Trainor v Harness Racing New South Wales & Anor

Supreme Court of NSW|2023-10-24|Before: Nixon J, Henry J

Background

The Plaintiff, Jack Trainor, is a registered trainer and driver of harness racing horses. The First Defendant, Harness Racing New South Wales (HRNSW), is the statutory authority charged with the administration of the sport of harness racing in New South Wales. The Second Defendant, Michael Prentice, is a steward appointed by HRNSW, and is the Integrity Manager for that body.
In May 2023, HRNSW appointed a panel of stewards (the Panel) to conduct an inquiry in relation to a positive drug test that was returned by one of Mr Trainor's horses after winning a race in March 2021 (the Inquiry). The Chairman of the Panel conducting the Inquiry is Mr Prentice.

Facts

On 23 March 2021, a horse owned by Mr Trainor, called "Chubby Checker NZ" won a race at Tabcorp Park, Menangle. The horse's urine sample subsequently tested positive to Levamisole.
On 27 April 2021, Mr Prentice, in his capacity as the Integrity Manager of HRNSW, sent a letter to Mr Trainor advising him of the positive result that had been reported by the Australian Racing Forensic Laboratory.
Mr Prentice stated that the reserve portion and control sample had been sent to Racing Analytical Services Limited in Victoria for confirmation. He notified Mr Trainor that pursuant to Rule 183A of the Australian Harness Racing Rules (the Rules), it had been determined that Chubby Checker NZ "shall not be nominated or compete in any race until the outcome of an inquiry or an investigation". The letter set out the terms of Rule 183A which provides as follows: "Upon receipt of a certificate in accordance with Rule 191(1) which establishes prima facie evidence of the presence of a prohibited substance, the Stewards may determine that the horse which is the subject of the certificate shall not be nominated for or compete in any race until the outcome of an inquiry or investigation by the Stewards into the presence of the prohibited substance."
Mr Prentice's letter to Mr Trainor then sets out the following text under the heading "ACTION IN RELATION TO YOU": "Having regard to: (a) The serious nature of the prohibited substance; (b) The absolute liability of a trainer for the presence of a prohibited substance; (c) The existence of a prima facie case against you based on the certificate from ARFL; (d) HRNSW's protective objectives in the course of its core function to control, supervise and regulate harness racing in this State. HRNSW Stewards are considering whether to invoke the provisions of Australian Harness Racing Rule (AHRR) 183. AHRR 183 reads; Pending the outcome of an inquiry, investigation or objection, or where a person has been charged with an offence, the Stewards may direct one or more of the following (a) that a horse shall not be nominated for or compete in a race; (b) that a driver shall not drive or otherwise take part in a race; (c) that the horses of certain connections shall not be nominated for or start in a race; (d) that a licence or any other type of authority or permission be suspended. Under the provisions of Rule 183(a), (b), (c) and (d) you would be unable to enter any horse trained or owned by you to race. Further, you would not be permitted to drive in any race or trial. Furthermore, any horse currently trained by you would not be permitted to be transferred to another trainer without the permission of HRNSW. Should you wish to make submissions in relation to whether the provisions of AHRR 183 should not be invoked or otherwise, Stewards will consider such submissions if they are received no later than 4pm on Friday 30 April 2021. HRNSW Stewards will continue to conduct an investigation into this sample irregularity and you will be advised in due course of a date for the inquiry."
On 11 May 2023, Mr Prentice sent a further letter to Mr Trainor, providing him with a revised analysis of the sample from the Australian Racing Forensic Laboratory, together with the analysis of the reserve portion and control sample by Racing Analytical Services Limited. Mr Prentice notified Mr Trainor that HRNSW stewards had scheduled an inquiry into this matter on 24 May 2023, directed Mr Trainor to attend, and stated that he should ensure that he had any evidence or witnesses available at this time. The letter concluded with the following warning, in bold print: "Failure to attend may result in the matter being heard in your absence or action being taken against you pursuant to the Australian Harness Racing Rules".
Mr Trainor retained Mr McGirr in relation to the Inquiry. On 19 May 2023, Mr McGirr wrote to Mr Prentice, asking for the entirety of any evidence sought to be relied upon, tendered or produced at the Inquiry.
In response, on 23 May 2023, Mr Prentice referred to his letter to Mr Trainor dated 27 April 2021 (referred to above), together with its attachments, and the further testing report previously provided to Mr Trainor. In addition, he attached the transcript of a stable inspection that occurred on 28 April 2021, involving Mr Trainor, Mr Prentice, Ms Glide (who is identified as the Integrity Assistant), Mr Grimson (Licensee) and Grant Adams (Chairman of Stewards); and transcripts of two telephone interviews which Mr Prentice and Mr Adams conducted with Ken Barron on 15 March 2021 and 28 April 2021. Mr Barron is the trainer, based in New Zealand, from whom Chubby Checker NZ was purchased.
On 24 May 2023, Mr Trainor attended the Inquiry, together with Mr McGirr, who was given leave to appear at the Inquiry. The Panel conducting the Inquiry was comprised of four members: Mr Prentice as the Chairman of the Panel; Clint Bentley (Chairman of Stewards); and Chris Paul and Todd Sharwood (each a Deputy Chairman of Stewards).
Mr McGirr applied for Mr Prentice to recuse himself from sitting on the Panel on the basis of apprehended bias, and made submissions in support of that application. The transcript of the Inquiry on that day includes the following exchange: "THE CHAIRMAN: … You mentioned that in respect of myself you spoke of me having investigated the matter and obtained reports and spoken to witnesses. Is that not a normal role of a steward or ---- McGIRR: It certainly is. Again, we ---- THE CHAIRMAN: And that they're able to then sit on an inquiry or ---- McGIRR: We certainly do not cavil with the fact that you've investigated this matter. What we have an issue with is as a decision-maker where in circumstances you are going to be a witness and will need to be cross-examined. And that case that I gave you will show you that if a layperson deems there to be an issue of even apprehended bias, it doesn't need to be bias, just apprehended, it's a very low threshold in these cases."
This exchange is significant because Mr McGirr, who is also Mr Trainor's solicitor in these proceedings, stated to the Panel that he accepted that it is usual for stewards to undertake investigations, obtain reports, speak to witnesses, and sit on an inquiry in relation to those matters, and Mr Trainor "certainly [did] not cavil with the fact that you've investigated this matter". Instead, the objection was put on a different basis, namely, that Mr Prentice was likely going to be a witness in the Inquiry and would need to be cross-examined. This was apparently due to the fact that Mr Prentice had spoken to Mr Barron on 15 March 2021, prior to Chubby Checker NZ racing at Menangle on 23 March 2021.
In the proceedings before me, Mr Trainor did not advance any submission of apprehended bias based on a contention that Mr Prentice would likely be a witness in the Inquiry that he was chairing. Instead, the contention of apprehended bias was based on the fact that Mr Prentice had investigated the matter which was the subject of the Inquiry, including obtaining reports and speaking to witnesses (those being the same matters which Mr McGirr had accepted were the normal role of a steward, and not matters raised before the Panel by way of objection to Mr Prentice's involvement).
The Inquiry was adjourned to allow further evidence to be obtained by Mr Trainor, and further submissions to be made in respect of Mr Prentice's participation on the Panel. On 9 June 2023, Mr McGirr provided further written submissions on that issue. Again, the written submissions focussed on the contention that Mr Prentice was likely to be a witness in the Inquiry which he was chairing: "Given the conduct of Mr Prentice during the investigation of this matter leading up to the inquiry it will be anticipated that he will be a central witness to determine issues the basis of which the inquiry will rely upon. It will be open for our client to place Mr Prentice's conduct under scrutiny. It would be our submission that such scrutiny, and based on the material objective facts, would lead to Mr Prentice to suffer from an impartial or unprejudiced mind to the resolution of the question. In circumstances where public policy dictates Mr Prentice has an obligation to not only the members of HRNSW but the NSW public generally his conduct may become a central issue in the way in which our client may conduct his defence. There is clearly a "logical connection" between that matter and the feared departure from Mr Prentice deciding the case on its merits and it would be unprecedented in circumstances whereby our client has advised Mr Prentice that he will be a witness at the inquiry for him to not recuse himself. In order for HRNSW to maintain public confidence in the administration of justice it would, in our respectful submission, only be open for Mr Prentice to recuse himself."
On 13 October 2023, Mr Prentice wrote to Mr Trainor informing him that the resumption of the Inquiry had been scheduled for 25 October 2023, and directing him to attend. In addition, Mr Prentice attached two further transcripts of interviews conducted on 9 June 2023: namely, a transcript of a further interview with Mr Barron; and a transcript of an interview of another trainer located in New Zealand, Sam Payne. Mr Prentice was not involved in either of those interviews.
On 16 October 2023, Mr McGirr asked Mr Prentice whether HRNSW had made a decision in relation to Mr Trainor's application for Mr Prentice's recusal from the Inquiry. On 17 October 2023, Mr Prentice advised Mr McGirr that this application had been refused by the HRNSW stewards.
On 20 October 2023, the Panel provided reasons for rejecting the recusal application in respect of Mr Prentice. These reasons indicate that the application was determined by all four members of the Panel, including Mr Prentice. The reasons noted (at [5]) that the contention of apprehended bias was based on an assertion that Mr Prentice "will be a central witness to determine issues the basis of which the inquiry will rely upon", and set out (at [7]) passages of the transcript of 24 May 2023, in which Mr McGirr referred to Mr Prentice's interview of Mr Barron in March 2021, and stated that "the issue we've got is that you're a witness". The Panel concluded that, for the purposes of such an application, it was necessary for actual bias to be established, and that apprehended bias was not sufficient. Further, the Panel concluded (at [22]) that the authorities establish that a scenario whereby a Steward may hold a dual role as both witness and judge at an inquiry is not a proper basis for an application of this kind; and that in any case (at [25]), the contention that Mr Prentice's conduct would be scrutinised at the Inquiry was speculative and unsupported by evidence.
As I have noted above, the Inquiry, which was set to resume on 25 October 2023, will now resume on 1 November 2023.
In their written submissions, the Defendants noted that the Inquiry remains in its investigative phase and no charges have yet been issued against Mr Trainor. Further, the Defendants submitted that if, following the completion of the investigative phase, the Panel determines to charge Mr Trainor with an offence under the Rules, he will then have the opportunity to respond to that charge; and that if the Panel determines the charge is established, then Mr Trainor will have an opportunity to make submissions on penalty.
However, it was common ground between these parties that, when an inquiry does proceed by the stages described above, all of those stages commonly occur in the space of a single day. That is, there is a prospect that, when the Inquiry resumes on 1 November 2023, the Panel will, in the course of that day, determine whether to charge Mr Trainor; hear submissions on that charge; determine whether the charge has been established; hear submissions on penalty; and determine the penalty. Against that background, the Defendants did not advance a contention that an issue of apprehended bias could arise only after the point at which a charge has been formulated.

The statutory scheme

HRNSW is constituted as a body corporate by section 4 of the Harness Racing Act 2009 (NSW) (the Act). HRNSW does not represent the Crown and is not subject to direction or control by the Government: s 5.
The functions of HRNSW include, relevantly, to control, supervise and regulate harness racing in the State; and to register harness racing horses, owners, trainers and drives of harness racing horses: s 9(2)(a)-(b).
HRNSW has power to do all things that may be necessary or convenient to be done for or in connection with the exercise of those functions: s 10(1). Without limiting that general provision, HRNSW has power to do the matters set out in s 10(2) of the Act which include, relevantly, the power to: "(b) supervise the activities of harness racing clubs, persons registered by HRNSW and all other persons engaged in or associated with harness racing, (c) inquire into and deal with any matter relating to harness racing and to refer any such matter to stewards or others for investigation and report and, without limiting the generality of this power, to inquire at any time into the running of any harness racing horse on any course or courses, whether or not a report concerning the matter has been made or decision arrived at by any stewards, … (f) disqualify a harness racing horse from participating in a race, … (h) prohibit a person from attending or taking part in a harness racing meeting, (i) impose a penalty on a person registered by it or on an owner of a harness racing horse for a contravention of the rules…"
Section 22 of the Act provides that HRNSW may make rules, not inconsistent with the Act or the regulations, for or with respect to the control and regulation of harness racing. These include rules dealing with the appointment of stewards by HRNSW and the functions of those stewards (s 22(i)). Section 21 of the Act provides that HRNSW may, in accordance with the rules made under the Act, take various steps, including cancelling the registration of any trainer or driver; disqualifying, either permanently or temporarily, any trainer or driver; prohibiting any person from participating in harness racing in any specified capacity; prohibiting any person from taking part in a harness racing meeting; imposing fines on any trainer or driver; and suspending, for such term as HRNSW thinks fit, any right conferred by the Act or the rules on any trainer or driver.
It is common ground that the Rules have been adopted by HRNSW and apply in New South Wales. There are also Local Rules, which are made by HRNSW.
Part 2 of the Rules deals with the appointment and powers of stewards. Rule 15 of the Rules relevantly provides as follows: "(1) Stewards are empowered - (a) to direct and control at any time the activities of persons licensed under these rules and anyone else appointed, employed or engaged in any aspect of the harness racing industry, concerning the application of these rules; (b) to entertain and determine all matters under question or in dispute at or arising out of a meeting or race, or concerning the meaning or application of these rules, or concerning any aspect of the harness racing industry; … (e) to suspend or disqualify any person from participating in or being employed or engaged in or about the harness racing industry; … (k) to inspect, examine or test in such manner as they consider appropriate any person, horse, racetrack, stable, stud, artificial breeding station or other place, item, document, equipment, vehicle or substance; (l) to provide reports and recommendations about or arising out of any inquiry, investigation or determination or upon any subject connected with the harness racing industry to the Controlling Body; (m) to impose fines; (n) to impose any other penalties provided for in these rules; … (ae) to do anything else reasonably necessary to the performance of their duties."
Part 11 of the Rules deals with Inquiries and Investigations. Rule 181 provides as follows: "The Stewards may, and when directed by the Controlling Body shall, conduct inquiries or investigations in such manner as they think fit into any occurrence or matter at or arising out of or connected with a meeting, race or event, or into any aspect of the harness racing industry, or into anything concerning the administration or enforcement of these rules."
Rules 183 and 183A allow for interim measures to be taken pending the outcome of an inquiry. They provide as follows: "Action pending outcome 183. Pending the outcome of an inquiry, investigation or objection, or where a person has been charged with an offence, the Stewards may direct one or more of the following:- (a) that a horse shall not be nominated for or compete in a race; (b) that a driver shall not drive or otherwise take part in a race; (c) that the horses of certain connections shall not be nominated for or start in a race; (d) that a licence or any other type of authority or permission be suspended. 183A. Upon receipt of a certificate in accordance with Rule 191(1) which establishes prima facie evidence of the presence of a prohibited substance, the Stewards may determine that the horse which is the subject of the certificate shall not be nominated for or compete in any race until the outcome of an inquiry or investigation by the Stewards into the presence of the prohibited substance."
Part 12 of the Rules deals with Prohibited Substances. Rule 189(1) provides that the stewards may carry out tests and examinations to determine whether a prohibited substance was or is in a horse. Rule 190 provides relevantly as follows: "(1) A horse shall be presented for a race free of prohibited substances. (2) If a horse is presented for a race otherwise than in accordance with subrule (1) the trainer of the horse is guilty of an offence…"
In Day v Sanders; Day v Harness Racing New South Wales (2015) 90 NSWLR 764; [2015] NSWCA 324, the Court of Appeal held that rule 190 created an absolute liability offence: "A proper reading of r 190(2) is that it imposes on a trainer an absolute responsibility for the horse presented for a race being free of prohibited substances with the result that, if the trainer presents a horse that does not satisfy that condition, he or she is guilty of an offence" (at [85] per Basten JA, with Leeming JA at [128] and Simpson JA at [131] agreeing).
Rule 191 relevantly provides as follows: "(1) A certificate from a person or drug testing laboratory approved by the Controlling Body which certifies the presence of a prohibited substance in or on a horse at, or approximately at, a particular time, or in blood, urine, saliva, or other matter or sample or specimen tested, or that a prohibited substance had at some time been administered to a horse is prima facie evidence of the matters certified. (2) If another person or drug testing laboratory approved by the Controlling Body analyses a portion of the sample or specimen referred to in sub-rule (1) and certifies the presence of a prohibited substance in the sample or specimen that certification together with the certification referred to in sub-rule (1) is conclusive evidence of the presence of a prohibited substance…"
Part 15 of the Rules deals with Penalties. Rule 256, which was at issue in Day v Sanders (and was quoted at [31]) relevantly provides as follows: "(1) One or more of the penalties set out in sub rule (2) may be imposed on a person, club or body guilty of an offence under these rules. (2) (a) A fine within the limits fixed by legislation or by the Controlling Body, (b) conditional or unconditional suspension for a period; (c) disqualification, either for a period or permanently; (d) warning off, either for a period or permanently; (e) exclusion from a racecourse, either for a period or permanently; (f) a bar, either for a period or permanently, from training or driving a horse on a racecourse, track or training ground; (g) conditional or unconditional suspension of registration for a period or cancellation of registration; (h) conditional or unconditional suspension of a licence for a period or cancellation of a licence; (i) a severe reprimand; (j) a reprimand or caution. … (6) Although an offence is found proven a conviction need not necessarily be entered or a penalty imposed. (7) Before an offence is found proven, the following conditions shall be satisfied:- (a) the offender shall be afforded reasonable opportunity to cross examine witnesses, make submissions, present evidence to the Controlling Body or the Stewards as the case may be; (b) those submissions or evidence shall be taken into account; (c) evidence relied upon in establishing the offence shall be identified; (d) in a matter before the Stewards, those Stewards who finally determine that an offence has been committed shall be present during the whole of the proceedings."
The stewards are therefore responsible for performing a number of different roles. They act as investigators of potential contraventions of the Rules; they decide whether any person should be suspended pending the outcome of such investigations; they decide whether charges should be brought against persons who have been the subject of the investigation; and they then act as decision-makers in determining those charges and imposing penalties.
In circumstances where the stewards determine to disqualify, suspend or impose a fine of more than $200 on a person, that person has a right to appeal against the decision to the Appeal Panel: s 34B(1) of the Act. An appeal to the Appeal Panel is to be conducted as a new hearing: s 34C(1). Fresh evidence, or evidence in addition to or in substitution for the evidence on which the decision appealed against was made, may be given on the appeal: s 34C(2). The principal member of the Appeal Panel must be an Australian lawyer of at least 7 years standing, as must be any person who is presiding at the hearing of the appeal: ss 34F(2) and 34G(4)(b)(ii).
The Appeal Panel has the power to dismiss the appeal; to confirm the decision appealed against; to vary the decision by substituting a decision that could have been made by the racing authority; to refer a matter for rehearing in accordance with directions given by the Appeal Panel; or to make another order in relation to the disposal of the appeal as the Appeal Panel thinks appropriate: s 34D(1).
On the lodging of an appeal, and an application for a stay of proceedings, the Appeal Panel has the power to grant a stay in circumstances where it considers that a substantial injustice may be caused to the appellant if the stay is not granted: rule 181E of the Local Rules of Harness Racing NSW, which have been adopted by HRNSW.
An appeal lies from the Appeal Panel to the Racing Appeals Tribunal of New South Wales. Section 15B of the Racing Appeals Tribunal Act 1983 (NSW) provides as follows: "(1) A person who is aggrieved by any of the following decisions may, in accordance with the regulations, appeal against the decision to the Tribunal - (a) a decision of the Appeal Panel on an appeal under the Harness Racing Act 2009, (b) a decision for which an appeal is properly made to the Appeal Panel under the Harness Racing Act 2009 if the Appeal Panel - (i) neglects or refuses to hear the appeal or (ii) fails to make a decision on the appeal, (c) a decision of HRNSW. (2) HRNSW may, in accordance with the regulations, appeal to the Tribunal against a decision referred to in subsection (1)(a) or (b)."
An appeal to the Tribunal is by way of a new hearing, and fresh evidence, or evidence in addition to or in substitution for the evidence on which the decision appealed against was made, may be given on the appeal: Racing Appeals Tribunal Act, s 16(1). The Tribunal has similar powers to the Appeal Panel, including the power to dismiss the appeal, confirm the decision appealed against, substitute a new decision, refer the matter for rehearing, or make such other order in relation to the disposal of the appeal as the Tribunal thinks fits: Racing Appeals Tribunal Act, s 17(1).
By reason of these provisions, a trainer whose licence is suspended as the result of a stewards' inquiry has two levels of appeal, each of which involves a de novo hearing with the ability to lead fresh or substituted evidence, and without the need to identify error in the decision below, together with the right to apply for a stay while such appeal is determined. The stewards are not involved in the decision-making at either level of appeal.

Claim of apprehended bias

The relief sought by Mr Trainor in the Summons includes: "2 An order pending the determination of these proceedings that the First Defendant be restrained by itself its servants and agents from continuing or from authorising the continuation of the stewards' inquiry commenced by the Second Defendant and others as a panel of stewards under the Rules of Harness Racing NSW (Panel) on 24 May 2023 into the running on 23 March 2021 of the Plaintiff's horse known as "Chubby Checker NZ" at Tabcorp Park Menangle (the Inquiry) where such Panel is constituted with the Second Defendant sitting as a member or as Chairman. 3 An order pending the determination of these proceedings that the Second Defendant be restrained from continuing to sit or participate as a member of the Panel or as chairman of the Inquiry. … 7. An order that the matter be remitted to the First Defendant to appoint a new Panel of Stewards without the Second Defendant included to continue and determine the Inquiry."
Mr Trainor does not make any claim of actual bias as against Mr Prentice. Instead, Mr Trainor's application is put solely on the basis of apprehended bias.
The Panel's decision in respect of the recusal application was based, in part, on the proposition that no challenge could be made against the decision of a domestic tribunal on the basis of apprehended bias, but only on the basis of actual bias. Mr Jones confirmed that no such proposition was put by the Defendants at the hearing before me.
The principal issues for determination, therefore, are whether Mr Trainor has established apprehended bias, and if so, whether the Court should grant the relief sought.
In respect of the relevant principles regarding apprehended bias, both parties relied on the decision of the High Court in Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20. In that case, Kiefel, Bell, Keane and Nettle JJ observed (at [20]) that: "The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is a largely factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made."
I have set out the statutory and factual context above. An important part of the legal context is that the role of stewards in regulating the racing industry, and in particular their role in both investigating and adjudicating contraventions of the rules governing racing, has previously been the subject of a number of decisions in the Court of Appeal.
In Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378, the Court of Appeal held that the stewards, in the conduct of an inquiry, had a duty to observe the rules of natural justice, but that a denial of natural justice was not established by the fact that two stewards gave evidence adverse to the person concerned, based on their own knowledge of events, before the committee of which they were members. In contrast, the stewards did breach natural justice by not allowing the person concerned to make submissions, after the charge was determined adversely against them, and before a penalty determination was made.
Samuels JA (with whom Hutley JA agreed) observed that, by the rules of the relevant body, the stewards were charged to ensure that the rules were observed and enforced in respect of all matters relating to racing, and that it was therefore clear that "the stewards were required to act as policemen and supervisors during the course of the meeting, in addition to the 'judicial' function which they might have to assume" under the rules. His Honour commented (at 387): "The rules, therefore, contemplate that they might be bound to inquire into, and punish, conduct which they might themselves have discovered or observed".
His Honour accepted that the power of stewards to act upon their own knowledge may be excluded where a steward is so directly and personally involved in the matters under consideration that the only reasonable inference is that he or she must have an interest in the outcome of proceedings. In that regard, reference was made to Dickason v Edwards (1910) 10 CLR 243, where Griffith CJ said (at 252): "But, if he is not merely a formal party but is in substance an individual complaining of an offence against himself, then I think very different considerations apply. Then it becomes his own cause, not in a technical sense, but substantially. He is a person complaining of a grievance. Is he a person who ought to be allowed to try the alleged offender?"
An example is provided by Stollery v The Greyhound Racing Control Board (1972) 128 CLR 509; [1972] HCA 53. The manager, who was a member of the Board and present throughout its deliberations, was himself the target, as he believed, of the attempted bribery which was alleged to have occurred. In those circumstances, Gibbs J remarked (at 527) that the manager was "in substance the accuser and therefore was disqualified to act as a judge".
In Hall v NSW Trotting Club, Samuels JA held (at 388) that the facts were significantly different to those of Stollery v The Greyhound Racing Control Board, since neither of the two stewards concerned was an "accuser" in the relevant sense, since the conduct alleged against the appellant was not directed at either of them, and the inquiry did not arise solely out of what they had themselves observed.
His Honour noted (at 388) that the stewards "started by investigating what was alleged to have occurred"; they then "after deliberation" found him guilty of misconduct; and "after further deliberation they imposed a penalty". His Honour commented: "I do not think that there is anything wrong with this procedure, which is often appropriate to the conduct of inquiries of this sort, and may, indeed, be the only practicable way of proceeding".
Mahoney JA, who was in dissent in Hall, expressed similar views. His Honour noted (at 397) that stewards are contemplated as acting administratively as well as in a quasi-judicial fashion; and that when they exercise their quasi-judicial functions, in the context of an inquiry, they are entitled to act upon their own observation and knowledge. His Honour added that in a proceeding which is of the nature of an inquiry, rather than an adversary procedure, the members of the tribunal may be required more directly to intervene in the obtaining of evidence (ibid). His Honour added (at 398): "There are, however, limits. It is now firmly established that, where a member of the tribunal not merely provides information but acts in substance, as (to use the words used in the cases) accuser, prosecutor or interested party, the tribunal proceedings will be vitiated."
Mr Trainor accepted that the present case did not fall within the principle identified in Dickason v Edwards. His complaint was directed at Mr Prentice having the role of investigator, rather than as being the person who was the victim or object of any alleged misconduct.
In NSW Thoroughbred Racing Board v Waterhouse & Anor (2003) 56 NSWLR 691; [2003] NSWCA 55 at [92], Hodgson JA (with whom Santow JA agreed) expressed the view that, when stewards hold a hearing, they "may rely on their own observations", although "natural justice would require that, at this hearing, the stewards give fair notice to the accused person of the substance of those observations".
In the present case, there is no evidence, or basis to infer, that Mr Prentice has gathered any information from his investigations beyond what has been disclosed to Mr Trainor. For example, the transcripts of the interviews which he has personally conducted with Mr Barron have been disclosed.
At [91], Hodgson JA quoted with approval, and described as "pertinent", the following passage of the judgment of Adam J in R v Brewer; Ex parte Renzella [1973] VR 375 (at 380-381): "What then do the Rules provide relevant to the nature of a Stewards Inquiry and the principles of natural justice? It is the Stewards acting at a race meeting and no others who are to exercise the powers of inquiry conferred under the Rules, AR (8) (d), and to convict and punish offenders. The same Stewards are required to attend at race meetings and to perform what in many respects resemble the function of policemen to watch and observe racing in all its aspects, on the lookout for any improper conduct on the part of participants which may be the subject of a subsequent inquiry to be conducted by themselves.

It is conceded that at such an inquiry, they are entitled, nay bound, to act upon their own personal observations as part of the evidence before their inquiry. It is conceded, too, that if they decide that the evidence warrants charging an offence, then they must formulate the charge and notify the person to be charged of the particulars of the charge. Thus, they must also act as accusers.

As it is their duty after an inquiry to find the charges sustained or otherwise, and if sustained also to impose an appropriate punishment, we are presented under the Rules with a tribunal of a character radically different from that of an ordinary Court of law, but required to exercise powers of a similar nature. It is clearly quite contrary to the ordinary concept of a fair trial that the Judge should also have acted in the role of a policeman and made personal observations on the very matters to be adjudicated upon, that he should himself be the accuser, that he should himself be, as in many instances here must be the case, the principal witness for the prosecution, and entitled, if persuaded by the accuracy of his own personal observations, to act on such evidence, whatever evidence to the contrary may be adduced.

That the Stewards should be empowered to adjudicate under such circumstances offends many of the more elementary Rules of natural justice, the rule, for example, that a Judge must not be a Judge in his own cause and must be in a position to make a detached and impartial adjudication. In substance, the only requirement of natural justice unaffected by the Rules relating to the Stewards and their inquiry, because not therein dealt with, are that the Stewards must give adequate notice to a person charged of the precise charges against him, and a fair opportunity after hearing the evidence against him of making his defence thereto. ..."

Hodgson JA concluded (at [94]-[95]) that the role of the appeal panel established in respect of thoroughbred racing was not limited to correction of error, but instead the panel was able to consider the matter de novo and substitute its own view on a consideration of the material before it. His Honour reached this view based not only on the terms of the rules concerning the appeal panel, but also on the considerations referred to in the passage from R v Brewer set out above, which "suggest to me that the Panel should be able to look at the matter de novo".
In that sense, the appeal panel exists as a level of de novo review precisely because it is well recognised that the stewards act as both investigators and decision-makers in determining the matters which come before them.
In Day v Sanders at [111], Basten JA observed that the Act and the Australian Harness Racing Rules "impose on stewards a wide variety of functions, including expansive controls over owners, trainers and drivers, for disciplinary and occupational health and safety purposes". His Honour continued: "Thus stewards are given control of the day-to-day regulation of harness racing, including the enforcement of rules relating to prohibited substances and disciplinary procedures where contraventions are identified. This scheme is not only inconsistent with a clear division between investigative functions and the exercise of powers to impose penalties for breach, but also envisages speedy determination of any identified breaches."
The principles enunciated in Isbester must be applied in the legal, statutory and factual context described above.
In Isbester, Kiefel, Bell, Keane and Nettle JJ (at [21]) referred to the decision in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345; [2000] HCA 63, and described the approach to be adopted in a case of apprehended bias as follows: "The principle governing cases of possible bias was said in Ebner to require two steps to be taken in its application. The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an 'interest' in litigation, the nature of that interest must be spelled out. The second requires the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits. As Hayne J observed in Jia Legeng, essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making." (footnotes omitted)
Gageler J adopted a similar approach, saying (at [57]): "The test for the appearance of disqualifying bias in an administrative context has often been stated in terms drawn from the test for apprehended bias in a curial context. The test, as so stated, is whether a hypothetical fair-minded observer with knowledge of the statutory framework and factual context might reasonably apprehend that the administrator might not bring an impartial mind to the resolution of the question to be decided. Such statements of the test have nevertheless been accompanied by acknowledgement that the application of this requirement of procedural fairness 'must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making'." (footnotes omitted)
His Honour continued (at [59]-[60]): "… the test for the appearance of disqualifying bias in an administrative context is to be understood to mirror the test for apprehended bias in the curial context in two important respects. The first is that it is an 'objective test of possibility, as distinct from probability'. The second is that its application necessarily involves three analytical steps. Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as the result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way. Where the factor identified at the first analytical step concerns one person who is a participant in a multi-stage decision-making process or in a multi-member decision-making body, the second analytical step can be seen to divide into two elements: articulation of how the identified factor might affect that person individually, and articulation of how that effect on that person individually might in turn affect the ultimate resolution of the question within the overall process of decision-making. It has accordingly been emphasised that, if an appearance of disqualifying bias is hypothesised to have resulted from conduct or circumstances of a person who is not the ultimate decision-maker, 'then the part played by that other person in relation to the decision will be important'." (footnotes omitted)
These principles were applied by the Court of Appeal in Day v Sanders to an inquiry conducted by the stewards of HRNSW. Significantly, they were applied in the context of an inquiry in relation to an alleged contravention of Rule 190, due to a horse being presented for harness racing which tested positive for a prohibited substance. The factual basis for the bias claim in that case arose from a statement by the relevant steward (Mr Sanders) to the trainer (Mr Day), some months prior to the date of the positive results, in which Mr Sanders is said to have assured Mr Day that a trainer who merely used pre-mixed feed and proprietary supplements in accordance with manufacturer's directions would not breach the ceiling for cobalt in urine. This statement was said to have induced a belief in Mr Day that the cobalt levels would not be exceeded unless the horse was given cobalt chloride. Against that background, an apprehension of bias was said by Mr Day to arise in three ways (at [9]): first, there was a dispute as to the terms of the conversation, which meant that Mr Sanders would be a witness at an inquiry; secondly, Mr Sanders would rely on his expertise in deciding whether the trainers' defence (namely that they had used only proprietary supplements and pre-mixed feeds) was tenable; and thirdly, he had already pre-judged that defence, by indicating that it was not tenable.
Basten JA identified (at [97]) that an essential element of the statements from Isbester, extracted above, is, as appeared in the joint reasons, "the articulation of the logical connection between [the interest of the decision-maker] and the feared deviation from the course of deciding the case on its merits".
So far as liability for the contravention of Rule 190 was concerned, his Honour observed (at [98]) that once it has been accepted that proof of liability depended purely upon the two certificates, and that there is no defence based on mistake or lack of awareness of established facts, it was not reasonable to identify any apprehension of bias arising from any prior conduct of the steward concerned (Mr Sanders), with respect to the finding that the charges were proven.
So far as penalty was concerned, a different question arose. The two trainers concerned chose not to present any case in mitigation of penalty, and therefore "there was, again, no relevant fact finding exercise to be undertaken" (at [99]).
Leeming JA considered (at [129]) that a reasonable person would consider that Mr Sanders had formed the view, in advance of the hearing, that the discretion in rule 256(6) of the Rules (namely, not to impose a penalty where an offence is proven) would not be exercised to avoid disqualification, since he had previously made statements to that effect. His Honour observed: "Yet if it were established that Messrs Day or McDowell had indeed followed advice from Harness Racing New South Wales, then there would be at least an arguable case for a favourable exercise of discretion, bearing in mind too that this was a first offence, contrary to a rule which had only recently been created". However, his Honour concluded (at [130]) that, given the trainers' failure to attend the hearings, the occasion for the exercise of discretion never arose.
Simpson JA (at [131]) agreed with the reasons of Basten JA, and also with the additional remarks of Leeming JA.
In the present case, Mr Trainor no longer puts the claim of apprehended bias on the basis that Mr Prentice will likely be a witness at the Inquiry.
The only statements made by Mr Prentice, which were said in submissions to give rise to a reasonable apprehension that he may have already formed a view on liability or penalty, were those contained in his letter to Mr Trainor on 27 April 2021. In particular, Mr Prentice, after informing Mr Trainor of the report from the Australian Racing Forensic Laboratory that Levamisole had been detected in the urine sample taken from Chubby Checker NZ, referred to: "the absolute liability of a trainer for the presence of a prohibited substance" and the "existence of a prima facie case against you based on the certificate from ARFL".
However, the reference to "the absolute liability of a trainer for the presence of a prohibited substance" is simply an accurate statement of the effect of Rule 190(1)-(2), as determined by Day v Sanders. Likewise, the reference to the "existence of a prima facie case against you based on the certificate from ARFL" is an accurate statement of the position under, and reflects the terms of, Rule 191(1), which provides that a certificate from an approved drug testing laboratory certifying the presence of a prohibited substance in a horse's urine "is prima facie evidence of the matters certified".
In his submissions, Mr Trainor relied on the fact that "Mr Prentice was unarguably the lead investigator for HRNSW", and referred to the following "extensive investigation activities": 1. making a recorded interview with Mr Barron on 15 March 2021, in company with Mr Adams, the Chairman of Stewards; 2. receiving information from Mr Barron on 16 March 2021; 3. making arrangements to test Chubby Checker NZ's sample on race day at Menangle on 23 March 2021, and being the point of contact for the Australian Racing Forensic Laboratory; 4. making a decision on 21 April 2021 to request a "confirmatory analysis" of the sample; 5. examining the results of the certificate of analysis dated 22 April 2021; 6. determining, as recorded in his letter to Mr Trainor dated 27 April 2021, to exercise a power to prohibit Chubby Checker NZ from being nominated or competing in any race until the outcome of an inquiry or investigation; 7. forming opinions (which were characterised in Mr Trainor's submissions as Mr Prentice's "opinions of his own"), expressed in the letter of 27 April 2021, regarding the serious nature of the prohibited substance, the absolute liability of a trainer for the presence of a prohibited substance, and the existence of a prima facie case against Mr Trainor as at that date; 8. conducting a recorded interview with Mr Trainor on 28 April 2021, at which Mr Trainor was told that the Stewards were considering suspending his training and driving licences; 9. carrying out on around 28 April 2021 a lengthy search and inspection of Mr Trainor's stable facilities and undertaking what was described in submissions as "a lengthy face to face interrogation" of Mr Trainor; 10. instigating a further interview with Mr Barron (in which Mr Prentice did not participate); and 11. procuring a further certificate of analysis from the Australian Racing Forensic Laboratory, dated 20 July 2022.
I have already addressed the submission that, in his letter of 27 April 2021, Mr Prentice expressed "opinions of his own" to the effect that there was absolute liability for the presence of a prohibited substance, and there was a prima facie case against Mr Trainor based on the certificate recording the results of the analysis of Chubby Checker NZ's urine sample.
The fact that there was a determination that Chubby Checker NZ should not be nominated or compete in any race until the outcome of an inquiry or investigation does not take matters much further. There is no evidence that this was a determination made by Mr Prentice, as opposed to one reported by him. In any case, as set out in Mr Prentice's letter, this determination was made pursuant to Rule 183A. That rule provided that such a determination may be made upon "receipt of a certificate in accordance with Rule 191(1) which establishes prima facie evidence of the presence of a prohibited substance". That is, the power arises immediately upon the receipt of a certificate evidencing a positive result, without the need for any further factual matters to be determined. Further, such a suspension is put in place "until the outcome of an inquiry or investigation by the Stewards into the presence of the prohibited substance". It is a step taken while an investigation takes place, rather than a step which indicates that any view has been formed in advance of any such investigation.
Similarly, the fact that Mr Trainor was told that stewards were considering suspending his training and driving licences does not indicate that Mr Prentice had formed any view in respect of penalty, or as to how any discretion in respect of a penalty should be exercised. It merely conveys that where tests reveal the presence of a prohibited substance, this is one possible outcome, and stewards were investigating whether or not any such penalty should be imposed. Part of the relevant exchange is set out below: "THE CHAIRMAN: Also you need to be aware that the stewards - in relation to yourself the stewards are considering whether to invoke Australian Harness Racing Rule 183. TRAINOR: Yes. THE CHAIRMAN: Which would - partly would result in your licenses being suspended if they did invoke that. TRAINOR: Yes. THE CHAIRMAN: But before any consideration of that rule you have an opportunity to make submissions to the stewards by 4pm on Friday. TRAINOR: Yes. THE CHAIRMAN: Okay? TRAINOR: Yes. THE CHAIRMAN: So I'm assuming that you would want to make submissions. TRAINOR: Yes. THE CHAIRMAN: And I'm assuming you wouldn't want to be suspended. TRAINOR: No. THE CHAIRMAN: So you need to make those submissions ----- TRAINOR: Yes. THE CHAIRMAN: -----and outline the reasons why you believe you shouldn't be suspended. TRAINOR: Yes. THE CHAIRMAN: In relation to the substance levamisole ----- TRAINOR: Yes."
Mr Prentice was, in this exchange, simply putting Mr Trainor on notice that "the stewards are considering whether to invoke Australian Harness Racing Rule 183", which would result in a suspension of his licences, and explaining that before any such consideration would take place, Mr Trainor would be given an opportunity to put before the Inquiry any submissions he would want to make.
Rule 183(d) gives the Stewards a power, pending the outcome of an inquiry or investigation, to direct that a licence be suspended. Significantly, no such power has been exercised in respect of Mr Trainor at any time since Chubby Checker NZ returned a positive test in March 2021. The fact that consideration was given as to whether an interim suspension should be imposed pending the conclusion of an inquiry does not give rise to a reasonable apprehension that Mr Prentice has already formed a view as to whether, after an inquiry has concluded, Mr Trainor should be suspended. That must particularly be so where the power to impose an interim suspension has not in fact been exercised.
As regards Mr Prentice's conduct in requesting tests on urine samples, reviewing the results of those tests, and requesting confirmatory tests on reserve samples, these are routine steps that must be taken before any inquiry is commenced into the presence of any prohibited substance that is revealed by the results of the tests. Otherwise, the complaint is, essentially, that Mr Prentice conducted interviews with Mr Barron and Mr Trainor, and will now chair the Inquiry which concerns the subject matter of those interviews.
Consistently with the passages from the decisions in Hall, Waterhouse and Day v Sanders which are set out above, the fact that Mr Prentice has gathered information which will be before the Inquiry does not provide a sufficient basis for a finding of apprehended bias. Those decisions make clear that, as Mr McGirr acknowledged at the hearing before the Panel on 24 May 2023, it is usual for stewards to undertake investigations, obtain reports, speak to witnesses, and sit on an inquiry in relation to those matters.
Mr Trainor has not, consistently with the principles in Isbester, identified with specificity "what it is said might lead [Mr Prentice] to decide [the Inquiry] other than on its legal and factual merits" or articulated "the logical connection between that interest and the feared deviation from the course of deciding the case on its merits".
It follows that the contention of apprehended bias is not established.
The Defendants submitted that, even if apprehended bias were established, relief should be refused, having regard to Basten JA's observations in Day v Sanders (at [110]) that the statutory scheme of appeals from the decision of a stewards' inquiry "may be seen to provide an exclusive remedy". His Honour identified this conclusion as deriving, first, from the Act and the functions conferred on stewards; secondly, from practical considerations arising from the exercise by stewards of their functions in regulating harness racing; and, thirdly, the provision for appeals under the Racing Appeals Tribunals Act.
In circumstances where I have concluded that the contention of apprehended bias has not been established, I do not consider it necessary or desirable to express views on whether, and if so in what circumstances, relief would be granted where such a contention was established.

Claim of error of law in determination of recusal application

Finally, Mr Trainor contended that the Panel's decision on Mr Trainor's application for Mr Prentice's recusal was vitiated by an error of law, namely, that it was determined by the Panel as a whole. Mr Trainor submitted that, in accordance with the principles outlined in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15, that issue should have been determined, at least in the first instance, by the member of the administrative body who is personally under challenge for apprehended bias. The relief sought by Mr Trainor in his Summons included: "4 A declaration that the purported determination of the Plaintiff's application for the Second Defendant to disqualify himself as a member and its chairman of the Inquiry (Plaintiff's Application) was unlawful in that it was determined by all the members of the Panel and not by the Second Defendant alone. 5 Further or in the alternative to 4, a declaration that the Second Defendant did not validly determine the Plaintiff's Application in that his participation in the Inquiry was not valid and was affected and was vitiated by apparent bias having regard to his positions and roles as investigator his role as a witness in the proceedings before the Inquiry. 6 An order that the ruling purportedly made by the Panel on or about 17 October 2023 be set aside."
In response, the Defendants submitted that the reasoning of the majority in QYFM invoked the particular professional and ethical obligations of judicial officers in determining cases before them (Gordon J at [96]), and that this reasoning was not applicable to stewards; noted that Gordon J observed (at [93]) that there are no "universally applicable rules or procedures" across different courts and tribunals in relation to how an application for recusal should be dealt with (see also [99], [102]); and pointed out that, although the majority in QYFM concluded that it was not an error for the particular judge in relation to whom apprehended bias was said to arise to determine that question, that did not entail the converse proposition that it would be an error for all members of the Full Court to have considered that issue.
In the present case, the four members of the Panel, including Mr Prentice, unanimously determined that the recusal application should be dismissed. That plainly indicated that, if Mr Prentice alone had considered the issue, he would have reached the same result. Senior Counsel for Mr Trainor accepted that there was "little utility in winning on that ground" alone: "The real answer is that it does not achieve very much. Even if it were right."
Given that I have now determined that the contention of apprehended bias has not been established, the question as to whether or not the members of the Panel adopted a flawed procedure in coming to a similar view on the recusal application is of little consequence.
In those circumstances, while I consider that there is force in the Defendants' submissions regarding the reasoning in QYFM, I do not need to express a concluded view on whether it was an error for all of the members of the Panel to consider and determine the recusal application, rather than leaving that issue to be determined, at least in the first instance, by Mr Prentice alone. Even if such an error were established, I would not, for the reasons I have identified, have granted any relief.

Orders

For those reasons, I make the following orders: 1. Order that the Summons filed on 18 October 2023 be dismissed. 2. Order that the Plaintiff pay the Defendants' costs of the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 October 2023

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