McCarthy v Harness Racing New South Wales

1. [1]

   The plaintiff, John McCarthy has been a licensed standardbred driver, trainer, and studmaster in Australia since 1975. Before the incident from which these proceedings are born, he had never been disqualified or had a positive swab for any prohibited substance. The plaintiff estimated that he has had some 15,000 starters during his career.

2. [2]

   The plaintiff, in the position of trainer, presented a horse, ‘Under Worked (NZ)’ (“the horse”), to race at Menangle on 16 October 2018 (“the race”).

3. [3]

   The plaintiff became the trainer of the horse in about May 2018. [1] The horse had been admitted to an equine clinic on 27 April 2018 suffering severe diarrhoea. The treatment lasted five days. There was controversy as to the state of wellness of the horse thereafter and, in particular, in the few days leading up to the race. The plaintiff gave the horse 3 doses of Hemoplex on 3 consecutive days between 11 and 13 October 2018 (there was 2 clear days until the race). [2]

4. [4]

   A race day biological sample (a urine swab) was taken by stewards, tested, and subsequently found to contain cobalt above the threshold level of 100 micrograms per litre in urine. The readings found in laboratories were 250 and 230 micrograms.

5. [5]

   Cobalt is a naturally occurring trace metal that is essential for the horse to metabolise vitamin B12 and is expected to be present in the horse and in natural foodstuffs, commercial feeds and some therapeutic preparations. However, racing authorities have in recent years recognised an issue with excessive cobalt supplementation and, accordingly, a threshold for cobalt detection in equine plasma or urine was imposed under r 188A(2)(k) of the Australian Harness Racing Rules (“AHRR”), namely, cobalt presence in excess of either 100 micrograms per litre in urine or 25 micrograms per litre in plasma is a prohibited substance.

6. [6]

   The Rules of Racing made or adopted by the first defendant, Harness Racing New South Wales, pursuant to s 22 of the Harness Racing Act 2009 (NSW) (“HR Act”) are relevantly contained in the AHRR published by the national body Harness Racing Australia Inc together with Local Rules for New South Wales (these rules shall be referred to as the “Local Rules”).

7. [7]

   AHRR r 256(1) prescribes the consequences of being found “guilty” of “an offence” under the rules as enlivening a discretion to impose one or more of the “penalties” provided by AHRR r 256(2), unless a specific penalty is prescribed by any rule (AHRR r 256(3)) or unless the discretion under AHRR r 256(6) is exercised that “[a]lthough an offence is found proven a conviction need not necessarily be entered or a penalty imposed”.

8. [8]

   The stewards of the first defendant, Harness Racing New South Wales, convened an inquiry after the race and, on 3 May 2019, charged the plaintiff with breach of AHRR r 190(1) for presenting a horse for a race not free of a prohibited substance. [3]

9. [9]

   The stewards particularised that breach as:

10. [10]

    The plaintiff immediately pleaded guilty and maintained that plea throughout that inquiry and subsequent proceedings. The plaintiff did not challenge that the laboratories found readings (cobalt readings in excess of the threshold) in the horse’s system. Two laboratories stated there was evidence of cobalt at or above the threshold level (recorded as 250 and 300 micrograms per litre) in urine taken from a urine swab of the horse (“the laboratory results”). A plasma sample was taken at a later race on 5 November 2018, which was below the threshold (4 micrograms per litre) with a threshold of 25 but much higher than expected by that time.

11. [11]

    The plaintiff gave evidence before the stewards and called expert veterinary evidence of Dr Major (he wrote two reports dated 30 January and 3 September 2019).

12. [12]

    Countervailing evidence was given by Dr Wainscott on 3 May and 12 September 2019.

13. [13]

    On 4 December 2019, the stewards entered a conviction and ordered that the plaintiff be a disqualified person for 12 months.

14. [14]

    On the same day, the plaintiff appealed to the Racing Appeals Tribunal of New South Wales (“the Tribunal”), the second defendant, on the ground of severity. On 30 August 2023, Tribunal upheld the appeal and substituted an order that the plaintiff be a disqualified person for 9 months (“the decision”). The plaintiff had submitted that the matter should be dealt with by exercise of one of the options available to the Tribunal under the AHRR other than disqualification, including caution or reprimand.

The Tribunal

1. [15]

   The Tribunal is constituted under s 5 of the Racing Appeals Tribunal Act 1983 (NSW) (“RATA”). Pursuant to s 16A of the RATA, an appeal to the Tribunal is to be 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. The plaintiff is not required to demonstrate error by the stewards: Costello v Racing Appeals Tribunal [2019] NSWSC 1808 at [9], [32], [49]; McCarthy v NSW Racing Appeals Tribunal [2014] NSWSC 798 (“McCarthy No 1”) at [12]; cf Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124 at [2]; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [20]; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [11]–[15]; Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297G–298A.

2. [16]

   The finding of the Tribunal is adjudicative not inquisitorial: McCarthy No 1at [20] and [63].

3. [17]

   The Tribunal is not a Court. Pursuant to reg 16 of the Racing Appeals Tribunal Regulation 2015 (NSW) (“RATR”), the Tribunal, when hearing an appeal, is not bound by the rules of, or practice as to evidence, but may inform itself of any matter in such a manner as it thinks fit. The Tribunal is not bound to evidence before the stewards and under s 17A of the RATA may dismiss the appeal, vary the decision or substitute any decision that could have been made by the stewards or such other orders as the Tribunal thinks fit.

These Proceedings

1. [18]

   This matter came before this Court in the duty list on 1 September 2023. The plaintiff moved on a Notice of Motion (“the Motion”) filed that day which sought an interlocutory injunction under s 66(4) of the Supreme Court Act 1970 (NSW) restraining the first defendant from acting on or otherwise carrying into effect the decision.

2. [19]

   The Court granted an interlocutory injunction restraining the first defendant from acting on or otherwise carrying into effect the decision until further order and made the proceeding returnable before the Court at 2pm on Monday, 4 September 2023.

3. [20]

   Ultimately, an injunction was granted upon the basis that the matter would proceed to a hearing of an application for judicial review. The interlocutory injunction continues following that hearing to the date of this judgment.

4. [21]

   In the final hearing, Ms VM Heath appeared for the plaintiff (although written submissions were filed by Mr D Dalton SC and Ms VM Heath). The first defendant was represented by Mr O Jones. The Tribunal entered a submitting appearance.

5. [22]

   By an Amended Summons filed on 7 September 2023, the plaintiff sought judicial review of the decision. The plaintiff sought the following orders to quash or set aside the decision of the Tribunal (putting aside the application for an interlocutory injunction):

6. [23]

   The grounds upon which the plaintiff sought relief from the decision under the Amended Summons were as follows:

   1. (1)

      The Tribunal has erred misdirecting itself as to the question of culpability it was required to address and as to the standard of proof of disputed facts and, by inference from the result, must have applied a wrong test with respect to the application of a witness’s credibility to the factual determination. This error is a jurisdictional error and is also error on the face of the record. (“Ground 1”).

   2. (2)

      Further, and in the alternative, the Tribunal’s conclusion is illogical, so illogical as to be irrational, given the Tribunal’s findings as to the evidence of the two experts and upon the findings of fact made by the Tribunal in relation to the plaintiff’s good character and honesty and the facts the Tribunal found to be established on the plaintiff’s case at [218], [219], [220], [221], [223], [225], [226], [228], [229], [230], [315] and rejecting alternative possible sources for the positive swab at [222], [315] and its finding that specific deterrence was not required [274]–[276]. This error is a jurisdictional error and is also error on the face of the record. (“Ground 2”).

   3. (3)

      The Tribunal has impermissibly fettered the exercise of its discretion on penalty and erred in finding that precedent and the Harness New South Wales Penalty Guidelines (2016) (“the penalty guidelines”) operated to require it to determine that no penalty other than disqualification was available despite its finding that specific deterrence was not required [274]–[276] and as such has not effectively exercised its jurisdiction and not provided the plaintiff with procedural fairness. This error is a jurisdictional error and is also error on the face of the record. (“Ground 3”).

7. [24]

   In written and oral submissions, the plaintiff essentially divided the Ground 1 into three separate but related areas. These will be described in more detail later but for present purposes they consisted of contentions that:

   1. (1)

      The Tribunal considered the wrong question of culpability. While the plaintiff submitted he was blameless or of low culpability, and the first defendant submitted that the plaintiff could not prove he was blameless (or had taken every reasonable step to prevent a breach of the rule), the Tribunal was wrong to view its task as to determine culpability as a binary or as a dichotomy between blamelessness and unqualified culpability meriting disqualification. The plaintiff also raised other issues as to culpability discussed below.

   2. (2)

      The Tribunal applied a wrong onus and an erroneous gloss to the applicable standard of proof, stating that "under the Briginshaw principles" the Tribunal must find a comfortable level of satisfaction which it applied to the issue stated at [213] of the decision.

   3. (3)

      By inference from the result, the Tribunal must have applied a wrong test with respect to the application of a witness’s credibility, or failed to apply a correct test, with respect to the application of the plaintiff’s credibility to the factual determination.

8. [25]

   An additional complication in considering the plaintiff’s grounds of appeal arose as a consequence of written submissions filed by the plaintiff as part of a supplementary note pursuant to leave granted by the Court on 14 September 2023 at the close of the hearing of the matter. The leave given by the Court was to address the applicable test for judicial review on the basis of legal unreasonableness, irrationality, or illogicality in a decision-maker’s fact finding process. Outside the scope of that leave, the plaintiff filed on 28 September 2023 submissions going to the merits of the current claim.

9. [26]

   That is not a matter of great moment, as the first defendant appeared able, albeit with complaint, to grapple with the further written submissions. However, one product of those written submissions was that the plaintiff interweaved submissions as to legal unreasonableness, illogicality or irrationality, after the close of oral argument, into not only Ground 2 which expressly dealt with that topic but also Grounds 1 and 3. For example, it was contended that the contentions advanced in support of Ground 1 also sustained a case for legal unreasonableness or at least a species of legal unreasonableness, namely, “cases in which the reasoning process has gone badly wrong”. In this category it was said “the error is either apparent from the reasons or the reasons fail to explain something that is otherwise inexplicable in context: this may include material inconsistency between primary findings or between primary findings and inferences or conclusions or other unexplained or illogical leaps”.

10. [27]

    I will address the way the plaintiff developed these submissions further below but note at this juncture that I will ultimately find that it is unnecessary to grapple with the entirety of the arguments of the parties as to the applicable test for judicial review on the basis of legal unreasonableness, irrationality or illogicality in the decision-makers fact finding process because of my conclusion that the Tribunal’s decision did not involve illogicality or irrationality and its findings cannot be described, when properly understood, as legal unreasonableness either on its face or, as the plaintiff sought to advance, in their submissions.

11. [28]

    This judgment concerns the plaintiff’s application for judicial review, save for the application for interlocutory relief.

The HR Act

1. [29]

   Pursuant to s 22 of the HR Act, the first defendant is empowered to make rules not inconsistent with that Act for or with respect to the control and regulation of harness racing. [5]

2. [30]

   As mentioned earlier, the AHRR are rules made by the national body, Harness Racing Australia Inc, and adopted by the first defendant as published from time to time, pursuant to s 23(2) of the HR Act. [6] As observed by Basten JA in Day v Sanders; Day v Harness Racing New South Wales [2015] NSWCA 324; (2015) 90 NSWLR 764 (“Day (No 2)”) at [23] the AHRR:

3. [31]

   Section 10(2)(i) of the HR Act empowers the first defendant to impose on a person registered by it or the owner of a harness racing horse a penalty for contravention of the rules.

4. [32]

   The AHRR and Local Rules have statutory consequences, and statutory limitations, under ss 10(2)(i), 21, 22 and 23 of the HR Act: Racing New South Wales v Fletcher [2020] NSWCA 9 at [39]–[43]; Golden v V’landys [2016] NSWCA 300; (2016) 339 ALR 610 at [60]–[62]; NSW Thoroughbred Racing Board v Waterhouse & Anor (2003) 56 NSWLR 691 at [35].

5. [33]

   Section 10(2) of the HR Act provides:

6. [34]

   Section 21 and 22 of the HR Act provide as follows:

7. [35]

   Section 21(3) provides that the first defendant may only take action under s 21(1) “for disciplinary purposes or the purposes of work health and safety”.

8. [36]

   In Day (No 1) at [70], Leeming J stated (with whom McColl and Macfarlan JA agreed):

AHRR

1. [37]

   The submissions of the plaintiff adequately describe the applicable rules for this matter and are adopted for the purposes of this judgment.

2. [38]

   The AHRR is set out in 24 parts covering various topics for the organisation and control of harness racing including the appointment, powers and functions of stewards (AHRR Pt 2), licences (AHRR Pt 4) and inquiries and investigations (AHRR Pt 11).

3. [39]

   The language of the rules describes the breach of a rule by a person to whom they apply as an “offence”. As observed in note (2) to the AHRR Dictionary:

4. [40]

   As the note indicates, Pt 14 of the AHRR sets out “general offences”, being various rules regulating conduct at or about harness races or relating to the harness racing industry. AHRR r 255 provides:

5. [41]

   AHRR r 239A provides:

6. [42]

   As noted above, the “offence” provisions are not limited to P 14 of the AHRR, and “offence” provisions occur throughout the rules. The “offence” provisions relevant to this case are in Pt 12, headed “Prohibited Substances” (the relevant rules are addressed specifically below).

7. [43]

   Part 15 of the AHRR deals with penalties. AHRR r 256(1) prescribes the consequences of being found “guilty” of “an offence” under the rules as enlivening a discretion to impose one or more of the “penalties” provided by AHRR r 256(2), unless a specific penalty is prescribed by any rule (r 256(3)) or unless the discretion under AHRR r 256(6) is exercised not to impose a penalty or not to even enter a conviction.

8. [44]

   AHRR r 256 provides as follows:

9. [45]

   AHRR r 309 provides:

10. [46]

    It has been observed this rule generally reflects s 33 of the Interpretation Act 1987 (NSW) and like provisions in other jurisdictions (Day (No 2) at [32] (Basten JA)).

11. [47]

    I accept the submissions of the plaintiff as to the broad objectives of the AHRR are as follows:

12. [48]

    This limitation on the exercise of the power of disqualification and like measures is consonant with the first defendant’s statutory obligation to licence only persons who are fit and proper “having regard to the need to protect the public interest as it relates to the harness racing industry” (s 11, HR Act).

13. [49]

    I also accept the plaintiff’s submissions as to the effect of disqualification:

14. [50]

    Part 12 of the AHRR deals with prohibited substances.

15. [51]

    AHRR r 188 empowers the first defendant to proscribe substances as prohibited under the rules (whether in a horse or otherwise).

16. [52]

    AHRR r 188A defines prohibited substances. As explained in Day (No 1) (at [45]–[47]):

17. [53]

    AHRR r 188A is in the following terms:

18. [54]

    AHRR r 189 empowers harness racing stewards to conduct tests of horses for prohibited substances.

19. [55]

    AHRR r 190 creates an “offence” under the rules for a trainer to present a horse for a race otherwise than free of a prohibited substance (“presentation offence”). This was the offence charged in this case. Rule 190 relevantly provides:

20. [56]

    AHRR r 190 creates an absolute liability offence. No defence of honest and reasonable mistake of fact is available: Day (No 2) at [75] (Basten JA). In proving a breach of the rule, it does not matter how the substance came to be in the horse or the circumstances in which the breach occurred: Day (No 2) at [75] (Basten JA) (see also AHRR r 190(4)). AHRR r 190 imposes on a trainer an “absolute responsibility” [8] .

21. [57]

    Liability may be established by application of the evidentiary certificates rule AHRR r 191 which relevantly provides:

22. [58]

    This means, for example, that for offences which involve detection of a substance that is only prohibited above a quantitative threshold, the certified laboratory detection of an amount of the substance above the threshold will be conclusive evidence of a breach, even if the substance entered the horse only gradually in amounts under the threshold and accumulated in the horse due to the horse’s own idiosyncratic biological processes.

23. [59]

    AHRR r 190B requires a trainer to keep and produce to the stewards on request a logbook of all treatments and substances administered to a horse and all therapeutic substances in his or her possession. No charge was laid under this rule in the present case.

24. [60]

    AHRR r 196A makes it an offence for a person to administer to a horse any prohibited substance for the purpose of affecting the performance of a horse in a race (among other prohibited purposes). No charge was laid under this rule.

Judicial Review

1. [61]

   The parties advanced submissions as judicial review in the present context which, in my view, were sound.

2. [62]

   An application for judicial review is not an occasion for a merits review of the administrative decision below and is strictly limited to grounds that may support relief under s 69 the Supreme Court Act in the nature of prerogative relief, under s 66(1) of the Act in the nature of injunctive relief or under s 75 (or in the Court’s inherent jurisdiction), declarations of right.

3. [63]

   The plaintiff is entitled to succeed whether he demonstrates 'error on the face of the record' or 'jurisdictional error'; there is no privative clause denying remedy for 'mere' error of law (as there was in Quinn v Commonwealth Director of Public Prosecution (2021) 106 NSWLR 154; [2021] NSWCA 294 (“Quinn”)) and any legal error of this Tribunal is jurisdictional in nature because, unlike the Court in Quinn, the RATA does not give the Tribunal authority to decide otherwise than in accordance with the law.

4. [64]

   Further, the plaintiff placed reliance upon James McDonald v Racing New South Wales [2017] NSWSC 1511. In that case, Rein J (at [77]) laid down principles regarding judicial review of the imposition of a penalty by a Tribunal exercising power in a comparable jurisdiction to the present as follows:

5. [65]

   No jurisdictional error or error of law occurs if the decision-maker makes a mere error of fact, without more, when considering the evidence in the course of deciding an issue arising in the matter. This is because decision-makers tasked with deciding a question on its merits are entitled to make errors of fact within jurisdiction. [9] The “merits” of an exercise of administrative power include the lawful exercise of the power, even if it involves “administrative injustice” or mere “error”: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439 (“ABT17”) at [124] (Edelman J).

6. [66]

   Three further matters, as to judicial review, should be mentioned at this juncture:

   1. (1)

      In determining whether the Tribunal has engaged in jurisdictional error or made an error of law, consideration should be given as to how the plaintiff advanced its case before the Tribunal. This consideration is important in this matter. Jurisdictional error or error of law cannot arise from a failure by a decision-maker to consider or address an argument that was never put to it: AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 at [12] (Basten JA); Azzi v State of New South Wales [2023] NSWSC 1028 at [51] (Adamson JA); Elnduct Systems Pty Ltd v 3D Safety Services Pty Ltd [2015] NSWCA 284; (2015) 90 NSWLR 451 at [114]. Gleeson CJ said in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (“S395”) at [l]:

   2. (2)

      The jurisdiction of the Tribunal, constituted (as in this case) by Mr D B Armati, was regularly invoked. Mr Armati is a former magistrate. As with any decision the subject of judicial review, the reasons of the Tribunal must be read as a whole and the Court should not be too concerned with "looseness of language" or "unhappy phrasing". Nor should the reasons of the Tribunal be "construed minutely and finely with an eye keenly attuned to the perceptions of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [272] (Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ).

   3. (3)

      In the case of determining penalties, as in sentencing, the function of forming an opinion as to the penalty that ought to be imposed requires the Tribunal to undertake the process of "instinctive synthesis" described by McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (“Markarian”) at [51]:

The Decision

1. [67]

   The Tribunal commenced its decision by noting that it was considering a severity appeal only. It noted the grounds of appeal recorded the only ground being the penalty was excessive.

2. [68]

   The Tribunal then identified the issues between the experts requiring consideration, each of which concerned explanations for the level of cobalt detected in the horse as follows:

3. [69]

   At the same time the Tribunal identified issues which were not pressed in that respect as follows:

4. [70]

   Under the heading “Issues” the Tribunal discussed the issues presented to it by the parties as follows:

5. [71]

   The Tribunal stated counsel for the plaintiff identified three options [10] which were before the stewards which reduced to two before the Tribunal (the third was no longer pressed). Those options were said to be encompassed by the list of issues set out above (presumably) a reference to the issues appearing in [68] of the judgment. Those options were as follows:

6. [72]

   I note that the plaintiff referred to various passages of the decision when the Tribunal made favourable findings concerning the plaintiff (which related to his case on credibility as set out in [14] and [15] of the decision extracted above). Those paragraphs of the decision will be extracted below because they also concern other aspects of the appeal. For present purposes I note the plaintiff relied upon passages [215]; [217]-[219]; [220]-[223]; [225]-[227] and [229]-[231] of the decision in that respect. [11]

7. [73]

   Before coming to those passages some other aspects of the decision should be mentioned.

8. [74]

   At [40] and [42]-[61], the Tribunal made finding as to background facts as follows:

9. [75]

   The Tribunal traversed the expert evidence of Dr Major of 31 January and 3 September 2019 (Dr Major was not called before the stewards) and Dr Wainscott of 3 and 17 September 2019 and by a report of 6 August 2021 as to outstanding issues at [62]–[118] of the decision.

10. [76]

    Some of the Tribunal’s findings, in that respect, warrant specific mention:

11. [77]

    There then followed a summary of the submissions of the parties before the Tribunal (at [119]–[212]) before what appeared under the heading ‘Discussion’. Those considerations may be distinguished from those given with respect to penalty which commenced under a heading dealing with that topic immediately after paragraph [264] of the decision.

12. [78]

    The ‘Discussion’ section of the judgment commenced with a mention of Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (“Briginshaw”) and noted in that respect that the Tribunal must reach a comfortable level of satisfaction in its determination. The Tribunal then returned to the issues in the proceedings as follows:

13. [79]

    The Tribunal made a series of findings which concerned the character or credibility of the plaintiff:

14. [80]

    The Tribunal then proceeded to examine the administration reports to which Dr Wainscott referred. The Tribunal referred to the nature of those studies and various arguments about the same as follows:

15. [81]

    The Tribunal’s conclusion in that respect were as follows:

16. [82]

    The Tribunal conclusions before turning to penalty were as follows:

17. [83]

    The Tribunal then turned to penalty having regard to the issues on the appeal. It is sufficient to refer to the following paragraphs of the Tribunal decision in that respect as follows:

GROUNDS OF APPEAL

1. [84]

   The plaintiff identified at a level of generality that his case was constituted by 5 primary errors: treating the categories in McDonough ([2008] VRAT 6, unrep) (“McDonough”) as an a priori inflexible rule (review Grounds 1 and 3), requiring proof of matters that legally did not need to be determined (Grounds 1 and 3), fettering the exercise by fixing a penalty starting point based on the erroneous categorisation (Ground 3), viewing culpability as a binary (Ground 1) and expressly and implicitly excluding consideration of the full range of options under AHRR r 256 (Ground 3). However, that broad description could lead to oversimplification of the plaintiff’s case and needs to be supplemented by a summary of the plaintiff’s submissions, particularly as to legal unreasonableness, irrationality and illogicality which I have earlier referred to and which will be expanded upon below.

GROUND 1

1. [85]

   In broad terms, the plaintiff accepted that there was an overlap between the respective grounds. In Ground 1, the plaintiff relied upon three errors by the Tribunal resulting in jurisdictional error: the Tribunal asked itself the wrong question about culpability; it answered the question with too much stringency and its findings as to credibility were not reflected in the outcome of the proceedings.

2. [86]

   The plaintiff's particular submissions in that respect were as follows:

   1. (1)

      The Tribunal considered the wrong question of culpability. While the plaintiff submitted he was blameless (at [235]) or of low culpability, and the first defendant submitted that the plaintiff could not prove he was blameless (at [237]) or had taken every reasonable step to prevent a breach of the rule, the Tribunal was wrong to view its task as to determine culpability as a binary or as a dichotomy between blamelessness and unqualified culpability meriting disqualification. Assessment of culpability required an open-minded assessment of all the facts relevant to the moral blameworthiness of the plaintiff’s conduct, including that culpability may not be an absolute and that conduct might be blameless or on a spectrum that tended towards blamelessness or very low moral culpability.

   2. (2)

      The Tribunal asked itself a second wrong question on culpability to the effect that the plaintiff had to positively “explain the reading” (at [260], [261] and [272]) as opposed to explaining his conduct and the facts and circumstances of the offending in respect of any matter he wanted to call to the Tribunal’s attention and that was contested.

   3. (3)

      The Tribunal was wrong to view determination of culpability as requiring a choice between stark alternatives that the ‘cause’ of the positive swab was known but guilty, unknown (and presumed guilty) or known and blameless. In any event, determining culpability did not depend on determination of the scientific explanation of the mechanism, although that could be relevant. It was wrong to draw such an inflexible division.

   4. (4)

      The Tribunal erred in holding the plaintiff had to “demonstrate how the positive swab came about” in the sense of proving the scientific cause rather than giving an acceptable account of his own conduct (as illustrated in McDonough when properly understood).

   5. (5)

      The Tribunal accepted the plaintiff only gave the horse what he said he did, when he said he did and for the proper reasons he gave and the Tribunal had excluded from availability the only other alternatives of environmental exposure [12] or third party action.

   6. (6)

      Alternatively, the plaintiff submitted that no other source of cobalt was open, and the plaintiff's innocent conduct was the only available cause if the source of the substance was unknown.

   7. (7)

      Or to the extent such classification was simply informative.

   8. (8)

      Correctly applying what his Honour Judge Williams said in McDonough, culpability had to be considered as a matter of degree on the facts and in the circumstances of a particular case. The error of the Tribunal was to misuse McDonough to constrain it as seeing the matter as black and white, rather than to consider shades of grey.

   9. (9)

      Counsel for the plaintiff made the following submissions re McDonough:

   10. (10)

       The plaintiff’s submissions referred to the availability of not entering a conviction as appropriate given the additional factor of good character and otherwise asked for consideration of a reprimand or caution or a short period of suspension. That is, the plaintiff’s submissions suggested the availability of gradations of finding in respect to culpability that required the Tribunal to consider the grey. This is not, as the first defendant suggests, some new case put on review.

   11. (11)

       It is true that there was not an identified dispute about principle in the submissions the parties made. However, the error has emerged from the Tribunal’s decision.

   12. (12)

       Further in S395, Gleeson CJ identified (at [11]–[14]) that the appellant sought to make a case on a quite different factual basis that would have required different evidence and entirely different considerations. That is not the position here. In this case, the plaintiff identified legal errors in how the Tribunal purported to engage in its statutory task, which was to stand in the shoes of the decision-maker and decide for itself whether a conviction should be recorded, and any penalty that should be imposed and if so what penalty. There is no new factual case and no new legal case put by the plaintiff here. The plaintiff did not urge on the Tribunal any wrong view of the facts or the law; the plaintiff’s written submissions below did not suggest or urge on it the errors now identified in the Tribunal’s reasons.

   13. (13)

       The Tribunal was right to say that it was “required to find a penalty appropriate to the facts and circumstances” but talismanic incantation of or reference to a correct test or description of its task does not avoid the error indicated by the rest of that passage in [265]. If the Tribunal had only said the portion emphasised by the first defendant, or had it actually acted only on that injunction, it would not have fallen into error. The passage before and after the emphasis demonstrates five of the errors of which the plaintiff complains.

   14. (14)

       An environmental source was not an open or available conclusion because the Tribunal determined that it be disregarded.

   15. (15)

       The issue in this case is that the Tribunal did accept the plaintiff’s evidence of his conduct, which was the only relevant issue, and by doing so excluded any other cause of the breach (having already determined to disregard environmental or third-party sources).

   16. (1)

       The Tribunal placed a demand on the plaintiff’s evidence of some additional stringency in its quality. The “Briginshaw considerations” had no application to anything the plaintiff sought to prove and it was an error of law for the Tribunal to decide that they did. Day (No 2) provides no support for such application, nor does anything in the HR Act, the AHRR, Day (No 1) or any other previous case considering these rules.

   17. (2)

       The first defendant bore the onus of proof to establish any contested fact adverse to the plaintiff on penalty, including any matter capable of being construed as one of aggravation or bearing on the seriousness of the offence or reflecting the need for general or specific deterrence: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [25] (“Olbrich”). Any such adverse fact had to be established on the balance of probabilities but bearing in mind the considerations of cogency of evidence referred to in Briginshaw as necessary to actually persuade the Tribunal of a fact that was alleged to constitute or be integral to serious misconduct.

   18. (3)

       The plaintiff bore the onus of proof to establish any contested fact he wished to call to the Tribunal’s attention in mitigation of the offence, including subjective factors personal to himself: Olbrich at [25]. Any such fact had to be established on the balance of probabilities. The Briginshaw considerations do not arise in respect of that evidence.

   19. (4)

       The Tribunal applied a wrong onus and an erroneous gloss to the applicable standard of proof, stating that “under the Briginshaw principles” the Tribunal must find a comfortable level of satisfaction which it applied to the issue stated at [213] of the decision.

   20. (5)

       While it is true that to make a finding of fact the Tribunal must actually be persuaded of its existence and that it is not a matter of mere mathematics, what is necessary to persuade depends on the purpose for which the finding is made (Briginshaw at [361] and [361]–[368]). The requirement of a high degree of cogency of evidence required to persuade a Tribunal of fact of serious misconduct that a person would ordinarily be unlikely to commit is not an applicable consideration on a finding about a fact, whether contested or uncontested, that a person brings forward in explanation or mitigation of a breach. The ordinary civil standard of the balance of probabilities applies with no gloss or principle that some additional cogency is to be looked for in the evidence.

   21. (6)

       The “reasonableness” element of the standard of proof requires attention to the context and consequences of the allegation to be proved. As McHugh J observed (in dissent but not on this point) in cases of very serious allegations in civil cases, the Briginshaw considerations will require satisfaction by a quality of proof almost as high as in a criminal case: Azzopardi v The Queen (2001) 205 CLR 50 at [114]. But such observations have no application to the proof of facts and matters raised by a penitent to be taken into account in explanation or mitigation on the determination of penalty.

   22. (7)

       The Tribunal’s framing of the fact finding process misled the Tribunal into a false narrative that it was necessary that all disputed issues of fact be resolved for or against the plaintiff: Weininger v The Queen (2003) 212 CLR 629 at [19].

   23. (8)

       In the context of the Tribunal’s multiple inapposite references to Briginshaw, or “the requisite standard” and cognate expressions regarding comfortable satisfaction (at [213]-[214] and [237]), the Tribunal’s failure to accept the plaintiff’s expert’s positive opinion that was fortified by relevant concessions by the first defendant’s expert leads to an inference that the Tribunal did not apply a correct standard of proof on such facts as the plaintiff did seek to prove.

   24. (9)

       As to the first defendant’s submissions that the issue of onus and standard of proof was not rehearsed by the plaintiff before the Tribunal, it was conceded that the plaintiff did accept below, in oral submissions, that Briginshaw would be applied by the Tribunal, “but only in its terms and not to anything to which, by its terms, it is inapplicable or by creating an impermissible third standard of proof or casting some additional onus or burden on the plaintiff”. [13]

   25. (10)

       Dr Wainscott’s evidence was not put by the first defendant merely to negative the plaintiff’s scientific theory but also to positively support an argument of aggravation, whether by deliberate conduct or some negligence. [14]

   26. (11)

       Senior counsel contended that, in McDonough, the positive reading was caused in innocent circumstances given the limited studies regarding boldenone withholding and elimination periods. The regulator’s expert opinion in that case was to the effect that, while not agreeing with the trainer’s analysis, it was accepted that delayed elimination could not be ruled out (as in this case).The Judge found that because of the positive inference to be drawn from the appellant’s good character (as here) the breach was not caused by the fault of the trainer, who was accepted at his word, even though the trainer had no knowledge at all of how the boldenone came to be in the horse and the Judge held the boldenone probably entered the horse during his care.

   27. (12)

       This argument both negatived the first defendant’s case of aggravation and raised the plaintiff’s case of mitigation. The plaintiff’s argument below did not involve the application of any quality of proof requirement against the plaintiff, only the first defendant, and was otherwise consistent with the actual principles in Briginshaw and as explained by the later cases referred to in chief.

   28. (1)

       By inference from the result, the Tribunal must have applied a wrong test with respect to the application of a witness’s credibility, or failed to apply a correct test, with respect to the application of the plaintiff’s credibility to the factual determination: Attwood v The Queen (1960) 102 CLR 353 at 359; and McDonough.

   29. (2)

       The plaintiff submitted:

   30. (3)

       The first defendant’s expert’s theory that the plaintiff had deliberately dosed the horse with undisclosed cobalt at different times than he said (at [82] and [87]) was rejected by the Tribunal for good reason given both the concessions he had made that were undermining of that opinion and the Tribunal’s acceptance of the plaintiff’s good character and credit as requiring that “he is to be accepted where issues of fact are grey” (at [219]–[220] and [222]).

   31. (4)

       Further, both experts conceded the state of scientific knowledge was still developing and the first defendant’s expert conceded he could not exclude the plaintiff’s expert’s opinion (at [95]).

   32. (5)

       The Tribunal’s purported later reversal of its earlier findings at [253]–[254], [263] must have involved a failure to carry through the Tribunal’s credibility findings with respect to the plaintiff, including as to any ”grey areas” to its assessment of the expert evidence that depended on acceptance or rejection of the plaintiff’s evidence, and a failure to apply the Tribunal’s highly (and, indeed, conclusively) favourable credit findings to the determination of guilt in the sense of culpability as principle requires.

3. [87]

   As to Ground 1, the first defendant submitted as follows:

   1. (1)

      The plaintiff appeared to challenge the Tribunal's reference to and consideration of the "McDonough categories" in determining the penalty appropriate in his case. He contended that, by applying those categories, the Tribunal asked itself a "wrong question".

   2. (2)

      The plaintiff did not contend during any part of his hearing before the Tribunal that the McDonough categories were irrelevant or should not be applied. To the contrary:

   3. (3)

      As a result, pursuant to the well-established approach identified by Gleeson CJ in S395, it is not open to the plaintiff to contend that the Tribunal committed an error of law or jurisdictional error in utilising the McDonough categories in the way that it did.

   4. (4)

      There is no basis to conclude that the Tribunal adopted a binary approach in which it did not consider all facts relevant to moral blameworthiness.

   5. (5)

      Consistent with the Tribunal’s decision to determine whether the plaintiff fell into Category 3 of the McDonough principles, having considered the McDonough categories, the Tribunal then said at [265] of the decision:

   6. (6)

      This makes it clear that the Tribunal was seeking to evaluate an "appropriate" penalty by reference to all of the "facts and circumstances" of the particular case.

   7. (7)

      The Tribunal's approach in this regard was consistent with many previous cases in which it has considered and applied the McDonough categories (which were relied on by the first defendant in its submissions to the Tribunal). For example, in Turner v Harness Racing NSW (NSW RAT, 25 November 2020), the Tribunal observed that the McDonough categories were to be "taken into account" (at [86]) in making an assessment of all of the "facts and circumstances" of the particular case (at [17]).

   8. (8)

      It is not possible to conclude from the Tribunal's reasons, read fairly, that the Tribunal adopted an unlawful approach.

   9. (9)

      The plaintiff further contended that that only conclusion open to the Tribunal was that the positive swab occurred for the reasons advanced by the plaintiff. The first defendant submitted that this was not correct for the following reasons:

   10. (1)

       The argument by the plaintiff that the Tribunal erred in law, or committed a jurisdictional error, by its reference to “Briginshaw considerations” in its assessment of whether the plaintiff had established what had caused the positive swab is misconceived for the following reasons:

   11. (1)

       The first defendant contended that the plaintiff's contentions in this respect unfairly reflect the reasoning of the Tribunal which does not contain contradictions suggested by the plaintiff.

Consideration: Ground 1

1. [88]

   It may be accepted that, if the Tribunal applied a wrong legal test, or failed to apply a correct legal test as contended by the plaintiff, there would be jurisdictional error because the wrong test would lead the Tribunal to effectively not exercise its jurisdiction: Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [67]–[68]; Australian Rail Tram and Bus Industry Union v Aurizon Operations Ltd [2023] NSWSC 484 at [180]–[184] (Walton J); Kavanagh v Racing NSW [2019] NSWSC 40 at [40]–[44] (Fagan J) (“Kavanagh”). However, in my view, the plaintiff has failed to demonstrate jurisdictional error upon the bases relied upon in Ground 1, noting that the Ground had three limbs.

2. [89]

   AHRR r 190(2) imposed an absolute responsibility upon the plaintiff to present the horse to the race free of prohibited substances. He had possession and control of the horse at all relevant times. As the plaintiff presented the horse on 16 October 2018 contrary to that condition, as demonstrated by, inter alia, the laboratory results and his plea. He was guilty of an offence under that rule.

3. [90]

   As earlier mentioned, no defence of honest and reasonable mistake of fact is available under AHRR r 190 nor does the rule permit a defence of reasonable precautions. AHRR r 190(4) provides that the offence is committed via trainer under r 190(2), regardless of the circumstances in which the prohibited substance came to be present in or on the horse.

4. [91]

   The strictness of the provisions of AHRR r 190 reflects the seriousness of the presentation of horses with prohibited substances, in this case cobalt (see AHRR r 188A(2)(k); Day (No 2) at [79] (Basten JA)).

5. [92]

   Whilst irrelevant to the question of liability, the state of mind of the plaintiff and the reasonableness of his conduct were relevant to the assessment of penalty; Day (No 2) (at [88] (Basten JA)).

6. [93]

   The McDonough categories referred to in the submissions of the parties arose from the decision of Judge Williams presiding in the Victorian Racing Appeals Tribunal (“VRAT”) with two advisors in McDonough. In that matter, Mr McDonough, the trainer of a horse called Captain Cullen, was found guilty by the stewards of breaching AHRR r 190(1) and 190(2) and a penalty was imposed of 6 months disqualification. A urine test after a race had found a positive test for Boldenone which is a steroid and a prohibited substance. Mr McDonough appealed to the VRAT.

7. [94]

   In substance, Mr McDonough stated that he did not administer Boldenone to the horse at any time and that he had no knowledge of that drug, notwithstanding that he, and no one else had, possession and control of the horse for the relevant period over which the horse raced including the race after which the swab producing a positive result was taken.

8. [95]

   A controversy in those proceedings was the “poverty of information” as to the withdrawal times of Boldenone and evidence that the drug was designed to stay in the body for a considerable time.

9. [96]

   The VRAT did not ultimately resolve the question of a withdrawal time, and, in particular, did not apply a withdrawal time in such a way as would indicate the trainer was responsible for the administration of the prohibited substance.

10. [97]

    After considering Mr McDonough’s conduct and behaviour after the positive result, the VRAT concluded that he had “satisfied us on the Briginshaw standard that he was not personally responsible for the administration of the drug either by himself administering it or by having someone administer it on his behalf. Therefore, although he is guilty technically of the offence, he has no true moral culpability in relation to its perpetration” (McDonough, at 7).

11. [98]

    It was after this conclusion that the VRAT indicated that it would “divert for a short time and make some general observations in this area of strict liability offences and this is of course a strict liability offence” (McDonough, at 7). Reference was made to the offence being previously the subject of a “reasonable precaution defence” although the onus remained on the trainer to avail himself of that defence.

12. [99]

    It was from that springboard that the VRAT turned to the question of the assessment of penalty wherein the following observations were made (at 8):

    1. (1)

       Even though it is no defence that the trainer did not himself administer the prohibited drug or that the trainer had taken reasonable precautions to prevent it, the trainer may demonstrate in an appeal that he lacks culpability because he did not administer the substance himself or that he was not responsible in any way for its administration. This was described as “a significant factor in terms of penalty”.

    2. (2)

       The evidentiary onus remained on the trainer to avail himself of the benefits of proof of “reduced or absent culpability”. Reliance was placed in that respect upon “the criminal law” and the judgment of his Honour Mr Barry Thorley in NSW Authority v Graeme Rogerson (Racing Appeals Reports, August 2007, Issue 48 at 5085).

13. [100]

    It was at that juncture that the VRAT turned its attention to what are now known as the McDonough categories; the first defendant indicating that many Tribunal’s cases now consider and apply the McDonough categories.

14. [101]

    Before turning to the content of those categories, it is important to emphasise the way in which the VRAT approached them in McDonough. First, the VRAT emphasised that the discussion of categories was undertaken in the context of the preceding discussion of assessing penalties, and in that respect, culpability within the area of a strict liability offence. Secondly, the VRAT was emphatic that it was not purporting to erect a rigid taxonomy for the assessment of penalties for prohibited substance cases. Judge Williams stated: “with this background these prohibited substance cases generally, and I emphasise generally, fall into one of three categories” (at 9).

15. [102]

    The three categories which were identified in that respect were as follows:

    1. (1)

       The Category 1 was as follows (at 9):

    2. (2)

       The Category 2, which was described as “the most commonly experienced scenario” was described as (at 9):

    3. (3)

       This category was described as commonly arising where the stewards “have no idea as to how it is in the case of any horse race that the prohibited substance came to be in it”. The Tribunal indicated that it is possible to speculate on the many ways that a horse may present with a prohibited substance and that “[the] number of examples one can contemplate is manifold” (at 9-10).

    4. (4)

       Category 3 was described as follows (at 10):

16. [103]

    The VRAT then indicated that the more serious offence carrying the higher penalties was Category 1. Category 3 was categorised as involving “little or no culpability”. In that case, it was observed, it may be appropriate that the sentence did not express denunciation and general deterrence or that no penalty may be imposed at all.

17. [104]

    As to Category 2, the VRAT stated that the penalty assessment “may or may not end up being similar to the first category, every case depending on its own individual facts” (at 11).

18. [105]

    The VRAT found:

    1. (1)

       The case fell into Category 3.

    2. (2)

       The trainer did not administer or arrange for the administration of the prohibited substance.

    3. (3)

       The question nonetheless remained as to whether the trainer had undertaken appropriate precautions including testing his horse before it raced. In that respect the VRAT took into account that the trainer had received the horse from New Zealand and “then from Mr Siberras in all good faith and anticipating the almost certainty that it would not be negatively effected by any substance, and the fact that he then raised it twice, admittedly without any tests being done but without any indication anyway of any abnormality” (at 12). It would be expecting too much for a further test to be done in these circumstances before a race proximate in time.

    4. (4)

       Ultimately, the trainer was not disqualified with the VRAT describing the case as “unusual”, “one that would probably not frequently be encountered” and not representing a case “having a broad precedent value” (at 12).

19. [106]

    The McDonough categories are not enshrined in legislation, and it would be erroneous to treat them in that fashion or to confine the assessment of penalty in a prohibited substance case to the four walls of those categories. However, if the categories were applied in the fashion identified by the VRAT in McDonough, without application as a rigid taxonomy and as a general guide to questions of culpability that might arise in such cases, then I do not consider there to be an error of law in taking into account the McDonough categories as part of the assessment of all of the facts and circumstances relevant to the assessment of an appropriate penalty in the case of a breach of AHRR r 190: Greyhound Welfare and Integrity Commission v Bell [2023] NSWSC 1150 at [100] (Adams J). I do not understand the plaintiff to suggest otherwise in this case and, in any event, as the first defendant correctly pointed out, as summarised above, no contrary statement of principle was advanced to the Tribunal.

20. [107]

    Even though there might be some infelicity of language used by the Tribunal, in my view, it did not approach the assessment of penalty erroneously by the application of the McDonough categories. Its approach does not treat the McDonough categories as being other than informative in the assessment of penalty and certainly not as a rigid taxonomy.

21. [108]

    The Tribunal did not approach the task of determining culpability in a binary fashion but rather, having reached a conclusion that the plaintiff’s conduct did not fall within Category 3, proceeded to determine the appropriate penalty by reference to all the facts and circumstances of the particular case (at [265]). It may be recalled that the McDonough categories themselves accepted, that where there was no explanation for the prohibited substance being in the horse when presented, the assessment of penalty was an open one in which the number of potential examples of conduct were “manifold” and “every case [depended] on its own individual facts”. That approach did not involve, as the first defendant contended, a rule that, failing the establishment of blamelessness or “little or no culpability under category three” there must follow, “unqualified culpability meriting disqualification”.

22. [109]

    Having decided that it would turn to the assessment of penalty under Category 2, the Tribunal identified that it would evaluate an “appropriate penalty” (at [265]). It emphasised that the critical factor was to find a penalty based upon “the actual conduct established against the appellant and the facts and circumstances of [the] case” (at [268]). The latter part of [265] should be properly understood as indicating that the penalty indicated by the assessment of the facts of the case, after examining whether Category 3 applied, did not warrant the imposition of no penalty or a penalty that was “very small”. The Tribunal did not turn in the passage to a disqualification as such.

23. [110]

    This is indicated by the following paragraphs and the heading “Penalty” in which the question of the operation of the penalty guidelines was qualified by the approach adopted in [268] of the decision expressed as follows: “The more critical factor here is to find a penalty based upon the actual conduct established against the appellant and the facts and circumstances of the case…”. It should also be noted that that paragraph is introduced by [267] which indicates that the Tribunal had considered it unnecessarily distils the principles applicable to the application of the penalty guidelines.

24. [111]

    Further, the references by the Tribunal in pars [260], [261] and [272] of the decision concerning the readings from the samples taken from the horse being unexplained are no more than references to a Category 2 criteria in which the basis for the prohibited substance being found in the horse was unknown. This did not avoid a consideration of the plaintiff’s conduct other than noting that his conduct in presenting the horse needed to be assessed in that light.

25. [112]

    In any event, the plaintiff not only accepted the reliance by the first defendant before the Tribunal upon the McDonough categories but accepted the relevance and applicability of those categories contending that he fell within Category 3. It was also contended by the plaintiff before the Tribunal, that, in the absence of the Tribunal accepting the plaintiff fell into Category 3, that a particular approach should be taken with sentencing having regard to Category 2. Thus, Mr David Dalton SC submitted before the Tribunal on 23 August 2023 (at 8):

26. [113]

    Slightly later in the transcript of the Tribunal proceedings, Mr Dalton stated (at 23):

27. [114]

    Finally, at page 24 of the transcript Mr Dalton submitted:

28. [115]

    In his submissions to this Court on 1 September 2023 (prior to his change in counsel and noting that the plaintiff’s original counsel appeared for him at the Tribunal), the plaintiff submitted " that in all circumstances, and by applying the appropriate Briginshaw standard, the Plaintiff had established that he should be dealt with under Category 3 [of the McDonough categories]."

29. [116]

    The first defendant was correct to submit that there was before the Tribunal, common ground as to the legal principles to be applied as follows:

    1. (1)

       The McDonough categories could and should be applied by the Tribunal;

    2. (2)

       It was for the plaintiff to establish that he fell within Category 3, namely, that he was blameless;

    3. (3)

       The Briginshaw considerations were to be applied when determining whether the plaintiff had discharged that onus (I will return to this consideration);

    4. (4)

       If the plaintiff could not prove that he was blameless then he would fall within Category 2; and

    5. (5)

       The fact that the plaintiff fell into Category 2 was a matter that had to be taken into account in determining penalty.

30. [117]

    This is precisely how the Tribunal approached its consideration. It recognised the common structure for determination proposed by the parties with respect to the McDonough categories at [15]. It recognised the manner in which the plaintiff had approached his case through senior counsel in oral submissions at [201]. The Tribunal then structured its judgment accordingly by first determining how McDonough categories might operate under the heading ’Discussion’ and then applying that consideration as part of the consideration of penalty in the light of all of the facts and circumstances of the case (see [215] under the heading ‘Penalty’).

31. [118]

    Thus, the Tribunal recognised that the first issue to be considered was whether the plaintiff could prove (with the onus of proof upon him) “that he should be assessed for penalty under the McDonough category 3 principles on the basis he was blameless or there was nothing else he could reasonably do” (at [214]). The Tribunal then found, prior to the ultimate determination of the appropriate penalty, that the plaintiff had, as earlier discussed, “failed to establish to a level of comfortable satisfaction that he was blameless or that there was nothing else he could have done to have prevented the positive” (at [262]).

32. [119]

    In my view, the first defendant is correct to submit that the principles in S395 are applicable in this case because the decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an “entirely different basis”, which may occur to the applicant's lawyers at some later stage. Some jurisdictional error or an error of law cannot arise from a failure by a decision-maker to consider an argument that was not put to it.

33. [120]

    The plaintiff sought to distinguish those principles by submitting there was no new factual case or no new legal case being advanced by the plaintiff, and that the Tribunal had not been urged to take a wrong view of the facts or law. Upon my earlier analysis, the second of those propositions is in substance correct when the manner in which the respective cases were put and the Tribunal's consideration of them was properly understood. However, it is wrong to submit that the plaintiff is not here advancing a different factual case because at the core of the McDonough categories is the consideration of the factual circumstances going to the assessment of culpability as part of the overall sentencing process and the determination of penalty.

34. [121]

    The plaintiff alternatively submitted that the Tribunal’s findings had excluded any source of the breach other than the plaintiff’s blameless use of a legitimate therapeutic for a reasonable and proper purpose at proper times and doses. The Tribunal’s findings that the plaintiff only gave the horse what he said he did when he said he did for the reasons he said he did and that environmental exposure or third-party action were rejected as unavailable explanations, the only available conclusion was that the plaintiff’s conduct caused the breach, but he was blameless or of low culpability. As there was no other source of cobalt open, the plaintiff’s innocent conduct was the only available cause, even if the exact mechanism was not accepted by the Tribunal to be understood.

35. [122]

    However, I do not accept the plaintiff's alternative contention that the only conclusion open to the Tribunal was that the positive swab occurred for the reasons advanced by the plaintiff for the following reasons based upon the findings of the Tribunal:

    1. (1)

       Dr Major who had been called by the plaintiff expressed a view essentially that the horse was ill at around the time of the race and the cobalt contained within the Hemoplex would not have been processed out of the horse in the usual way because of accumulation. Dr Wainscott did not accept that the horse was ill and, in that context, relied upon administration studies that showed a particular rate of cobalt moving out of a horse after its administration.

    2. (2)

       In substance, the Tribunal accepted Dr Wainscott's evaluation of the state of the horse at or about the time of the race and his use of administration studies. The Tribunal found:

    3. (3)

       In relation to possible environmental exposure, the Tribunal did not rule this out or reject it as a possibility. Rather, it said at [259] of the decision that “Nothing about the environment as a contributing factor has been factually established”. That is, the Tribunal found that it had not been established that the environment was a contributing factor, not that it definitively was not a factor.

    4. (4)

       In relation to administration by a person unknown, the Tribunal again did not rule this out or reject it as a possibility. Rather, it said at [172] of the decision that it was not the subject of submissions or canvassed by the evidence, such that the Tribunal could not further examine it. That is, the Tribunal did not reach a conclusion on the involvement of a third person one way or the other.

36. [123]

    The aforementioned findings of the Tribunal were findings of fact. I will later discuss, after considering the plaintiff’s argument under Ground 2, just why in that light they are not amendable to judicial review. The plaintiff’s submission that, in so far as to the Tribunal’s findings were concerned “the plaintiff’s innocent conduct was the only available cause” may not, therefore, be accepted. As the Tribunal said at [263] of the decision, the horse may have received cobalt from another source, but what that source was is not known.

37. [124]

    The plaintiff was incorrect, in my view, to submit that the Tribunal's findings then had excluded any source of breach other than the plaintiff's blameless use of Hemoplex. That approach was inconsistent with findings applicable to Category 3. The Tribunal approached the matter by finding that the plaintiff had failed to establish in his case to a comfortable satisfaction that he was blameless or there was nothing else he could have done to have prevented the positive (at [262]). That finding was not an error of law.

38. [125]

    In the proceedings before the Tribunal, the plaintiff bore the onus of proof to establish the case that he himself had advanced that he was in Category 3.

39. [126]

    I will return to that consideration later in this judgment, but for present purposes, the Court will address the submission advanced by the plaintiff that the first defendant bore the onus of proof establishing “any” contested fact adverse to the plaintiff on penalty. That submission was directed to any factual issue bearing upon the Tribunal’s assessment as to whether that plaintiff fell into McDonough Category 3. The plaintiff relied upon Olbrich (at [25]).

40. [127]

    In Olbrich, Gleeson CJ, Gaudron, Hayne and Callinan JJ stated in criminal proceedings (at [25]) as follows:

41. [128]

    The immediately following passage of the judgment is also instructive (at [26]):

42. [129]

    Here, as I have mentioned, it was the plaintiff who sought to bring to the Tribunal’s “attention” a particular matter; namely, he fell within Category 3. As the High Court observed, there is no joinder of issues as such in criminal proceedings. That same principle primarily applying to disciplinary proceedings before the Tribunal. In this matter, the plaintiff had entered a plea of guilty and liability therefore was not in issue. The way in which the plaintiff sought to advance his sentencing case under Category 3 of McDonough was a classic case in mitigation, analogous in my view, to the “courier” in Olbrich.

43. [130]

    The plaintiff’s submission that the issue as to the application of McDonough Category 3 should be “construed” as aggravation or may have some bearing upon objective seriousness of the offence (or reflect the need for general or specific deterrence) erects a false premise, namely, the Tribunal was considering under the heading ‘Discussion’ (and the analysis that proceeded under it) anything other than whether the matter fell under Category 3; the consideration brought to the Tribunal’s attention by the plaintiff. As I have discussed, that is what the Tribunal identified was its task at that stage (see for example [214]) and that is what it was asked to do by the plaintiff. [17]

44. [131]

    The fact that the first defendant contested the plaintiff’s contention that Category 3 applied and went on to make submissions in that respect, followed by submissions referable to the McDonough Category 2, (involving issues such as the seriousness of the offence) did not alter what the Tribunal was actually considering in the section of the decision entitled ‘Discussion’, namely, the plaintiff bringing to attention matters in mitigation albeit within that context of the matters to be ventilated under McDonough Category 3. The Tribunal turned to Category 2 considerations, again at the invitation of the plaintiff, after it had resolved issues under Category 3.

45. [132]

    The affidavit of Ms Chua of 11 September 2023 indicated that the plaintiff and the first defendant filed written submissions in advance of the hearing before the Tribunal. The plaintiff submission was filed on 21 August 2023 and the submission in reply by the first defendant on 22 August 2023. The material also indicates that a significant amount of expert evidence was filed.

46. [133]

    The written submission of the plaintiff before the Tribunal do not expressly deal with the McDonough categories. The submissions focused upon the disqualification being too severe in the light of the plaintiff’s “outstanding good character”. However, the plaintiff submitted that he considered that Hemoplex was the “cause of [the] swab reading” and relied upon Dr Major’s evidence in that respect.

47. [134]

    That approach, so far as the reliance on the McDonough categories was concerned may be compared with the approach adopted by Mr Dalton SC in oral submissions before the Tribunal which placed the McDonough categories, and in particular Category 3, at the centre of the plaintiff’s appeal.

48. [135]

    That adjustment in approach, between the written and oral submissions, is particularly well explained in the written submissions subsequently filed by the first defendant. In that submission it is stated that due to the “morass of issues” raised by the plaintiff’s expert evidence that a conference was held between the legal representatives of the parties prior to the hearing to narrow the issues. This fact is reflected in the decision of the Tribunal (at [8] and [9]) which identified that the issues were narrowed to 4 issues. [18]

49. [136]

    The written submissions of the plaintiff then proceed to identify that the written submissions of the plaintiff had only identified Hemoplex as an “excuse” for the elevated cobalt reading.

50. [137]

    There then followed a component of the written submissions of the plaintiff which is entirely consistent with the submissions of the plaintiff in this Court and accorded with the conclusions I have reached as to the first defendant not pressing the McDonough categories as a point of aggravation or an affirmative proposition for objective seriousness (if Category 3 is understood as embodying a discussion of the issues which have been ventilated, albeit in reduced form, by the plaintiff before the Tribunal).

51. [138]

    In that respect, the first defendant made the following written submission before the Tribunal (at [35] and [36]):

52. [139]

    Similarly, the following submission was made by the first defendant at [51]:

53. [140]

    At [62] of the written submissions, the first defendant submitted:

54. [141]

    The policy bases for these submissions were found at [71] of the written submissions in the following extract:

55. [142]

    Returning briefly to the plaintiff’s oral submissions, it is in that context that Mr Dalton SC strenuously contended that the Tribunal should find that the plaintiff was caught by McDonough Category 3 or in the alternative Category 2. Mr Elks’ oral submissions in reply were in conformity with his approach in written submissions and respond with Mr Dalton’s oral submission in that McDonough Category 3 applied in the case of the plaintiff.

56. [143]

    Mr Elks was called on in the Tribunal proceedings to go first. He identified (at 5) that “the only real issue is whether the Tribunal can be satisfied by the appellant’s evidence that it is in Category 3 of the McDonough principles to justify a lower disqualification period or punishment that the stewards decided to provide of 12 months’ disqualification”.

57. [144]

    Mr Elks then identified the four matters relied upon by the plaintiff which would render the situation fall into Category 3. He submitted that based on the evidence before the stewards’ inquiry, the decision they made was “eminently reasonable”. He dealt with the evidence of Dr Wainscott and Dr Major. Mr Elks’ submissions made clear that the first defendant was responding to the case advanced by the plaintiff to have his sentencing upon the bases that he was to be assessed under McDonough Category 3.

58. [145]

    Thus, I have earlier set out the plaintiff’s pursuit of a finding that Category 3 applied in his case and that it was the plaintiff who prosecuted that issue. Mr Dalton SC identified that the first defendant properly understood that was the plaintiff’s case (at 8). The first defendant resisted the plaintiff’s contentions in this respect, based on the administration studies and Dr Wainscott’s evidence, but the attention given by the Tribunal to Category 3 was a product of the plaintiff’s case. Category 2 was reached in the plaintiff’s alternative case.

59. [146]

    The structure of the decision reflects the plaintiff had pressed an argument in mitigation in this fashion. It also recognised that fact in the summary of the first defendant’s submission in reply at [207] and [208]. There, the Tribunal recognised the first defendant to be contending that it did not have to prove the cause of the reading in the horse – the plaintiff bore the onus to do so. Further, the first defendant had submitted that, if the plaintiff could not fall under Category 3, if he could not establish how the prohibited substance was in the horse (that is, the reading over the threshold) the matter was properly to be considered, on all the facts and circumstances, under Category 2. This was in conformity with the plaintiff’s alternative case.

60. [147]

    The first defendant’s approach in that respect did not represent a submission as to aggravation but a reply to the manner in which the plaintiff put his case.

61. [148]

    Having found the matter may be considered under Category 2, the Tribunal then stated it was required to consider the plaintiff's actual conduct in the light of the whole of the facts and circumstances of the case and then determine an appropriate disciplinary penalty. The Tribunal is observed that no greater penalty than the facts and circumstances warranted should be imposed. The Tribunal then looked at the question of objective seriousness, noting that the subject drug was not a performance enhancing drug, there were no welfare considerations for the horse, the readings remained unexplained, and the horse was treated in accordance with proper administration and holding times with respect to Hemoplex. The Tribunal considered general deterrence and specific deterrence. All of that indicated that the Tribunal had not limited itself to a very narrow outcome as contended for by the plaintiff.

62. [149]

    Even if other explanations had been ruled out, it would not follow that the plaintiff’s explanation was required to be accepted. The Tribunal was not obliged to make a finding one way or the other, but was entitled to conclude that the party on whom the burden lay (the plaintiff) had simply failed to discharge that burden: Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555 at [118] (Besanko J, citing Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 1 WLR 948 at 955); [1985] 2 All ER 712 at 718 (Lord Brandon of Oakbrook (with whom the other members of the House of Lords agreed)).

63. [150]

    For completeness, the Tribunal found at [258] that the burden was not upon the first defendant to prove what caused these "readings" (the positive readings). When understood in the context of that finding, the Tribunal was, in fact, concluding that the burden did not rest upon the first defendant to prove what caused the positive result above the relevant threshold. The Tribunal was correct to conclude that the AHRR, when properly construed, did not require the first defendant to establish how, or by what route or under what circumstances a positive result arose.

64. [151]

    The plaintiff has not established this limb of Ground 1.

65. [152]

    Irrespective of the application of Briginshaw principles, the applicable standard of proof, the one applied by the Tribunal, was satisfaction on the balance of probabilities (Neat Holdings at (449)–(450)). Briginshaw considerations do not change the standard of proof applied.

66. [153]

    As previously mentioned, the Briginshaw considerations do not create “hard and fast rules” (Palmer at [47] per Ipp JA (with whom Tobias and Basten JJA agreed)). Briginshaw considerations provide guidance as to whether a decision maker would be satisfied on the balance of probabilities as to a particular matter having regard to considerations such as the seriousness of the issue or the potential consequences of the findings.

67. [154]

    The first defendant was correct to submit that the application of the balance of probabilities standard to the facts before the Tribunal was a task for the Tribunal as a finder of fact. Any error in how those factual considerations were weighed in reaching the Tribunal's determination does not give rise to an error of law or jurisdictional error.

68. [155]

    In any event, a prohibition offence under AHRR r 190(1), the type for which the plaintiff was convicted, is a very serious matter. These are offences of absolute liability for a good reason. As the Court of Appeal emphasised in Day (No 2) at [79] (Basten JA):

69. [156]

    That consideration was relevant to the Tribunal's discretion as to fact finding, both generally and with respect to McDonough Category 3 in circumstances where the plaintiff relied on his good character (in all respects on sentence), but where it was unknown how the prohibited substance came into the horse’s system. It was appropriate in those circumstances that the Tribunal should consider whether it was comfortably satisfied of the relevant facts before concluding the plaintiff was blameless in relation to what had occurred.

70. [157]

    Importantly, the plaintiff himself contended in his submissions to the Tribunal that the Briginshaw standard should be applied when assessing whether what occurred fell within McDonough Category 3. He referred to this as “the appropriate Briginshaw standard” (as recorded at [201] of the decision). This was consistent with the plaintiff’s submissions to this Court on 1 September 2023. The Tribunal further recorded the plaintiffs’ position at the hearing before it as follows at [235] of the decision:

71. [158]

    The language of “comfortable satisfaction” is the language of the Briginshaw approach.

72. [159]

    The plaintiff’s submissions, which sought to qualify the submissions made by senior counsel on his behalf at the Tribunal hearing as to Briginshaw considerations, are unconvincing. The quotation of a submission by counsel for the plaintiff before the stewards as to the features of aggravation do not diminish this consideration. Nor was the plaintiff’s reliance upon a good character not only going to the issue of credibility, but as to the question of the actual breach and his credibility. The plaintiff failed to make any argument as to the inapplicability of Briginshaw principles before the Tribunal, notwithstanding it was the common approach of the Tribunal in determining issues arising under the Rules of Racing, to resolve issues by reference to Briginshaw considerations.

73. [160]

    I reject this limb of Ground 1.

74. [161]

    I then turn to the remaining component of the plaintiff's challenge under Ground 1.

75. [162]

    The plaintiff contended that, “by inference from the result”, the Tribunal “must have applied a wrong test with respect to the application of a witness’s credibility”, namely that of the plaintiff.

76. [163]

    However, I do not consider that, by inference from the result, it may be concluded in this matter that the Tribunal applied the wrong test as sought by the plaintiff. That is principally because I do not consider there was a contradiction in the Tribunal's reasoning process either at all, or as contended by the plaintiff.

77. [164]

    The relevant aspects of the Tribunal's reasoning, having regard to findings as to credibility, are described below.

78. [165]

    Dr Wainscott’s theory was not that the plaintiff had deliberately dosed the horse with cobalt (as the plaintiff contended), but rather that there may have been some sort of administration (by someone) on race day or sometime before the race.

79. [166]

    The Tribunal concluded only that the plaintiff had not engaged in such an administration.

80. [167]

    While Dr Wainscott could not rule out the plaintiff’s expert’s theory, he also made clear that he could not accept it. This was consistent with the Tribunal’s ultimate conclusion that the plaintiff had not established how the positive swab came about.

81. [168]

    The Tribunal’s findings at [253]-[254] and [263] of the decision did not concern the question of whether the plaintiff had himself administered cobalt to the horse. Rather, they concerned the expert evidence as to whether the positive swab could be explained by the horse failing to process cobalt through its system due to health issues.

82. [169]

    Contrary to the plaintiff’s submission’s, the Tribunal did not “reverse” any of its earlier findings at [253]-[254] and [263]. This submission of the plaintiff results from his misreading of the decision. The Tribunal was concluding in those paragraphs, consistently with its earlier findings, that had it had accepted Dr Wainscott's evidence and, in the result, the Hemoplex administered to the horse must have been eliminated well prior to its presentation at the race. As previously mentioned, it follows that the plaintiff had not established the horse did not process the cobalt through its system as opined consistently with theory 2.

83. [170]

    The Tribunal proceeded to consider penalty on the basis that the readings remained unexplained and, that the case attracted, as advanced by the parties, consideration under McDonough Category 2. The Tribunal found that objective seriousness was to be determined on the basis that the subject horse was legally treated in accordance with the proper administration and withholding times, namely, what the plaintiff did with Hemoplex was legitimate. However, the Tribunal did not accept the contention, pressed by the plaintiff below, that the Hemoplex was the cause of the positive result. The Tribunal found the cause remained unknown. In that way the Tribunal recognised the plaintiff’s credit, but also identified that the source of the positive reading remained unknown. In consequence, it proceeded to deal with the matter in accordance with McDonough Category 2, as it was invited to do by the parties.

84. [171]

    There can be no error of law in that approach. It is precisely what the plaintiff had contended should occur before the Tribunal. Thus, senior counsel for the plaintiff contended that, in the absence of finding the existence of a McDonough Category 3 case, the Tribunal should proceed to deal with the matter under McDonough Category 2.

85. [172]

    In the result, there is nothing to suggest that the Tribunal applied a wrong test with respect to considering the plaintiff’s credibility as a witness. This limb also fails.

86. [173]

    The plaintiff’s Ground 1 of judicial review is dismissed.

87. [174]

    Some of the considerations arising in the disposition of Ground 1 are also applicable to the determination of Ground 2 to which I will now turn after a summary of the submissions of the parties.

GROUND 2

1. [175]

   In broad terms, the plaintiff contended that, assuming the Tribunal asked the correct question, having regard to the findings made favourable to the plaintiff, it could not have come to the decision it did. The plaintiff relied in this respect on irrationality grounds.

2. [176]

   As to Ground 2, the plaintiff submitted the following:

   1. (1)

      The Tribunal’s conclusion on the source of the breach and culpability was so illogical as to be irrational, which if sustained is a jurisdictional error: SZVFW at 573 [81]–[82]; Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”) at 366, 375 [72], [105]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (“SZMDS”) at 649-650 [135].

   2. (2)

      The outcome on this issue is so irrational that it “lacks an evident and intelligible justification” or is one no reasonable decision-maker could have reached. However, legal unreasonableness is not limited to the outcome in the decision. In this case, it is also that the process of reasoning in which the Tribunal engaged was not open to it because there is no logical connection between the Tribunal’s primary findings of fact and the ultimate inferences or conclusions drawn as to causation and culpability: Plaintiff S183/2021 v Minister for Home Affairs (2022) 399 ALR 644; [2022] HCA 15 (“Plaintiff S183/2021”) at [31], [43]; Li at [62], [76].

   3. (3)

      The Tribunal findings at [253]–[254] and [263] cannot logically stand with the Tribunal’s anterior findings that excluded all sources of cobalt other than that affirmatively identified by the plaintiff: the Tribunal had positively excluded that the plaintiff had given other doses at other times, that some third party had given it or that the horse obtained it from the environment. The Tribunal’s subsequent conclusion in the above paragraph was not rationally available to it. Having positively killed the “other source theory” (at [222], [223], [225], [259] and [172]) the Tribunal could not resurrect a zombie by a “consequential finding” at [263].

   4. (4)

      On the finding that the plaintiff only gave the horse what he said he did, when he did and for the proper reasons he gave, the only open conclusion was that:

   5. (5)

      Further and alternatively, the Tribunal’s reasoning process and findings in respect to culpability so badly miscarried that they were not an effective exercise of its jurisdiction, and the matter must be redetermined.

   6. (6)

      The conclusions of the Tribunal that the horse returned to (apparent) health immediately after the end of the Hemoplex injections, perhaps because of them, perhaps regardless of them, and was able to be worked and raced is not a logical or available basis for finding the horse’s condition was in all respects “normal” at that time (at [247] of the decision). This is especially so when Dr Wainscott had conceded that he could not exclude the illness at the time the horse received the injections having interfered with the processing of the cobalt (and the Tribunal did not reject that concession) and Dr Major positively opined that it would, and the Tribunal did not reject that opinion.

   7. (7)

      The Tribunal’s conclusion that the administration studies have not been shown to be “able to be downgraded”(at [241]) and that “each of those matters which are said to cause the studies to be read down are entirely speculative and of no weight” is diametrically opposed to and cannot logically stand with its findings at [229] and again at [250] (accepting the concessions made by Dr Wainscott at [75]–[78], [92], [95] that, unlike the subject horse at the time of administration, the study horses “were not in work, were not sick, had an unknown level of dehydration and had no known exposure to cobalt”). The requirement that the plaintiff be able to point to contrary studies of horses that were sick and dehydrated before the lack of comparability of the study subjects to the horse in this case was could be considered is irrational and cannot stand with its findings at [229]–[230].

   8. (8)

      Additionally, the Tribunal’s conclusion at [257] was completely illogical and a non sequitur (apart from also not being based in any evidence before the Tribunal).

   9. (9)

      The issue in Ings v Racing New South Wales [2022] NSWSC 1127 (“Ings”) was different as it related to complaints regarding factual findings on a question of causation posed by the rule applicable in that case.

   10. (10)

       The observations by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (“Bond”) referred to by Basten AJ in the passage quoted at Ings at [53] were directed to findings of fact and not to illogicality in the process of decision-making or its conclusions. As Basten AJ went on to explain in the following paragraphs of Ings at [54]–[55], these are undoubtedly reviewable for irrationality (which the High Court had accepted is synonymous with illogicality and unreasonableness eg SZMDS at [125]).

   11. (11)

       Modern authority confirms that unreasonableness or irrationality is a jurisdictional error because the statutory source of power (relevantly here, s 21 of the HR Act and the AHRR r 256) is construed as requiring the power granted be exercised reasonably (and rationally): Li at [23]–[26], [90] such that administrative conduct that was disproportionate or arbitrary would be invalid (at [30]–[31] and [74]) and that the ground is broader than Wednesbury unreasonableness [28], [68], [76], [85]; SZMDS at [133]; Plaintiff M1/2021 at [25], [27]; Plaintiff S183/2021 at [31], [43] and ABT17 at [19], [33], [125], [129] (cf Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 at 36).

   12. (12)

       The serious consequences attending a disqualification order in the comparable code of thoroughbred racing “will affect the standard by which reasonableness is to be judged” (Ings at [56]).

   13. (13)

       Even in fact finding, there will be legal error if there was no available basis for the finding.

   14. (14)

       The Tribunal’s ultimate conclusion was not available because it had already accepted the plaintiff’s evidence of his conduct and excluded alternative sources of the cobalt.

   15. (15)

       The finding at [244] (which is before the administration occurred and, not at the time of administration) and for [247] (which is afterwards) do not provide a logical, plausible or intelligible justification for the Tribunal’s conclusion regarding matters the Tribunal accepted at [229]–[230] but then reversed at [249]–[250] (cf SZMDS at [135]; DAO16 v Minister for Immigration & Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30(4)]).

3. [177]

   As mentioned at the outset of this decision, the plaintiff made supplementary submissions as to the applicable test for judicial review on the basis of legal unreasonableness, irrationality or illogicality in a decision-maker’s fact finding process.

4. [178]

   In those supplementary submissions, the plaintiff contended, after noting that traditional grounds of review are not exhaustive and do not constitute a rigid taxonomy, and after extracting some passages from a well-known text on administrative law [19] that cases in which legal unreasonableness, illogicality or irrationality have been found to have vitiated decisions under judicial review may be broadly classified as falling within five types. Without reference to the authorities relied upon for each classification, save as to the fifth category, the five categories identified by the plaintiff were as follows:

   1. (1)

      Cases in which the outcome itself is seriously unreasonable; the operative error that caused the outcome to go wrong may or may not be able to be identified from the reasons but, if not, it is to be inferred from the unreasonableness or irrationality of the result.

   2. (2)

      Cases in which some procedure has gone wrong, which might be a failure of procedural fairness to give an appropriate form of hearing or to actually engage with a substantial case or a failure to exercise a power of inquiry when the circumstances call for it or the decision-maker failing to put itself in an appropriately informed position to made a decision or ignoring or misunderstanding critical material that it did have.

   3. (3)

      Cases in which the reasoning process has gone badly wrong: the error is either apparent from the reasons or the reasons fail to explain something that is otherwise inexplicable in context: this may include material inconsistency between primary findings or between primary findings and inferences or conclusions or other unexplained or illogical leaps. Factual errors on critical matters, including credibility or the application of credibility findings, may also mean that the decision-maker has not come to the decision through an intelligible process or that the decision is “devoid of plausible justification”.

   4. (4)

      Cases which are affected by multiple errors of the one kind or different kinds, which may include errors expressed as other grounds, such as the failure to actively engage with a substantial case or failing to apply a correct legal principle but where one or more of the errors alone might not have been enough to establish a jurisdictional error but the accumulation of error tips the balance into serious unreasonableness. (Any error of law might be sufficient to establish non-jurisdictional error of law subject to it being on the face of the record and sufficiently material that relief would be granted, materiality being a low bar of a realistic possibility that a different outcome could have been reached.)

   5. (5)

      Some combination of the above (eg Wood v Secretary of the Department of Transport on behalf of the Government of New South Wales [2021] NSWSC 1248 (Schmidt AJ); Schmael v Leach [2020] VSC 562 (Richards J)).

5. [179]

   From those contentions there sprung the submissions to which I have earlier referred which sought to bring into Grounds 1 and 3 of the appeal aspects of the legal unreasonableness, illogicality, and irrationality. Those submissions were as follows:

6. [180]

   The plaintiff then embarked upon some entirely new submissions which sought to draw a comparative analysis with other judicial review decisions. The plaintiff described these as exemplar decisions for the purposes of the present proceedings in which a decision was set aside on judicial review for legal unreasonableness or irrationality. I will touch upon these examples below but in doing so note that the High Court has cautioned against this form of analysis, that is, analysis of factual similarities or differences between individual cases as a way of assessing whether a decision was legally unreasonable: Minister for Immigration & Border Protection v SZVFW (2018) 357 ALR 408; [2018] HCA 30 (“SZVFW”) at [84].

7. [181]

   The first defendant submitted that this ground of review visa-à-vis irrationality, is also misconceived and should be rejected.

8. [182]

   In support of that contention, the first defendant submitted:

   1. (1)

      The correct approach to addressing an allegation of the type made in this case is that stated by Basten JA in Ings at [53]. The context of that case was similar to the present.

   2. (2)

      The passages of the Tribunal’s decision under challenge in this respect wholly involve a misreading of the decision and, in any event, involved challenges to findings of fact which were impermissible upon judicial review.

9. [183]

   The first defendant submitted that Ground 2 of the plaintiff’s claim should therefore be dismissed.

Consideration: Ground 2

1. [184]

   The Court has earlier identified how the plaintiff’s submissions as to this ground, and more broadly the questions of legal unreasonable, illogicality and irrationality, had become interlinked with other grounds in the plaintiff’s written supplementary submissions.

2. [185]

   When looked across the entirety of the plaintiff’s submissions in this respect, in my view, this Ground should be dismissed and as should the related considerations arising with respect to Grounds 1 and 3.

3. [186]

   The fundamental basis for that conclusion is the Tribunal decision is that the plaintiff’s submissions have proceeded upon a misreading and misunderstanding of the decision. When properly understood, the decision does not establish a basis for judicial review upon the grounds of legal unreasonable, illogicality and irrationality in the decision-maker’s findings in that light.

4. [187]

   Some of the plaintiff’s arguments intersect with issues raised by the plaintiff as to Ground 1. The same issue arises with respect to my consideration of Ground 3 below. My conclusions with respect to those grounds apply with equal force under the Ground. I do not propose to repeat my conclusions except those required as part of the discrete reasoning process under that Ground.

5. [188]

   For the purposes of considering this Ground, I shall return to the Tribunal’s decision, unavoidably with some repetition, in order to demonstrate the absence of legal unreasonableness, illogicality or irrationality. Strictly speaking, that analysis does not require a resolution of the legal arguments as to principles applying to legal unreasonableness, particularly those emerging in the supplementary submissions. But I will take some little time in examining them before turning to, as I have noted, particular aspects of the Tribunal’s decision.

6. [189]

   In addition to the discussion of broad principles with respect to judicial review and, particularly in relation to dealing with the scope of the same with respect to questions of fact earlier discussed in this judgment, the following propositions may be stated, in substantial acceptance of the first defendant’s submissions as to the applicable principles:

   1. (1)

      There are circumstances in which flaws in the decision-maker’s process of fact finding may give rise to an error of law or jurisdictional error in the form of legal unreasonableness, irrationality or illogicality.

   2. (2)

      The general test is whether no rational or logical decision-maker could arrive at the relevant decision on the evidence before the decision-maker. This test concerns whether the decision-maker has reasoned in a way that has caused it to go beyond the “area of decisional freedom” granted to it under the relevant statute: Li at [23] (French CJ).

   3. (3)

      Error of this type can be established by looking at both the “outcome” and the “process” of reasoning of the decision: Plaintiff S183/2021 v Minister for Home Affairs (2022) 399 ALR 644 at [31], [43] per Gordon J as follows:

   4. (4)

      Where reasons have been provided for a decision, they are the focal point for assessment by the Court. It would, therefore, be a rare case to find that the exercise of discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power: SZVFW at [84].

   5. (5)

      However, the courts have regularly emphasised that review based on legal unreasonableness, irrationality and illogicality is a “high threshold”, that is rarely met. The High Court has reiterated in this context that the Court must not stray into evaluating for itself how it might exercise the powers entrusted to the decision-maker. For that reason, the test for legal unreasonableness has been described as “necessarily stringent”, “extremely confined” or in “the realm of the extraordinary”: SZVFW, [11] (Kiefel CJ), [52], [70] (Gageler J).

   6. (6)

      Given the arguments presented by the plaintiff in this case, it is necessary to emphasise two factors:

   7. (7)

      Contrary to the submissions of the plaintiff, Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 (“Azzopardi”) point remains good law (see CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338 at [26] per Allsop P; [86] per Basten JA).

   8. (8)

      Perversities in the fact finding process may feed into other types of error of law or jurisdictional error, including legal unreasonableness. The point arising from Azzopardi is simply that it is not sufficient for a plaintiff to point to an error of fact per se, even if the finding is perverse or illogical, to establish jurisdictional error or error of law. In State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257 at [12], Basten JA explained the fact that a finding can be characterised as “perverse” or “illogical” is not sufficient or necessary to identify an error of law; “some greater level of precision”, by reference to the tests for jurisdictional error or error of law set out above, is required.

   9. (9)

      So long as there is some basis for an inference (ie that inference is “reasonably open”), mere illogical reasoning does not provide a basis for judicial review: Bond at 355-356 per Mason CJ. Again, the point here is that mere illogical reasoning is insufficient in and of itself. For an error of law or jurisdictional error to have occurred, the flaws in the process of reasoning need to rise to the much higher threshold of legal unreasonableness as discussed above.

   10. (10)

       Questions of the weight to be attached to a factor relevant to the exercise of a discretion are matters for the primary judge or decision-maker. Questions of weight are not amenable to judicial review: DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 (“DCP16”) at [87] per Beech, O’Callaghan and Anastassiou JJ; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41 per Mason J; McCarthy No 1 at [52] per Beech-Jones J. This point is particularly pertinent (as in the present case) when considering a “value judgment” that has been made by the decision-maker, based on the facts and circumstances of a particular case, as to the appropriate penalty to impose for a criminal or disciplinary offence: Markarian at [51] per McHugh J.

7. [190]

   As earlier mentioned, the plaintiff contended that the judgment of Basten JA in Ings was not applicable in the present matter as it related to complaints regarding factual findings on a question of causation posed by the rule applicable to that case. Thus, it is submitted that the passage of the judgment in Ings at [53] relied upon by the first defendant was concerned with findings of fact and not to illogicality in the process of decision making or its conclusions. It was submitted by the plaintiff; such matters are amenable to review.

8. [191]

   It is true that Grounds 1 to 5 of the Summons of judicial review in Ings concerned the way in which the Tribunal dealt with the question of causation. Basten JA did deal with the issue of causation at [50]. He found the proposition that the Tribunal disregarded some material aspect of the plaintiff’s case and did not apply the correct legal test must be rejected. However, his Honour then turned separately to the question of whether the reasoning of the Tribunal in reaching its factual conclusion was internally inconsistent, illogical, or irrational.

9. [192]

   At [52] his Honour stated that these grounds much be approached with a degree of caution. It may be observed at this juncture, given the earlier discussions of onus, that his Honour stated, based upon Azzopardi, that “the party bearing the onus of proof cannot assume in her favour that evidence is or ought to be accepted since this trenches upon the liberty of Tribunal of fact to accept or reject any evidence”. This observation occurred in the context in which the plaintiff accepted, as the Rules expressly provided, she bore the burden of establishing the necessary causal link between her impairment and her breach of the rule.

10. [193]

    It was in this context that his Honour made the following observations at [53]:

11. [194]

    Notwithstanding the plaintiff’s submissions, his Honour did not conclude in [54] that the challenge based on irrationality was sustainable. Rather, in that paragraph and [55], his Honour dealt with the question of legal unreasonableness. In that respect, his Honour’s ultimate conclusion was that the challenge was not available having regard to the reasoning of the Tribunal. However, his Honour went on to discuss what he described as a more fundamental problem as follows at [54]:

12. [195]

    Furthermore, his Honour made the following observation at [55] as follows:

13. [196]

    In my view, it was appropriate for the first defendant to rely upon [53] of Ings in this matter, as that passage is relevant to the arguments advanced by the plaintiff under this Ground. Furthermore, the reliant component of paragraph [54] is that legal unreasonableness applies only to the process of decision making and not to a finding of fact, provided that conceptually the challenge in that respect is a challenge to the outcome. In any event, the error of law must be identified as a failure to comply with a standard of reasonableness required by the rules.

14. [197]

    Before turning to the particular aspects of the plaintiff’s challenge to the decision under this Ground, I will briefly touch upon some of the exemplar decisions relied upon by the plaintiff which, apart from the general limitations applying to such an approach in judicial review, are of limited import when considered in their own terms against the facts and circumstances of the present case. I do not propose to deal with all of them, as an inherent feature of the plaintiff’s approach to them is the misreading of the Tribunal’s decision and mischaracterisation of the process of reasoning engaged in by the Tribunal. For example, there is a reliance upon irrational inconsistencies or illogical reasoning which I have and will find are not features of the decision.

15. [198]

    My observations in relation to the exemplar decisions are as follows:

    1. (1)

       Kavanagh was essentially concerned with two issues. The first involved the question of liability and the proper construction of a particular rule of the Rules of Racing (namely, AR 175(h)(ii): see [40]). The second issue went to the question of penalty and, in particular, the decision of the Tribunal to reduce penalty by reason of special circumstances. The first issue did not concern the question of legal unreasonableness arising from the Tribunal’s fact finding process. In a second case, the Tribunal’s decision was found to be legally unreasonable because the reduction in penalty by 11% was unexplained and arbitrary. There does not seem to be an appropriate connection with the present matter.

    2. (2)

       To the extent that it might be suggested that the analogy arises by way of consideration of contradictory findings, I have found such a condition does not affect the Tribunal’s decision in this case. So far as the plaintiff’s position as to the question of general deterrence or an example being made of the plaintiff, in my view, as will be discussed further below, the principles of general deterrence were open to the Tribunal to take into account as a factor in sentencing in this matter including the imposition of a penalty of the disqualification of the plaintiff in the facts and circumstances of this case.

    3. (3)

       The plaintiff made reference to IAG Ltd v Sleiman (2017) 82 MVR 1; [2017] NSWSC 1346 to draw comfort from a conclusion that the assessor had engaged in an unexplained ‘leap’ in the assessment of post-accident weekly wages and the absence of an evident and intelligent justification. Again, reliance was placed by the plaintiff upon irrational inconsistencies but, as I have observed (and will observe), the Tribunal embarked upon a consideration of whether the plaintiff had established, on the evidence, what caused the positive result entirely consistently with the case put by the plaintiff. It was open to the Tribunal to conclude, as it did, that he had not done so, the cause was unknown and then to determine the appropriate penalty on that basis, when considered in the light of the entirety of the facts and circumstances of the case.

    4. (4)

       As to Bayley v Nixon [2015] VSC 744 (“Nixon”), in that case an independent reviewer had made a decision that legal aid should not be provided on the particular facts of that case because it was not reasonable to do so. However, his reasons did not provide any explanation for why this was so (at [54]-[62]). This was, therefore, said to constitute legal unreasonableness. Again, for reasons I have earlier given, there is no useful analogy to be drawn with the present case. Nor is the plaintiff’s reliance upon the italicised passage from Nixon of assistance in this matter, particularly having regard to the Tribunal’s conclusion at [294] where the Tribunal stated its assessment was part of the overall facts and circumstances of the case going to penalty.

    5. (5)

       Similarly, where the cause of the positive result had not been established, there was a proper basis, in the light of the overall facts and circumstances considered by the Tribunal, to find the general deterrence made a disqualification appropriate. This is particularly so where the regulation of positive results serves a central feature of the role of the first defendant and is consistent with the HR Act and the AHRR. Further, I agree with the submission for the first defendant that the Tribunal’s conclusion in this respect was not inconsistent with [271]. That paragraph simply concerned the fact that cobalt is not performance enhancing. The conclusion was also not inconsistent with [273]-[276]. Those paragraphs were primarily addressing matters relating to the character of the plaintiff.

    6. (6)

       Furthermore, in a consideration of the exemplar decision and in the discussion of particular aspects of the Tribunal’s decision said by the plaintiff to be properly characterised as irrational, illogical and legally unreasonable reasoning, it is important to bear in mind that, as earlier mentioned, the High Court has emphasised in this context that the Court must not stray into evaluating for itself how it might exercise the powers entrusted to the decision-maker. As I have discussed earlier and will discuss below, there are no material inconsistencies in the Tribunal’s reasoning and, in any event, to the extent a contrary view was formed, none that meet the test of legal unreasonableness, irrationality or illogicality in law.

16. [199]

    Returning then to the process of reasoning in the Tribunal’s decision challenged in the plaintiff’s submissions, a flawed premise in the plaintiff’s submission (based upon a misunderstanding of the Tribunal’s decision), is that the “Tribunal’s anterior’s findings … excluded all sources of cobalt other than that affirmatively identified by the plaintiff”. It is on that basis that the plaintiff contended that [253]-[254] and [263] of the decision were irrational. However, the Tribunal rejected the plaintiff's explanation and concluded that it could not determine what the cause of the positive swab was. That conclusion was open to the Tribunal as the finder of fact. The finding does not give rise to an error of law or jurisdictional error.

17. [200]

    As earlier mentioned, the plaintiff challenged the conclusions of the Tribunal that the horse returned to health immediately after the Hemoplex injections and was able to be worked and raced as constituting a logical or available basis for finding the horse’s condition was in all respects “normal” at the time of the race. Reliance was placed upon a contended concession by Dr Wainscott that he could not exclude the illness at the time the horse received the injections and Dr Major positively opined that it would (and the Tribunal did not reject that opinion).

18. [201]

    However, the plaintiff’s disagreement with the factual conclusions in this respect cannot give rise to an error of law. Further, I agree with the submission of the plaintiff that it was open to the Tribunal to have regard to those considerations in reaching conclusions about the state of the health of the horse at the relevant time.

19. [202]

    I have earlier dealt with the Tribunal’s reliance upon the administration studies. The plaintiff’s attack upon findings in this respect ultimately concerns the fact finding process per se and cannot, in my view, give rise to an error of law or jurisdictional error. Further, in circumstances where the Tribunal was not satisfied that the horse was “generally unwell, or constantly unwell, or so unwell” there was no illogicality or unreasonableness in the Tribunal finding that the administration studies were relevant.

20. [203]

    The plaintiff challenged the Tribunal’s conclusion at [257] as being illogical. However, based upon the evidence before the Tribunal, it was open to the Tribunal to, in effect, find the Hemoplex injections were unlikely to cause readings at the level referred to by the Tribunal in this passage.

21. [204]

    Otherwise, the plaintiff’s criticism of the Tribunal’s reliance on the high readings returned in relation to the horse in considering the elimination studies ultimately constituted a criticism of the Tribunal’s fact finding process which was not available on judicial review.

22. [205]

    The first defendant carefully traced in sequential steps the reasoning process of the Tribunal which, putting aside infelicities of language, demonstrated, in my view, that the Tribunal’s process of reasoning was not illogical, irrational or legally unreasonable.

23. [206]

    In essence, that path of reasoning by the Tribunal bearing upon this Ground was as follows:

    1. (1)

       Paragraph [7] of the decision provides that, from the numerous expert reports, the parties narrowed down the issues between the experts a few days before the Tribunal hearing. Those issues were at [8]:

    2. (2)

       Those issues constituted part of the plaintiff’s position about what caused the positive reading and why he may not be “blamed” for the reading in the horse at the race (at a prescribed level). The combination of issues 1, 2 and 3 would result in the horse not properly processing the cobalt through its system, as constituted in theory 2 (set out earlier in this judgment at [71]). At [9] of the decision, the Tribunal stated that 12 issues were no longer pressed. Those 12 issues are set out earlier in this judgment at [69]. Those issues were previous matters potentially advanced by the plaintiff and others, in order to explain the positive readings of cobalt detected in the horse which were no longer being advanced before the Tribunal.

    3. (3)

       At [16] and [17], the Tribunal noted at the inquiry, counsel for the plaintiff identified 3 theories for consideration and, essentially, before the Tribunal, 2 of those theories were identified as being encompassed by the list of remaining issues to which the evidence before the Tribunal was addressed. The two theories advanced are set out earlier in this judgment at [71]. However, for clarity, theory 1 was that the horse received cobalt from some other source in addition to which had been disclosed because it had a positive reading, namely, the feed regime or treatment given on the three consecutive days before the race. Under theory 2, the horse was said to not be processing and thereby expelling cobalt as expected for horses in ordinary health or physiological action per medium of studies.

    4. (4)

       The Tribunal made findings of fact regarding the health of the horse:

    5. (5)

       That part of the path of reasoning formed the basis for the Tribunal’s later finding that it was not satisfied that the horse was sick by race day.

    6. (6)

       At [63], the Tribunal noted, in considering the expert evidence, that it was only analysing the evidence relevant to the outstanding issues and not to the numerous issues canvassed in the evidence and reports.

    7. (7)

       The Tribunal set out some of Dr. Wainscott’s evidence at [80] and noted Dr Wainscott had opined that the reason for the high reading was not due to the horse being sick and treated with Hemoplex. He stated that “it’s inconsistent with the results of all the administration trials”, a view the Tribunal ultimately accepted.

    8. (8)

       The Tribunal continued (at [82]) to discuss Dr Wainscott’s theory that the high reading was either administration of a registered therapeutic product on race day or the administration of a high dose of cobalt sometime before race day.

    9. (9)

       At [87], the Tribunal noted that, critically, Dr Wainscott stated that the treatment recorded in the plaintiff’s log book would not produce the reading and would be inconsistent with the results of the administration studies.

    10. (10)

        In light of Dr Wainscott’s evidence, the Tribunal observed at [95] that “Dr Wainscott was not able to explain the plasma reading on 5 November 2018”. He was not able to concede the theory (that is, theory 2) advanced by the plaintiff that the horse was not processing cobalt properly because there were too many variables. The Tribunal noted whilst there was nothing to support that theory; there was nothing to contradict it either.

    11. (11)

        As to the evidential question in terms of the sickness of the horse, the Tribunal observed that Dr Wainscott, conceded there was a scouring problem in April 2018, but noted the horse recovered fairly quickly [106]. Further, the Tribunal recorded at [107]–[108] that Dr Wainscott was unaware of any study showing illness that may cause a horse to retain cobalt and further opined that the diarrhoea three days before the race would not account for the “urinary cobalt reading”.

    12. (12)

        At [106]–[111], the Tribunal ultimately accepted the evidence of Dr Wainscott in circumstances where there were conflicting opinions between Dr Wainscott and Dr Major, particularly, where Dr Wainscott considered that “Dr Major’s opinion that the diarrhoea would amplify the cobalt concentration was merely speculative” and “Dr Major’s opinion that the horse was gravely ill was overstating the situation”.

    13. (13)

        At [172] the Tribunal stated, “no consideration had been given by the plaintiff to the fact that someone else may have administered the substance. In the absence of that being the subject of detailed submissions… the Tribunal does not further examine that issue.”

    14. (14)

        The plaintiff contended that at [172] the Tribunal was improperly excluding potential causes stating an external contributor was not the cause. However, the Tribunal merely noted that there had been no canvassing of that issue, and, in the result, it did not reach a conclusion, particularly in circumstances where the onus was on the plaintiff to prove how the positive reading occurred (if the plaintiff wanted to demonstrate McDonough Category 3 was applicable). This passage should be properly understood to mean that the Tribunal would not make rulings on issues that have not been advanced by the plaintiff as the cause of the positive reading.

    15. (15)

        I have dealt with the Tribunal’s approach in [207] and [208] earlier in this judgment.

    16. (16)

        The Tribunal (at [222]) rejected a cause that the plaintiff administered anything else to the horse other than which he had told the stewards at the stable inspection and at the inquiry.

    17. (17)

        At [240], the Tribunal noted that “Dr Wainscott opined that the April illness was of no relevance, the diarrhoea prior to the race was not at a sufficient level to be of concern, and the Hemoplex as recorded would not have caused the elevated reading”.

    18. (18)

        The findings of the Tribunal at [244]–[249], as set out earlier in this judgment at [79], concern with how the Tribunal had identified and resolved the issue as to health of the horse on the day of the race and the competing opinions of Dr Wainscott and Dr Major. In particular, the Tribunal made the following factual findings:

    19. (19)

        At [253], the Tribunal stated, in the absence of any established cause which has not been overcome by the plaintiff, “the Tribunal is left with the opinion formed by Dr Wainscott based upon those administration trials”. Those trials established that the Hemoplex administered to the horse must have been eliminated well prior to its presentation.

    20. (20)

        Dr Wainscott formed the opinion that the administration of Hemoplex would have been expelled out of the horse’s system by the time of testing. In that respect, Dr Wainscott’s opinion was consistent with the Tribunal's earlier findings that weight should be given to those administration trials because it determined that it was not satisfied of Dr Major’s opinion “that Hemoplex was the overwhelming contributor to the level recorded, which was an outlier from the stable average, and that it flowed from the intense supplementation provided to the horse because of its previous severe illness” at [96].

    21. (21)

        At [259], the Tribunal found that “nothing about the environment as a contributor has been factually established.” I agree with the submission for the first defendant that, in part, the Tribunal’s reasoning suggested that because the plaintiff was no longer pressing environment as an issue or contributor to the high reading, then the Tribunal would not make rulings on the issue as the onus was on the plaintiff to factually establish environment as a cause.

    22. (22)

        At [260], the Tribunal found that the combination of “unwell, cumulative effect, feed and supplements and injections” do not explain the positive reading.

    23. (23)

        At [261], the Tribunal again mentioned that it accepted the plaintiff’s evidence that he not administered anything else to the horse.

    24. (24)

        Then at [262], the Tribunal noted that the plaintiff failed to establish a comfortable level of satisfaction that he was blameless. This finding related to the McDonough Category 3 proposition advanced by the plaintiff.

    25. (25)

        At [263] the Tribunal found, “the appellant fails to establish the horse did not process the cobalt through its system as opined (theory 2). There is the consequential finding that it received cobalt from another source but what it was is not known (theory 1). But in neither case do those theories assist the appellant”. I agree with the submission by the first defendant that the decision should be properly understood in this respect as meaning it had determined the plaintiff failed to establish theory 2, which left the Tribunal with theory 1. Theory 1 was not aptly described because it was not a theory, rather, it meant that that there was some other unknown source. This led to the principles under McDonough Category 2 being taken into account and, thus, this is why the Tribunal indicated those theories did not assist the plaintiff.

24. [207]

    This logical pathway establishes that the decision of the Tribunal is not illogical or irrational, and in any event is predicated upon findings of fact which were open. As previously mentioned, the plaintiff has not established legal unreasonableness.

25. [208]

    In all the circumstances, Ground 2 is dismissed.

GROUND 3

1. [209]

   In broad terms, the Tribunal had regard to the case the parties both asked it to have regard to but did so “in a way that fundamentally misunderstood and misapplied those cases” because of an inflexible adherence to McDonough (which was a mere guide). Reference was also given to erroneous use of a penalty guidance provided by the first defendant and reliance on precedents.

2. [210]

   In relation to Ground 3, the plaintiff submitted the following:

   1. (1)

      Both parties before the Tribunal addressed the facts of the case in terms of the very general categorisation (and his Honour expressly emphasised the generality of his observations) of Judge Williams in McDonough of prohibited substance cases. There were three classes or categories:

   2. (2)

      Judge Williams suggested at (at 11) that a penalty in a Category 2 case “may or may not end up being similar to the first category, every case depending on its own individual facts”.

   3. (3)

      McDonough itself was a case in which the trainer had no idea how the substance (which was a steroid that was prohibited) came to be in the horse. As found by Judge Williams, the likelihood was the banned substance was administered while the trainer had custody and management of the horse. Nonetheless, his Honour found the trainer blameless because he accepted the trainer’s evidence of denial of wrongdoing and his good character. Just like this case, there was a dispute over the expected times for accumulation and elimination of the substance and the racing vet conceded, like Dr Wainscott, that there were “too many variables” and that late elimination could not be excluded.

   4. (4)

      Judge Williams concluded (at 13), “the Tribunal considers that there is no justification for any disqualification of the trainer or even for any fine in view of the findings made. Of course, the horse will be disqualified as it has to be under the rules, but there will be no other penalty.” The findings of fact had many similarities to the matters the Tribunal accepted in this case.

   5. (5)

      Judge William’s discussion is a useful reference or shorthand starting point for some aspects of this case, but the Tribunal elevated McDonough to a rigid taxonomy with draconian consequences for the plaintiff based on a misapprehension and misapplication of the case.

   6. (6)

      The Tribunal indicated it would “apply the McDonough categories” at [158]. The Tribunal also stated is “required to find a penalty … not reduced on the basis that the [plaintiff] was blameless etc such that no penalty should be imposed or if there is to be a penalty, it be a very small one such as a fine” (at [265] and [280]). The plaintiff submitted this involved legal error in four ways:

   7. (7)

      Unlike other civil penalty regimes which only provide for pecuniary penalties or protective regimes which only provide for disqualification on a determination of fitness to practice or not, the penalty discretion under the AHRR is not such a blunt instrument. There are a graduated series of sanctions. Accordingly, the Tribunal is required to give effect to the rules by considering the full range of options for dealing with the matter.

   8. (8)

      The Tribunal must be understood to have determined that the plaintiff was relevantly fit to be a trainer because it accepted that he was of good character and would not re-offend and there was no requirement of any specific deterrence. On those findings, there was no element of public protection that required (or justified) the imposition of a disqualification.

   9. (1)

      The penalty guidelines referred to at [266] of the decision is not part of the AHRR. It is not a rule made or adopted under ss 21 or 22 of the HR Act. There is no statutory requirement under the Act or the AHRR or the Local Rules that it be considered or be used in a particular way.

   10. (2)

       It is in the nature of a standing submission or a policy that the first defendant applies to its own decisions. It can be considered as such by the Tribunal, but it cannot be used to fetter its broad consideration of the penalty options available to it under AHRR r 256 because:

   11. (3)

       It was not an error for the Tribunal to consider the penalty guidelines at all, and indeed the Tribunal ostensibly reminded itself of the need to consider the case on its merits (at [268]). However, the Tribunal’s course of reasoning in [281]–[291] of the decision shows that it simply adopted the penalty guidelines’ approach of only considering the penalty of disqualification (including the approach under the “current” guideline rather than the one published at the date of the breach) and excluding any real, genuine or independent consideration of whether any other approach was appropriate.

   12. (4)

       In respect of [65]–[67], the Tribunal’s use of a starting point of disqualification at [291]–[297] of the decision without consideration of whether that was justified in the plaintiff’s case is the result of the fettering error.

   13. (5)

       The Tribunal's application of the penalty guidelines was an abdication of its task and led it into error.

   14. (1)

       The Tribunal’s very limited consideration of “precedent” (at [281]–[291]) as requiring that only a disqualification be considered is also in error.

   15. (2)

       Other cases on other facts cannot be a binding precedent on the synthesis required to determine penalty and elevating their results to a rule is an error: DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [304]; cf The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48.

   16. (3)

       The Tribunal’s description of its own finding in Russo v Harness Racing NSW (NSW RAT 23, August 2023) (“Russo”) that “in a McDonough category 2, anything less than a disqualification would be inappropriate” is a misstatement of the already limited value of that case. The parties in Russo agreed that a disqualification was the appropriate penalty (Russo at [10],) and made no detailed submissions on general deterrence. The Tribunal decided it did not warrant substantial examination, the need for disqualification on the basis of specific deterrence having already been conceded (at [12], [13] of the decision).

   17. (4)

       This fettering of the Tribunal’s discretion or consideration of the options under AHRR r 256 was contrary to the rule.

3. [211]

   The first defendant made the following submissions with respect to this ground:

   1. (1)

      The plaintiff was not correct in submitting the Tribunal "elevated McDonough to a rigid taxonomy with draconian consequences".

   2. (2)

      The Tribunal used the McDonough categories as a starting point before going on to consider all the facts and circumstances of the case (see, for example, [265] of the decision). The Tribunal expressly stated that the penalty should be "appropriate to the facts and circumstances" of the case.

   3. (3)

      The Tribunal did not misunderstand the McDonough categories. Category 2 applies, as stated in McDonough:

   4. (4)

      That accords with the Tribunal's approach in this case.

   5. (5)

      There is nothing in the Tribunal's reasoning to suggest that by reason of its reference to the McDonough categories the Tribunal "mechanically and explicitly omit[ted] two of the options under AHRR r 256".

   6. (6)

      The plaintiff criticised the Tribunal's reference at [265] of its Decision to the penalty being reduced to "a very small one such as a fine". That conclusion does not display any error of law or jurisdictional error. It was open to the Tribunal to consider that a fine would be a less serious penalty than a disqualification.

   7. (7)

      The Tribunal did not find that McDonough Category 2 "mandates" a disqualification. Rather, the Tribunal concluded at [294] of the decision that "the general deterrence message here must be one which is in the public interest for the protection of the industry and mandates a disqualification". The Tribunal was entitled to refer to the McDonough categories (amongst other things) in assessing objective seriousness, as it did at [272] of its decision.

   8. (8)

      There is no basis to suggest that the Tribunal was not well aware of the various penalties that could be imposed on a person before it such as the plaintiff. The Tribunal considered that a disqualification was an appropriate penalty on the facts and circumstances of the case before it. This was a conclusion open to it and does not display error of law or jurisdictional error.

   9. (9)

      The plaintiff is wrong to contend that the Tribunal had accepted that the only open conclusion was that there was no unknown cobalt source.

   10. (1)

       The plaintiff accepts that the penalty guidelines are relevant in the circumstances of the present case. However, the plaintiff erroneously contends that the Tribunal adopted the guideline without any real or genuine consideration of the applicant's case.

   11. (2)

       That submission should not be accepted.

   12. (3)

       The plaintiff accepted that the penalty guidelines provided for a "starting point" of not less than 5 years' disqualification for the offence to which the plaintiff pleaded guilty. On the Tribunal's approach, the penalty suggested by the penalty guidelines have been reduced by a period of 4 years and 3 months.

   13. (4)

       Secondly, the plaintiff accepted that the Tribunal expressly stated in its decision that the penalty guidelines was not binding, and the case needed to be considered on its merits. It is clear from the decision that the Tribunal considered all of the circumstances of the plaintiff's case and did not consider itself bound by the penalty guidelines.

   14. (5)

       Thirdly, in light of what is stated in the decision, the plaintiff's approach would require this Court to reject the Tribunal's expressed reasoning process as not reflecting its actual reasoning process. There is no basis on which to do so.

   15. (6)

       The plaintiff submitted that the Tribunal concluded that precedent "required" it to disqualify the plaintiff. Again, this does not fairly reflect the Tribunal's reasoning process.

   16. (7)

       The Tribunal expressly considered all circumstances of the plaintiff's case. The Tribunal's reference to precedent was in relation to the "issue of parity" (at [281]). It was plainly open to the Tribunal to consider precedent in this context.

   17. (8)

       In relation to the Tribunal's commentary on the case of Russo at [287], those remarks were made expressly by reference to "the facts and circumstances of that case". The Tribunal was not saying, contrary to the plaintiff's submission, that its earlier decision in Russo required it to disqualify the plaintiff regardless of any of the other circumstances of his case.

   18. (9)

       The plaintiff's Ground 3 of review should therefore be dismissed.

Consideration: Ground 3

1. [212]

   In substance, I have earlier rejected the contentions made by the plaintiff under this heading in the course of my considerations under Ground 1. [20]

2. [213]

   As the plaintiff’s submissions in this respect are slightly wider, it is convenient to restate some earlier conclusions and deal with those additional considerations together as follows (without returning to the earlier analysis unless necessary):

   1. (1)

      The Tribunal did not elevate McDonough to a rigid taxonomy. The Tribunal used the McDonough categories (and, in particular, Category 3) as a starting point before going on to consider all the facts and circumstances of the case.

   2. (2)

      The Tribunal did not misunderstand the McDonough categories. I have earlier dealt in detail with those categories and the Tribunal’s application of them. In particular, the Tribunal properly understood that Category 2 applied where the Tribunal is left in the position of having no real idea as to how the prohibited substance came to get into the horse [21] . The fact that the plaintiff did not establish that he fell under Category 3 simply entailed that he did not receive the benefit of a finding of that kind but left open the wide range of considerations available under Category 2. The Tribunal did not mechanically and explicitly omit two of the theories under AHRR r 256.

   3. (3)

      The Tribunal did not find that McDonough Category 2 mandates a disqualification. The Tribunal came to a view that disqualification should arise having regard to the need for general deterrence. As to objective seriousness of the offending, it was not an error to consider the McDonough categories (see at [272] of the decision).

   4. (4)

      I have earlier dealt with the appropriate understanding of the latter part of [265] of the decision. I accept the submission advanced by the first defendant that it was open to the Tribunal to consider that a fine would be a less serious penalty then disqualification. In any event, that conclusion does not display any error or law or jurisdictional error.

   5. (5)

      The Tribunal exhibited a clear awareness of the available penalties but considered the appropriate penalty was disqualification on the facts and circumstances of the case before it.

   6. (6)

      As earlier discussed, the plaintiff’s contention that the Tribunal had accepted that the only open conclusion was that there was no unknown cobalt source should be rejected.

3. [214]

   The first defendant is correct to submit that, in order to accept the plaintiff’s contentions in this respect, the Court would need to reject the Tribunal’s express reasoning process such that the express reasoning process would not be accepted as the Tribunal’s actual reasoning process. In my view, there is no proper bases for the plaintiff’s contentions in that respect.

4. [215]

   My reasons for that consideration are as follows:

   1. (1)

      At [268] of the decision, the Tribunal found as earlier observed that the more critical factor than the penalty guidelines is “the actual conduct established against the appellant and the facts and circumstances of this case”. The Tribunal also observed that no greater penalty than the facts and circumstances warrant should be imposed.

   2. (2)

      The Tribunal noted that the starting point under the penalty guidelines was 5 years (at [295]). The Tribunal then stated that, in the circumstances of this case, the starting point should be 4 years disqualification. The Tribunal proceeded, on the facts and circumstances of the case, to reduce the penalty overall by 4 years and 3 months, namely, 10% of the disqualification period under the penalty guidelines.

5. [216]

   In my view, there is no proper basis to conclude that the Tribunal did not give effect to its stated reasoning. There can be no criticism of the Tribunal’s reference to the penalty guidelines as properly conceded by the plaintiff. The Tribunal considered all of the facts and circumstances of the particular matter and then exercised a discretion to penalise the plaintiff at a point significantly less than what the penalty guidelines would have imposed (which penalty itself represented a reduction in the penalty upon the appeal).

6. [217]

   The plaintiff’s submissions were essentially that the Tribunal considered itself to be hide bound by precedent such that the Tribunal found that it must disqualify the plaintiff. However, this does not properly represent the reasoning of the Tribunal or recognise that the Tribunal determined the penalty based upon the facts and circumstances of the case before it. In any event, the Tribunal’s reference to precedent was only in relation to the issue of parity (at [281]).

7. [218]

   The reference by the Tribunal to an earlier decision of Russo does not, in my view, erect a general proposition that Category 2 cases must result in a disqualification. The Tribunal clearly stated that the approach adopted was on “the facts and circumstances of that case”. Furthermore, the Tribunal observed that, in Russo, general deterrence was found to be needed at a high level.

8. [219]

   If the Tribunal was asserting that it was bound by the decision in Russo and in that light, it was required to disqualify the plaintiff, regardless of any other circumstance of his case, then the plaintiff would be correct to contend that there was, at least, legal error. However, that was not the approach taken by the Tribunal as was evident from the whole of its decision including those parts which discuss Russo.

9. [220]

   In my view, Ground 3 of judicial review should therefore be dismissed.

10. [221]

    The first defendant submitted that the onus was on the plaintiff to prove that any of the errors of law identified would have given rise to a different outcome and that they have not proved that.

11. [222]

    It is unnecessary to consider the question of materiality in light of the conclusions I have reached.

Conclusion

1. [223]

   In all the circumstances, the Amended Summons should be dismissed.

2. [224]

   There remains the injunction made at the outset of the proceedings. It would be appropriate that the injunction be dissolved.

3. [225]

   On the basis that costs should follow the event, and there does not appear to be any disqualifying considerations, it would appear that an order should be made for the plaintiff to pay the first defendant’s costs.

4. [226]

   However, given, at least, the proceedings for the injunction, I propose to hold over any final consideration as to the question of costs for a period of 7 days. At the end of that 7-day period, the parties will either state their agreed position as to costs or alternatively propose an agreed program to dispose of the question of costs. It would appear appropriate that, if costs were disputed, the question of costs be determined on the papers. The parties should, if necessary, advise their stance on that matter. No issue of costs arises with respect of the Tribunal given that the Tribunal entered a submitting appearance.

5. [227]

   The first defendant shall bring in Short Minutes of Order within 7 days of this judgment which, in the event of a dispute as to costs, will include an agreed program for the resolution as to any issues as to costs, and an indication as to whether any issue as to costs would be resolved on the papers.

Orders and Directions

1. [228]

   The first defendant shall file and serve Short Minutes of Order reflecting this decision within 7 days of the publication thereof.