Administrative Law - Judicial review - Powers of courts under judicial review legislation - Stay of proceedings and interlocutory relief - Stay of operation of decision - Disqualification of harness racing trainer.

Judicial Review Act 2000 (Tas), s26(2)(a).

Faingold v Zammit (1984) 1 FCR 87; Aboriginal Development Commission v Ralkon Agricultural Co Pty Ltd (1987) 15 FCR 159, referred to.

Attorney-General: Director of Public Prosecutions

Judgment Number: [2009] TASSC 115

1 This is an application by a disqualified harness racing trainer for the operation of his disqualification to be suspended while he challenges it under the Judicial Review Act 2000. He made a similar application earlier this year, but that application related to an earlier disqualification: Toulmin v Tasmanian Racing Appeal Board [2009] TASSC 34.

2 On 1 January 2009 the applicant presented a horse at a race meeting at St Marys. On 14 January 2009, stewards conducted an inquiry and found that he had breached the Australian Rules of Harness Racing ("ARHR"), r190, which provides as follows:

"A horse shall be presented for a race free of prohibited substances."

3 The stewards found that the horse presented by the applicant had a prohibited substance in its system at the time it raced. ARHR, r118A provides that an alkalinising agent is a prohibited substance. It also provides that an alkalinising agent evidenced by a concentration of total carbon dioxide of 36.0 millimoles per litre in plasma, or less, is excepted from that definition. The stewards had two certificates of analysis, each of which disclosed that samples taken from the horse had a concentration of total carbon dioxide of 37.6 mmol/L. The stewards disqualified the applicant for 18 months. Such a disqualification prohibits a trainer not only from training and driving horses, but also from participating in virtually every aspect of the harness racing industry: ARHR, r259(1).

4 Racing is treated as a matter of public importance in Tasmania. The Racing Regulation Act 2004, s28(1)(b)(ii) provides that a person may appeal to the Tasmanian Racing Appeals Board ("the Board") if the person is aggrieved by a decision of stewards to impose a disqualification on the person. The applicant appealed to the Board pursuant to that provision. The Board granted a stay of his disqualification on 14 January, revoked that stay on 12 June, and granted another stay in August. After a lengthy hearing, the Board decided on 28 October 2009 to dismiss his appeal, insofar as it related to the finding that r190 had been breached. At the same time, the Board revoked the stay of the disqualification. On 30 November 2009 the Board confirmed the penalty imposed by the stewards, and ordered that the 18-month disqualification was to conclude on 7 April 2011.

5 The applicant has applied to this Court for the review of the Board's decisions pursuant to the Judicial Review Act. He has also applied under s26(2)(a) of that Act for an order suspending the operation of the Board's decisions.

6 The respondents to this application are the Board and the Chief Steward. They have decided to take no part in the litigation, and have filed notices of submission in accordance with the Supreme Court Rules 2000, r777G. The Attorney-General has intervened in the proceedings pursuant to the Judicial Review Act, s39, and has opposed the "stay" application.

7 The outcome of the proceedings relating to the applicant's earlier disqualification was that he had to serve a four month disqualification as from 30 March 2009. He has not worked since that date. He was unable to work in the harness racing industry even when his disqualification was stayed because he was unable to obtain appropriate licences. At the hearing before me, he gave evidence that he had been living on his savings and borrowed money, and that he had spent all his working life in the racing industry. His chances of earning any significant income from some other sort of work pending the determination of his judicial review application are not good.

8 The Attorney-General contends that the application for judicial review has no chance of success, and that I should therefore refuse to suspend the operation of the Board's decisions. Not surprisingly, counsel for the applicant submitted that his client had a strong case, that his client faced months without an income if I did not make the order sought, and that this was therefore an appropriate case for a stay to be ordered under s26.

Merits of the applicant's case - introduction

9 At the hearing of the appeal to the Board, the central question concerned the reliability or otherwise of the certificates of analysis. In the Judicial Review Act proceedings, the applicant is contending that the Board erred in various respects in its approach to that question.

10 The Board conducted a hearing de novo. It was obliged to apply ARHR, r191(1), which provides as follows:

"A certificate from a person or drug testing laboratory approved by the Controlling Body which certifies the presence of a prohibited substance in or on a horse at, or approximately at, a particular time, or in blood, urine, saliva, or other matter or sample or specimen tested, or that a prohibited substance had at some time been administered to a horse is prima facie evidence of the matters certified."

11 The critical sub-rule was ARHR, r191(7), which provides as follows:

"Notwithstanding the provisions of this rule, certificates do not possess evidentiary value nor establish an offence, where it is proved that the certification procedure or any act or omission forming part of or relevant to the process resulting in the issue of a certificate, was materially flawed."

12 Counsel for the applicant submitted to the Board that, in relation to each of the two certificates, the certification procedure, and/or acts or omissions forming part of or relevant to the process resulting in the issue of the certificate, were materially flawed. Three well qualified expert witnesses gave evidence before the Board - a Dr Vine called by Racing Services Tasmania, and a Dr Cook and a Dr Kibby who were called by counsel for the applicant. A great deal of documentary evidence was tendered. The Board delivered detailed reasons for its decision that r190 had been breached. It concluded that it was not satisfied "that any of the matters raised by the appellant constitute a flaw, let alone a material flaw, in the certification procedure or any act or omission forming part of that procedure."

13 The grounds upon which the Court may grant relief in proceedings for the review of a decision under the Judicial Review Act are limited, and are listed in s17(2) of that Act. Counsel for the applicant informed me that his client relied only on pars(f), (h) and (i) of that subsection. The relevant provisions read as follows:

"(f) that the decision involved an error of law (whether or not the error appears on the record of the decision);

(h) that there was no evidence or other material to justify the making of the decision;

(i) that the decision was otherwise contrary to law."

14 An unusual feature of this case is that the rules that the Board was required to apply were rules made or adopted by Harness Racing Australia Inc, and not rules made by a statutory or public body. For the purpose of this decision I will assume, without deciding, that an error in the interpretation or application of those rules would amount to an error of law as if those rules formed part of the law of Tasmania. Under the Racing Regulation Act, s34(1)(a), the Board is empowered, after hearing an appeal, to "affirm, vary or quash the decision that was the object of the appeal". I will proceed on the assumption that, when the Board hears an appeal from stewards, that Act impliedly imposes upon the Board a duty to apply the rules that the stewards were obliged to apply.

15 "There is no error of law simply in making a wrong finding of fact": Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54 per Brennan J at 77. Furthermore, the making of a finding of fact on the basis of illogical reasoning does not amount to an error of law: R v District Court; ex parte White [1966] HCA 69; (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356; St Helen's Area Land & Coast Care Group Inc v Break O'Day Council [2007] TASSC 15; (2007) 16 Tas R 169 at 184 - 186. Counsel for the Attorney-General submitted to me that many of the applicant's grounds of review, on a proper analysis, asserted only that the Board had made findings of fact that were wrong or illogical.

16 It is necessary to consider each of the applicant's grounds of review. Ground A relates to the Board's ultimate finding, made after its finding that there had been no relevant material flaw, that the applicant had breached ARHR, r190(1), by presenting the horse at the meeting "when it was not free from a prohibited substance in that it had in its system an alkalinising agent, TCO2 [sic] at a concentration of 37.6 mmol/L of equine plasma". Ground A asserts that, based on the evidence presented by and on behalf of the applicant in the hearing before the Board, it was in error, as a matter of law, in making that finding.

17 There is nothing in the material before me to suggest that the Board misinterpreted any relevant rule, ignored a relevant consideration, took into account an irrelevant consideration, made a mistake about an onus of proof, or made any other sort of identifiable error of law. I therefore do not see any merit in ground A.

18 Ground B asserts that the Board misdirected itself "on what constitutes a 'Material Flaw' in the light of the evidence produced and exhibited highlighting such flaws in the process forming part or relevant to the issue of admitting the Certificate as evidentiary proof against the Applicant for [sic] the offence alleged." However the Board did not, at any point in its reasons, attempt to explain the meaning of the words "material flaw". It dealt with five separate submissions made on behalf of the applicant in relation to alleged material flaws. All of those submissions related to the calibration of a Beckman EL-ISE machine that had been used to measure the concentration of total carbon dioxide in samples of equine plasma.

19 One of the procedures used for the purpose of calibrating the machine involved passing through it five quantities of material produced by Australian Scientific Enterprises Limited ("ASE") with known concentrations of total carbon dioxide. It was submitted that the certification procedure was materially flawed because the five "calibrators" were not themselves the subject of certificates of analysis. The Board assessed evidence given by Dr Kibby in relation to this point, and concluded that it did not follow that there was any flaw in the manufacturing process.

20 The second submission concerned the adequacy of documentation produced to the Board from ASE and the National Measurement Institute ("NMI"). Some columns were not ticked, but the Board thought it should be cautious in inferring anything from that. There was evidence that a preservative was used in the manufacture of some solutions. The applicant contended that the preservative might have affected their stability. Dr Vine gave evidence that storage experiments had confirmed their stability. That evidence was accepted. There was evidence that something had been crossed out. The Board observed that no evidence was led to suggest that that was an indication of a flaw. The Board thus rejected all the arguments based on criticisms of the documentation.

21 The third submission concerned the certification of "certified reference material" by NMI. The first criticism concerned pH values obtained during a titration process. The Board reviewed the expert evidence and concluded that there was insufficient evidence to establish a material flaw. The second part of this submission concerned an assertion of an inaccurate recording of a pH value. The Board made a finding of fact rejecting that contention.

22 The fourth submission concerned figures in relation to the calibration of the Beckman EL-ISE machine. Calibration material from two different sources produced two inconsistent sets of figures. However the Board rejected this submission on the basis that the inconsistency complained of was between theoretical figures for the calibration material from one source and figures measured by the machine for material from the other source. Those were findings of fact. The Board's conclusion was to the effect that the discrepancy proved nothing.

23 The fifth and final submission was that a document from ASE giving information about its calibrator material was entitled "Bicarbonate Linearity" when the machine was being used to measure total carbon dioxide. The Board observed that there was no basis for suggesting that the ASE calibrators were for anything other than the purpose for which they were used, apart from the use of the word "Bicarbonate" in the document. It rejected the fifth submission on that basis.

24 Thus the Board rejected all suggestions that any relevant procedure, act or omission was "materially flawed". It did not need to consider any question as to the precise meaning of those words since it rejected all suggestions that any procedure, act or omission resulted in any certificate being unreliable to any degree. I therefore see no merit in the contention that it misdirected itself as to what constitutes a "material flaw".

25 Ground C asserts that the Board wrongly relied on assumptions made by Dr Vine in relation to the make-up of the ASE solution for the calibration of the machine. This does not assert an error of law.

26 Ground D asserts that the Board "misdirected itself and was in factual error" in relation to the inconsistent figures for the calibrators that came from two different sources. This ground does not raise a question of law. The Board simply made findings of fact as to one set of figures being hypothetical and one set the result of measurements, and concluded that any such inconsistency was therefore of no probative value.

27 Ground E asserts that the Board "failed to take proper notice" of the documents on which the fourth submission was based. It relates only to the weight that the Board attached to certain documents. It does not assert any error of law.

28 Ground F also relates to the fourth submission. It asserts that the Board "wrongly and inappropriately discredited Dr Kibby" and his evidence on certain points. It asserts only that the Board erred in those respects in its fact-finding.

29 Ground G relates to all five of the submissions made on behalf of the applicant at the hearing before the Board. It asserts that each of the five assertions were proven, and that the Board "misdirected itself and was in error" in failing to take those five matters into account as establishing material flaws, as distinct from "mere speculation". In substance, this ground asserts that the Board made wrong findings of fact. This ground does not raise any contention as to an error of law.

30 Ground H is in the nature of a conclusion. It asserts that, in view of all the earlier grounds, the Board was in error "as a matter of Law" in allowing the certificate of analysis into evidence. It adds nothing to the other grounds.

31 For these reasons, I believe that the applicant has no realistic prospect of success in relation to s17(2)(f). That is to say I do not believe that he will be able to establish, on the basis of any of the pleaded grounds of review, that the Board's decision involved an error of law.

Absence of evidence or material to justify decision?

32 The applicant contends that, within the meaning of s17(2)(h) "there was no evidence or other material to justify the making of the decision". The availability of relief under s17(2)(h) is limited by s21, which provides as follows:

"The ground mentioned in section 17(2)(h) and section 18(2)(h) is taken not to be made out -

(i) the person who made, or proposed to make, the decision was required by law to reach the decision only if a particular matter was or is established; and

(ii) there was no evidence or other material (including facts of which the person was or is entitled to take notice) from which the person could or can reasonably be satisfied that the matter was or is established; or

(i) the person who made, or proposes to make, the decision based, or proposes to base, the decision on the existence of a particular fact; and

33 The matter that needed to be established in order for the Board to dismiss the appeal was that, when presented for the race, the horse had a total carbon dioxide level in excess of 36.0 mmol/L. In order to succeed under s21(b), the applicant would need to prove not only that the measurements of the total carbon dioxide concentration were wrong, but also that the actual concentration was below 36.0 mmol/L. There is no suggestion that the applicant had independent blood tests conducted, or preserved blood samples that might have enabled them to be conducted. It therefore seems to me that he has no realistic chance of proving that the actual concentration was below 36.0 mmol/L.

34 In order to succeed under s21(a), the applicant would need to persuade a judge that there was no evidence or material before the Board from which it was reasonably able to be satisfied that a concentration in excess of 36.0 mmol/L was established. The scope of the equivalent to our s21(a) in the Administrative Decisions (Judicial Review) Act 1977 (Cth), s5(3)(a), was considered by Mason CJ in Australian Broadcasting Tribunal v Bond (supra). At 538, his Honour said:

"The better view, one which seeks to harmonize the two grounds of review, is to treat 'error of law' in s 5(1)(f) as embracing the 'no evidence' ground as it was accepted and applied in Australia before the enactment of the AD(JR) Act and to treat the 'no evidence' ground in s 5(1)(h), as elucidated in s 5(3), as expanding that ground of review in the applications for which pars (a) and (b) of s 5(3) make provision. Within the area of operation of par (a) it is enough to show an absence of evidence or material from which the decision-maker could reasonably be satisfied that the particular matter was established, that being a lesser burden than that of showing an absence of evidence (or material) to support the decision."

35 The full implications of the relaxation of the common law's literalism have not been tested: Aronson Dyer and Groves, Judicial Review of Administrative Action, 4th ed, 2009, par4.395. However it is clear that our ss17(1)(h) and 21(a) and their equivalents in the Commonwealth legislation were not intended to give applicants a right to a full review of fact-based decisions on their merits. For any ground of review to be brought within these provisions and succeed, the applicant would need to persuade a judge that there was no evidence or other material before the Board upon which it could reasonably have been satisfied as to the total carbon dioxide concentration in the horse's blood. The Board had the certificates of analysis and the advantage of seeing and hearing the expert witnesses. On the material before me, I am not persuaded that any aspect of its reasoning is likely to be regarded as unreasonable. In my view there is no reasonable prospect of the applicant succeeding under s17(1)(h).

36 That leaves s17(2)(i). To succeed on the basis of that provision, the applicant would need to establish that, in some respect not involving an error of law, the Board's decision was contrary to law. A provision like s17(2)(i) should not be regarded as permitting decisions to be challenged on the basis of general unfairness: Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 21 FCR 193 per Gummow J at 220 - 222. With all due respect to counsel for the applicant, I do not think that he suggested, during his submissions, any basis upon which any of the grounds of review could in any sense be brought within s17(2)(i).

37 For these reasons, I think that the application for the review of the Board's decision under the Judicial Review Act does not have any realistic likelihood of success.

38 It is well established, that in judicial review proceedings, when an applicant seeks an order suspending the operation of the decision under review, the strength of the applicant's case is an important consideration. In Faingold v Zammit (1984) 1 FCR 87 at 92, the Full Court of the Federal Court (Sweeney, Lockhart and Sheppard JJ) said:

"In our opinion it will be difficult for an applicant to show that reasons or circumstances exist which make it just that the court should make the order sought unless it is demonstrated that the applicant has a point of substance to argue which, if successful, will result in judgment in his favour."

39 In Aboriginal Development Commission v Ralkon Agricultural Co Pty Ltd (1987) 15 FCR 159, a differently constituted Full Court (Forster, Woodward and Wilcox JJ) reviewed the relevant authorities and said, at 163:

"There may be cases in which the facts are so clearly and comprehensively established at the time of the application for the interim order that the court would conclude that the applicant had no arguable case. At the opposite extreme there may be cases in which the applicant has had little opportunity to ascertain the facts and to adduce evidence but there is some material to suggest an entitlement to relief. Upon further investigation that material may turn out to be capable of ready refutation or explanation but, in the meantime, it may be appropriate for the court to intervene. Everything must depend upon the circumstances of the case, including the extent to which the applicant has had an opportunity to present the facts to the court and the consequences of granting or of refusing relief."

40 In this case, I do not have the transcript of the proceedings before the Board, nor do I have copies of the bulk of the documentary material that was before the Board. However I have the Board's detailed reasons for its decision. They appear to me to be thorough and logical. The applicant has been represented by counsel, who also represented him before the Board. He has had an opportunity to produce any document that was before the Board, and to give evidence of anything that was said before the Board. In those circumstances, I consider that I am in a good position to make an assessment as to the strength of the applicant's case. My assessment is that it has no apparent merit.

41 This is the applicant's second disqualification. If the facts as found by the Board were correct, he breached ARHR, r190(1), at a time when his first disqualification had been stayed pending his first appeal to the Board. In my view a judge should be reluctant to grant a further stay in such circumstances.

42 If a stay is refused, and the applicant is ultimately successful in several months' time, the refusal of a stay may well have deprived him of an opportunity that he should have had, to earn money in his chosen field of work. However, primarily because I think the applicant has not demonstrated that his application has any reasonable prospect of success, I think the preferable course is to refuse his application.

43 For these reasons, the interlocutory application is dismissed.