing Victoria, and a registered owner.
2. You are, and were at all relevant times, the owner of Skating for Gold, a horse which was retired on or about 8 November 2015.
3. In contravention of [the nutrition rule], during the period from approximately 25 December 2016 to about 27 January 2017, you failed to provide proper and sufficient nutrition for Skating for Gold.
4. The second charge was made under the veterinary treatment rule and said:

The Principal Racing Authority (or the Stewards exercising powers delegated to them) may penalise:

(o) Any person in charge of a horse who in their opinion fails at any time:

(iii) To provide for veterinary treatment where such treatment is necessary for the horse.

1. You are, and were at all relevant times, a trainer licensed by Racing Victoria, and a registered owner.
2. You are, and were at all relevant times, the owner of Skating for Gold, a horse which was retired on or about 8 November 2015.
3. During the period from approximately 25 December 2016 to about 27 January 2017, Skating for Gold:

1. lost significant body condition such that by about 30 January 2017, it had a body condition score of 1 out of 5 (in accordance with the Agriculture Victoria Condition Scoring and Weight Estimation of Horses Body Condition Scoring System) (the horse's poor body condition).

1. In contravention of [the veterinary treatment rule], prior to about 29 January 2017, you failed to obtain veterinary treatment where such treatment was necessary for the horse in respect of:

1. In making my findings I took into all the circumstances which included the following:
   • After Skating for Gold retired from racing in about November 2015, Ms Thompson kept the horse with her other horses at her property or with those of friends and family on nearby properties;
   • Just before Christmas in 2016, Ms Thompson moved the horse to a paddock in Wallan;
   • Ms Thompson's usual practice was to check in on the horse personally every three to four days. From around late December to mid- January, she was visiting every one, two or three days. On her evidence before me, Ms Thompson said she did not visit at all from around 20 January 2017 (or possibly a few days before) to 24 January 2017, because her vehicle had tyre problems;
   • On 25 January 2017, Ms Thompson attended and saw the horse had lost a lot of weight. Ms Thompson 'nearly had a heart attack' when she saw it. She decided she needed to move the horse to her stables;
   • As Ms Thompson had horses racing on 26 January 2017, she went and collected the horse on Friday 27 January 2017;
   • Between 27 and 30 January 2017, Ms Thompson fed the horse, wormed it and checked its teeth but no vet was called;
   • On 30 January 2017, an RVL Steward, Mr Wade Hadley conducted a routine inspection at Ms Thompson's stables. On seeing the horse, he contacted an RVL vet and it was agreed an assessment was to be done; and
   • Dr Paul Martin attended the same day. He assessed the horse using the Code of Practice for the Welfare of Horses (Code) Body Condition Scoring method. That method rates horse's body condition on a scale of 0 to 5 with 0 being very poor and 5 being very fat. On 30 January 2017, Dr Martin rated the horse as having body condition 1, 'poor'.
2. In respect of charge 1, I found:
   • For the purposes of Rule 175(o)(iv) 'proper and sufficient nutrition' will be dependent on the particular horse and its needs. The sufficiency of the nutrition can be determined by considering the horse's body condition, it's general health and age, where it is kept, how it accesses feed and whether it is in competition with other animals. In order to make that assessment, one must supervise the horse. Supervision must be of a kind that allows for the assessment to be done with sufficient regularity;
   • For charge 1 to be proven, it was not necessary to show a paucity of nutrition on each and every day in the period in issue (25 December 2016 to 27 January 2017). The question for determination was whether there was a failure to provide proper and sufficient nutrition during - that is, in the course of - the stated time frame;
   • While an arrangement was in place for the owners of horses at Wallen to keep an eye on each other's horses, Ms Thompson had primary responsibility for Skating for Gold as his owner and trainer.
   • There was adequate grass and lucerne at the Wallen property for all the horses agisted there. There was no suggestion Ms Thompson's other horses or any other horses on that property were underfed;
   • However, as Skating for Gold was a 'windsucker' - that is, he tended to suck on a fence post or rail or other like structure and inhale air rather than eating feed - if that condition was not managed, the horse did not eat adequate feed. Dr K McKellar, a vet called by Ms Thompson gave evidence that Skating for Gold was a 'very severe' windsucker and so he needed to be fitted with the collar all the time.
   • Ms Thompson was aware that, in order to feed properly, Skating for Gold required a windsucking collar. She was also aware that, over the period commencing around 11 January 2017, there were at least three days when he did not have a collar on, apparently because someone removed it;
   • At best, over some of the relevant period Skating for Gold was visited or visually inspected from a car, three or four times per week. Between about 1 and 20 January 2017, the only supervision of the horse was provided by Ms Thompson. On Ms Thompson's evidence, that supervision occurred at the rate of one or two visits per week prior to around 20 January 2017 and none from that date until 25 January 2017. The evidence suggested, but was not sufficient to find, that Ms Thompson may not have attended at all for the whole week leading up to 25 January 2017;
   • On 25 January 2017, Ms Thompson was aware that Skating for Gold was in poor condition but did not move him until 27 January 2017;
   • The described rate of supervision over the whole period was inadequate given the Guidelines to the Code of Practice for the Welfare of Horses[2] and the evidence of Ms Thompson's own vet witness who stated that he has his horses inspected at least twice daily on weekdays and once a day on weekends;
   • On Dr McKellar's further evidence, the rate of visits and supervision was inadequate given Ms Thompson was aware Skating for Gold would not feed properly without a windsucking collar and she was aware it had been removed a number of times after 11 January 2017; and
   • Skating for Gold's body condition score of 1 was caused by insufficient nutrition. While adequate feed was available at the Wallen property, the horse's windsucking habit meant he needed the collar on at all times to ensure he received adequate nutrition. It was not material how the collar came to be missing - as the owner and trainer, Ms Thompson was responsible for ensuring Skating for Gold's specific nutritional requirements were met and that could only be done by appropriate supervision coupled with action to ensure the collar was fitted or re-fitted as necessary.
3. In respect of charge 2, I found:
   • In the context of Rule 175(o)(iii), 'veterinary treatment' can include testing and assessments of the kind undertaken which were directed towards identifying why Skating for Gold was in such poor condition and whether he had a medical condition which would explain that condition;
   • No veterinary treatment had been provided to Skating for Gold as at 29 January 2017, when the RVL's vet attended Ms Thompson's property and assessed Skating for Gold's body condition as 1;
   • The appropriate treatment for the horse was an intensive feeding program together with testing to determine the cause of the poor body condition;
   • Once Ms Thompson became aware of Skating for Gold's condition on 25 January 2017, she was required to provide veterinary treatment in the form of a comprehensive medical assessment, including testing and a physical examination. That course of action was consistent with common sense and responsible horse ownership - if a horse had a body score rating of 1 out of 5, it seemed to me to be readily apparent it was either seriously ill or is not receiving or able to absorb adequate feed. That called for a vet to attend to assess the cause of the poor body condition and determine what short and/or long-term measures might be required to return the animal to good health; and
   • Ms Thompson should have made arrangements for a vet to attend and examine Skating for Gold on Friday 27 January, Saturday 28 January 2017 or Sunday 29 January 2017 so that the veterinary treatment as described was arranged and completed by 28 January 2017.
4. In reaching my findings on charge 2, I noted that, the chronology of events showed that Ms Thompson made no positive efforts to have a vet attend until after RVL had inspected. That suggests that, had the routine inspection not occurred, no vet may have been called.

1. RVL contended the following are relevant considerations for the Tribunal.
2. Significant weight ought to be given to general deterrence in relation to breaches of the nutrition rule. The welfare of horses is a paramount consideration and so, when considering general deterrence, a clear message must be sent that the failure to provide proper and sufficient nutrition is a serious matter and it must be made clear to those in the industry that it will not be tolerated.[3]
3. The community expects that licensed trainers will ensure that each of the horses within their care is provided with proper and sufficient nutrition and that, where veterinary treatment is required, it is obtained. The racing industry is reliant on the maintenance of its social licence within the broader community. Accordingly, penalties imposed for breaches of animal welfare must reflect the concerns of the community and act as a deterrent not only to the person charged but to the industry generally.[4]
4. RVL drew my attention to the following which comes from Judge Bowman's reasons in Andrew Benyan:

I say at the outset that charges against people who look after racehorses and who fail to provide sufficient nutrition are very serious charges indeed. As I have said in earlier cases, the need for general deterrence is a very large factor. The failure to provide sufficient nutrition will not be tolerated. Apart from the sympathy that people quite properly and understandably have for underfed or mistreated horses, there is the whole question of the image of racing. The welfare of racehorses is always in the spotlight and this is also fully understandable. The penalty imposed should reflect this and should be imposed bearing in mind general deterrence and, if appropriate, individual or specific deterrence.

1. Mr Levine, counsel for Ms Thompson, took no issue with the above submissions and I accept they are relevant to my decision.

1. RVL maintained that the appropriate penalty in this case was a three month disqualification for the breach of the nutrition rule and a concurrent one month disqualification for the breach of the veterinary treatment rule.
2. RVL placed reliance on Ms Thompson's state of awareness that:
   • Skating for Gold was a windsucker that did not feed properly without a collar; and
   • There were at least three days when it did not have a collar on.
3. RVL noted my finding that the rate of supervision provided by Ms Thompson was inadequate.
4. Accordingly, RVL contended that Ms Thompson's state of awareness together with her lack of remorse as evidenced by her not guilty plea, distinguished the matter from Andrew Benyan where a three month suspension was imposed.
5. The reasons for decision in Andrew Benyan[5] show that he was found to have breached the nutrition rule more as a result of 'misunderstanding and carelessness' rather than 'wilful underfeeding or complete disinterest and total absence of care'. The horse in issue had been retired from racing and sold. It was placed on a property which had a shortage of natural feed. That was said to be the result of climatic conditions. Feed was dropped off but it was inadequate and the RAD Board found that ought to have been known to the trainer. The reasons for decision said that it seemed perhaps in anticipation of the sale, the trainer 'neglected to keep up the level of care and feeding that was required. That is no excuse, but it is a part explanation.' Mr Benyan was found to have cooperated with the Stewards and he pleaded guilty. At the relevant time, Mr Benyan was not training any horses but was a part owner in two.
6. As to the breach of the veterinary treatment rule, RVL said the imposition of a one month disqualification would recognise the obligations on licensed trainers to ensure that horses in their care are appropriately cared for as reflected in the requirement that veterinary treatment is provided where such treatment is necessary. RVL referred to my finding that Ms Thompson made no positive efforts to have a veterinarian attend until after the RVL inspection on 30 January 2017 and placed emphasis on my comment that the evidence suggested that, had RVL not attended, no vet may have been called.

1. Ms Thompson's counsel contended that the appropriate penalty in this case was a fine in circumstances where:
   • The reason she did not visit between 20 and 24 January 2017 was partially explained by the fact she had a flat tyre on her truck and that, she did attend the property once it was fixed and the public holiday had passed;
   • On realising the condition Skating for Gold was in, Ms Thompson took remedial action in taking him to her stables. Ms Thompson has continued to provide care to the horse since;
   • The essential finding on the veterinary treatment rule was that Ms Thompson should have arranged for a medical assessment to be undertaken by 29 January 2017 when it in fact occurred on 30 January 2017; and
   • Ms Thompson kept the horse after it was retired instead of having it euthanised 'because the public expect horses to be treated with respect and not to be regarded as disposable'.
2. Mr Levine contended the conduct was at the lower end of the scale submitting that there was no element of cruelty and rather Ms Thompson made an error of judgment for a period of three to four days when arrangements she had made for Skating for Gold's supervision broke down during the school holidays and when she had a flat tyre. The paddock had sufficient feed but the removal of the windsucking collar resulted in the horse being unable to feed properly.
3. Similarly, Ms Thompson was said to have made an error of judgment in not calling a vet by 29 January 2017. While accepting that was done on 30 January 2017, it was submitted it was speculative to surmise that visit was prompted by the Steward's visit.
4. Mr Levine confirmed Ms Thompson had no past similar findings against her although there was a past suspension of three months for a high bicarbonate reading.
5. He submitted there was no need for specific deterrence as Ms Thompson was of good character and had managed her stables competently and with no question of the horses being malnourished.
6. Mr Levine further contended there was no need for general deterrence as there were special circumstances which involved no element of cruelty and the conduct, which was said to be 'no more than carelessness' was of short duration and had not been repeated.
7. I was told Ms Thompson:
   • Has been in racing since she was 14 years old and the industry provides her sole source of income;
   • Has no other qualifications or experience and so no prospects of obtaining alternative work;
   • Lives with her aunty in a rental property;
   • Has been impacted by the development works at the Kilmore track which has been closed since 23 November 2018; and
   • Employs four people part time in the stables and trains 34 horses. She has 24 horses in her stables of which 10 are racehorses in work, 10 are spelling and three are breakers. I understood the last of the 24 is Skating for Gold which is retired.
8. Mr Levine drew my attention to the fact that, if Ms Thompson's disqualification was maintained, there would be additional delay while she reapplied and re-built her business.
9. Mr Levine sought to distinguish the decision in Andrew Benyan contending that case had two elements - a failure to provide adequate feed and a failure to take remedial action. He contended that the first was not present here although the second was.
10. He also referred to a decision in Gordon Strang where the Stewards assisted the trainer to rehome horses which were found to be in light condition. Mr Levine also referred to Maria Rizzo where, the trainer was reprimanded for having one malnourished horse and then was monitored for 12 months. Relying on those cases, he contented that it was not necessary to interfere with Ms Thompson's licence.

1. At the hearing, I asked RVL to clarify the consequences of disqualification as compared to suspension, particularly when it comes to the horse breaking work Ms Thompson has done for many years.
2. After a break, I was informed that the agreed position between the parties was that Ms Thompson could not work as a horse breaker irrespective of whether she was disqualified or suspended. That is because, as set out in 2019 AR 263(1)(j), if disqualified Ms Thompson may not be involved in preparing horses for racing or in training any horse, and under 2019 AR 267, if suspended, she could not train or participate in training a horse or act or be involved in any capacity in any racing stable.

1. The parties agreed that I could consider personal references submitted after the hearing.
2. All of the referees spoke highly of Ms Thompson's care for horses and her skill and aptitude as a trainer. It was also apparent from the references from industry participants she is respected by her peers and has displayed a lengthy and deep commitment to the industry. Some of the referees spoke about the strong and reliable friendship Ms Thompson offered them. Several had known her for most of her life and reflected on her good character.

1. I do not accept Mr Levine's characterisation of the events proving charge 1 as amounting to carelessness and a breakdown in supervision arrangements due in part to the fact it was school holidays and in part due to an unexpected flat tyre.
2. As set out earlier, I found Ms Thompson's level of supervision of Skating for Gold to be inadequate, particularly given she was aware the horse would not feed if the windsucking collar was not on at all times and she was aware it had been removed several times. On her own vet's evidence, all horses should be supervised daily.
3. The role of the flat tyre was not emphasised at the substantive hearing. In my view the fact that one vehicle had a flat tyre at a relevant time does not in any way assist Ms Thompson as I have no doubt that there were other vehicles owned by family and friends which could have been made available to her to use to visit the horses throughout the relevant period.
4. It is correct that I found the time during which Ms Thompson did not visit the horse was only four days. However, as noted above, that finding was only made because the evidence was not clear and I commented that the evidence suggested that Ms Thompson may not have attended at all for the whole week leading up to 25 January 2017. I also made a positive finding that, although Ms Thompson was aware that Skating for Gold was in poor condition, she did not move him for another two days.
5. As to the breach of the veterinary treatment rule, I did not merely find that the treatment should have been arranged a day earlier. I found Ms Thompson should have made arrangements for a veterinarian to attend and examine Skating for Gold as early as Friday 27 January and certainly by Sunday 29 January 2017. While accepting my comment that no vet treatment may have been provided had RVL not undertaken a routine inspection was speculative, I note Ms Thompson gave no evidence that she planned to call a vet on or before 29 January 2017.
6. I now turn to the cases I was referred to for comparison purposes.
7. I have some trouble reconciling the facts of Andrew Benyan with the contention that the circumstances in this case were less serious or indicated mere carelessness. It seems to me that both Ms Thompson and that trainer failed to properly supervise the relevant horse and that is why they did not remedy problems with inadequate feed. In my view, that kind of conduct cannot properly be described as carelessness in the face of the requirements imposed on trainers by the Guidelines to the Code of Practice for the Welfare of Horses and as reflected in the evidence the vets gave before me about appropriate levels of supervision.
8. As I did not have access to the reasons for decision or more information about the facts and the reasons for the penalties in either Gordon Strang or Maria Rizzo, it was difficult to make use of them when assessing the appropriate penalty.
9. As is always the case, my task is to determine the correct or preferable decision.
10. I would accept Mr Levine's contention that specific deterrence is not a significant factor in this case other than for the fact that Ms Thompson has disputed the charges throughout. As I understood it, she placed responsibility for Skating for Gold's condition on the person who removed the collars and did not accept at any time that her level of supervision for that horse was wholly inadequate. It seems to me Ms Thompson has not accepted that as owner and trainer she could not pass responsibility for her horse's wellbeing onto others. This is not a case where there was a shortage of food and only minor consequences - the body condition score of 1 and the photographs of Skating for Gold reveal the horse was neglected and malnourished in a manner which calls for criticism.
11. Balanced against that, I accept Ms Thompson's past involvement in the industry and her references show her to be of good character and to have been an attentive owner and trainer.
12. While I have not excused her conduct, I accept it was a terrible, one-off failure which will not be repeated, if nothing else because of the dire personal consequences for Ms Thompson.
13. General deterrence is an important factor in this case, particularly its role in maintaining public confidence in the industry. Any form of insufficient attention or care for horses leading to malnourishment is to be abhorred. I endorse Judge Bowman's comments in Andrew Benyan to the effect that:
    • Charges against people who look after racehorses and who fail to provide sufficient nutrition are very serious;
    • A failure to provide sufficient nutrition will not be tolerated; and
    • A failure to provide adequate nutrition focuses attention on the welfare but also places the image of racing under a spotlight.
14. In these circumstances, I do not accept a fine is an appropriate penalty as it would not meet the need for specific and general deterrence.
15. It is important that industry participants understand arrangements can fall away or unexpected events occur which will not justify them suspending or ignoring their most basic responsibilities to supervise and feed their animals. It is entirely usual for people to have or to be able to rapidly put in place contingency plans to ensure they meet their work obligations when illness or other unexpected events occur - being a licensed trainer is no different.
16. Despite being called a 'penalty' in the 2019 AR, decisions such as this are not intended to be punitive, although it is accepted that such decisions may have a punitive effect on an individual, particularly when general deterrence is a prime consideration.
17. Taking into account all of the circumstances and giving particular weight to the seriousness with which neglect of this kind is to be viewed, I have concluded that disqualification is an appropriate outcome. I make that finding noting that Mr Benyan was suspended after cooperating with the Stewards and pleading guilty.
18. Accordingly, I have decided to affirm the RAD Board's decision to impose a disqualification of three months in respect of charge 1 and a concurrent one month disqualification in respect of charge 2.
19. As discussed at the hearing, under 2019 Rule 283(7), the disqualification period will commence seven days after my order is made. I will also order

that the stay granted on 11 April 2018 is set aside from the date of my order.

[1] Thompson v Racing Victoria Limited [2019] VCAT 29.

[2] See paragraphs 21 to 26 of the earlier reasons for decision.

[3] Referring to Judge Bowman's reasons in Ian Fletcher, 13 July 2016.

[4] Referring to the Queensland Steward's decision in Patrick Inwood.