Ings v Racing New South Wales

1. [1]

   BASTEN AJ: The plaintiff is a trainer of thoroughbred racehorses. She was charged by stewards with a breach of rule AR 255 of the Australian Rules of Racing which prohibited administering “stomach tubing” to a horse within one clear day prior to 12am on the day of a scheduled race. The horse, Chur Bro, was engaged to race at Wellington on 25 September 2021; the stomach tube was administered on 24 September 2021. The breach of the rule was self-evident. The plaintiff entered an early plea of guilty when charged by the stewards. The only remaining issue was the appropriate penalty.

2. [2]

   The breach was subject to a mandatory period of disqualification of 12 months, in the absence of special circumstances. The stewards found special circumstances and reduced the mandatory period by 25%. Accordingly, the plaintiff was initially disqualified for a period of nine months.

3. [3]

   The plaintiff exercised her right of appeal to an Appeal Panel which conducted a hearing on 24 March 2022. By majority, the Appeal Panel determined that there were special circumstances warranting a discount of 75% and therefore reduced the period of disqualification to three months.

4. [4]

   Not content with that outcome, the plaintiff pursued a further appeal to the Racing Appeals Tribunal constituted under s 5 of the Racing Appeals Tribunal Act 1983 (NSW) (“Tribunal Act”). That appeal was by way of a fresh hearing and, in circumstances which will be considered further below, the plaintiff was made aware that Racing NSW, the prosecutor of the disciplinary charge, sought to have the original penalty imposed by the stewards reimposed. On 2 May 2022, the Tribunal dismissed the severity appeal and reimposed the penalty originally imposed by the stewards, namely disqualification for 9 months.

5. [5]

   There is no right of appeal from the Tribunal. The plaintiff is entitled, however, to seek judicial review of the decision of the Tribunal, pursuant to s 69 of the Supreme Court Act 1970 (NSW). By a summons filed on 2 May 2022, amended on 19 May 2022, the plaintiff has invoked that supervisory jurisdiction of this Court.

Procedural background

1. [6]

   Despite her guilty plea, originally entered on 16 November 2021 at the stewards’ inquiry, the plaintiff has yet to serve any part of the penalty imposed on her. At various stages in the proceedings so far, stays have been ordered with respect to the operation of the penalty. Clearly the matter is one which warranted an expeditious resolution. The resolution has been delayed, in part by problems relating to the health of counsel, but also, it appears, by delays in the preparation of the matter for hearing. The plaintiff’s written submissions were not filed until 22 July 2022.

2. [7]

   The material supplied in support of the application for judicial review, given the narrow confines of the available issues, is so extensive as to cast doubt on the exercise of professional judgment by those responsible. To start with the amended summons, 13 substantive orders were sought. Only one is material, namely an order quashing or setting aside the decision of the Tribunal of 2 May 2022 (order 1).

3. [8]

   The second part of the summons set out over four pages what are described as “details of decisions”. As will be explained, there is only one relevant decision, that which is the subject of proposed order 1.

4. [9]

   Leaving aside challenges to the decisions of the Appeal Panel and the stewards, there were 15 grounds of review. They will be addressed in due course. The court book extended to over 2,600 pages (copied single-sided). I indicated at the hearing that I would admit so much of the material as was referred to in submissions: otherwise, it would be rejected. The parties accepted that course, though counsel for the plaintiff was able to identify efficiently that on which she intended to rely. However, much was excluded, which leaves a question as to who should bear the costs of preparing the court book. The material which has been admitted may be found in the Schedule of Exhibits attached to this judgment.

5. [10]

   This issue has arisen in another context with the judicial review of medical assessment certificates under the Motor Accidents Compensation Act 1999 (NSW). In a case in which the court books totalled a little over 2,000 pages, Insurance Australia Ltd t/a NRMA Insurance v Milton, [1] the Court of Appeal proposed that the costs of producing thousands of pages, arguably without reasonable cause, were costs which should be borne by the solicitor responsible for taking that course, pursuant to an order under s 99(1)(b) of the Civil Procedure Act 2005 (NSW). Proposed orders were indicated in Milton at [70]. On the assumption that the plaintiff is the party who would otherwise bear those costs, the court is prepared to consider making such an order in the present case and the plaintiff should be so advised.

6. [11]

   Before turning to the grounds of review, it is convenient to outline the issues which were addressed and resolved by the Tribunal.

Legal framework

1. [12]

   Because there was no dispute that the offence under AR 255 had been committed and the minimum period of disqualification (for 12 months) applied, absent a finding of special circumstances, it is not necessary to set out the whole of the rule. However, the relevant parts, as at 1 August 2021, read:

2. [13]

   The only potentially relevant legal issue arose from the last four words. They raised two questions. First, was the penalty which might be reduced the prescribed minimum (12 months disqualification) or such other penalty as may have been imposed, potentially in excess of 12 months? Secondly, did the reduction allow only a lesser period of disqualification, or did it permit a different (less severe) penalty, such as a fine?

3. [14]

   For present purposes, the first question did not arise as the Tribunal found that, had there not been a prescribed minimum, a period of disqualification would have been imposed but for a lesser period. However, the second question was engaged, the plaintiff submitting that the reduction of the minimum period of disqualification did not require a period of disqualification.

4. [15]

   The rules, as at August 2021, made further provision for penalties in AR 283. AR 283(6) prescribed minimum periods of disqualification “unless there is a finding that a special circumstance exists, in which case that penalty may be reduced”, echoing the words of AR 255(2). Paragraph (j) of AR 283(6) operated in relation to AR 255(1) and in conformity with AR 255(2). The only relevance of AR 283 is that, prior to amendments made in January 2019, the equivalent rule was AR 196. That rule is referred to in LR 108 under the Local Rules of Racing NSW, which defined “special circumstances”. LR 108(2) relevantly provided:

5. [16]

   In the present case, Racing NSW conceded that par (a) was engaged, but did not accept that par (b) was engaged. The plaintiff relied upon par (b)(i), namely that she had established on the balance of probabilities that she had impaired mental functioning which was causally linked to the breach and substantially reduced her culpability.

6. [17]

   The right of appeal to the Tribunal arose under s 15 of the Tribunal Act. The procedure on appeal is set out in s 16, which reads as follows:

7. [18]

   The powers of the Tribunal are set out in s 17, relevantly as follows:

Factual findings

1. [19]

   There was, appropriately given the nature of a review in this Court, no attempt to reagitate factual findings made by the Tribunal. Accordingly, the relevant findings may be briefly stated.

2. [20]

   The most significant finding related to the question of impairment and its relationship with the breach of AR 255. That finding was relevant to a number of grounds which alleged error in articulating the correct test of causation.

3. [21]

   First, the Tribunal addressed the question of special circumstances for the purposes of LR 108(2)(a), namely whether the plaintiff had pleaded guilty “at an early stage and assisted the stewards” in investigating and prosecuting the breach. The Tribunal noted that it was common ground that each of the elements of that provision had been satisfied. The Tribunal concluded:

4. [22]

   In considering the particular circumstances of the case, the Tribunal made findings favourable to the plaintiff. [2] The Tribunal was satisfied that the conventional discount for plea and assistance was 25% and neither the parties nor the Tribunal was aware of any case in which a greater discount had been given on that basis. [3] The Tribunal found that 25% was the appropriate discount in this case under LR 108(2)(a).

5. [23]

   The Tribunal then turned to consider the ingredients necessary to establish special circumstances under LR 108(2)(b), by way of “impaired mental functioning”. The Tribunal set out the relevant evidence, and accepted the plaintiff’s description of her condition. [4] The Tribunal considered the scope of the requirements of “impaired mental functioning” in an extensive passage which is not the subject of review. [5] The Tribunal accepted that the plaintiff had established on the balance of probabilities that at the time of the commission of the offence she had “impaired mental functioning”. [6] A submission that she was also suffering from “duress” under LR 108(b)(ii) was rejected and is not the subject of a ground of review. [7]

6. [24]

   The presently critical findings related to causation and culpability.

7. [25]

   The Tribunal set out in some detail the evidence given by the plaintiff at various stages in the investigation and the hearings, and the evidence in relation to her communications with the veterinary surgeon, Dr Corones. A short factual point was that the plaintiff had formed a particular view about how the “24-hour” rule had operated in the past, and particularly since 2013 and had not appreciated a change in wording in 2019. She had been of the view over many years that drenching could not take place by means of a stomach tube less than 24 hours before the time the horse was due to race. She did not appreciate that the 24- hour prohibition applied to that period before midnight at the beginning of the day on which the horse was due to race. In those circumstances, the Tribunal made the following findings:

8. [26]

   The Tribunal noted that the conclusion on causation meant it was not necessary to deal with the question of substantial reduction of culpability. Indeed, there may have been a degree of artificiality in proceeding to address that question. Nevertheless, the Tribunal did address it, but found that there had been no reduction in culpability as a result of her impairment. [8]

9. [27]

   Finally, the Tribunal considered whether the penalty could be reduced to a penalty other than disqualification, the only relevant special circumstance affecting the mandatory minimum period of disqualification being that provided for in LR 108(2)(a). The Tribunal concluded, as a matter of fact, that no other form of penalty was appropriate. [9] Nevertheless, the Tribunal took the further step of considering whether the language of the rule permitted the imposition of a different (less severe) penalty and determined that it did not. Rather, the rule permitted a reduction of the period of disqualification. That reading was consistent with the decision of this Court in James McDonald v Racing New South Wales [10] , which the Tribunal applied, on the basis that the rewording of the rule in 2019 did not affect its legal meaning. It was submitted by the plaintiff that this ruling involved an error of law. It may be noted, however, that that ruling appears in the reasons after the finding that no other penalty was appropriate.

10. [28]

    The Tribunal imposed a period of disqualification of 9 months. [11]

Grounds of review

1. [29]

   There were 15 separate grounds challenging the decision of the Tribunal. However, it is convenient to group them as follows:

   1. (1)

      Principles of causation under LR 108(2)(b) – grounds 1-4, 13;

   2. (2)

      Findings of fact regarding the effect of the plaintiff’s impaired mental condition and culpability – grounds 5, 6, 7 and 12A;

   3. (3)

      The failure to give a “Parker warning” before increasing the penalty – ground 10;

   4. (4)

      Having found special circumstances, whether the question of penalty was at large – grounds 8, 9, 12 and 14; and

   5. (5)

      Failing to consider what penalty would be appropriate absent a mandatory minimum penalty provision – ground 11.

2. [30]

   In written submissions, the plaintiff stated that grounds 11, 12 and 12A were only relevant to establishing the materiality of the errors in the event that one or more of the grounds (other than that relating to the Parker warning) were established.

Principles of causation: grounds 1-6

1. [31]

   The fundamental challenge to the decision of the Tribunal concerned the way in which the Tribunal dealt with the question of causation. That is, having found that the plaintiff was suffering from impaired mental functioning, was it established that that state was “causally linked to” the breach of rules and “substantially reduced” her culpability?

2. [32]

   Ground 1 asserted that the Tribunal erroneously stated that neither party had “sought to examine the two tests by analysis, caselaw and so on”. Ground 2 alleged that the Tribunal did not “properly articulate the causation test it relied upon”. Grounds 3-6 variously alleged that the finding made by the Tribunal, in failing to be satisfied as to a causal link either misunderstood the plaintiff’s case, engaged in illogical and contradictory reasoning, or made a finding that was irrational.

3. [33]

   These grounds may conveniently be dealt with together, but it is helpful to commence by outlining the substance of the plaintiff’s case, as presented in this court. Shortly stated, the plaintiff accepted that, prior to the breach, she had laboured under the misconception that the rule prevented the administering of a stomach tube in the 24 hours before the horse was to race. She also accepted that that misunderstanding pre-dated her period of impaired mental functioning. However, during that period of impaired mental functioning, the Tribunal had accepted that Dr Corones had told the plaintiff (when he understood the horses were to race on Sunday) that they needed to be drenched 48 hours before, or on the Friday”. [12] The plaintiff then submitted that were it not for her impairment, she would likely have realised that Dr Corones’ advice was inconsistent with her understanding as to how the rule operated. Accordingly, the impairment materially contributed to her breach of the rule.

4. [34]

   The second step in the reasoning was that the Tribunal failed to make that finding because it implicitly adopted a “sole causation” test rather than one which was satisfied by a material contribution. In that way, she submitted, the Tribunal misconstrued the rule and failed to refer to the plaintiff’s counsel’s submissions on that issue. Indeed, as noted above, the Tribunal appeared to deny that any submissions had been made on that topic.

5. [35]

   None of the steps in this argument can be accepted.

6. [36]

   So far as the proper test was concerned, the Tribunal concluded that both expressions, namely that requiring a causal link between impairment and breach and that requiring a substantial reduction in culpability, were to be understood in their “ordinary meaning” which did not require further analysis. [13] The Tribunal did not err in taking that approach. First, the rules are not drafted with close attention to precise language. There are, as counsel for the defendant noted, a range of expressions used to identify a causal connection between events and consequences. Secondly, they are not drafted with close attention to a lawyer’s appreciation of particular words. They should not be construed by reference to standards which might operate with respect to statutory language drafted by professional parliamentary counsel. As Leeming JA noted in Day v Harness Racing New South Wales: [14]

7. [37]

   Lord Wilberforce said in Heatons Transport (St Helens) Ltd v Transport and General Workers Union, [15] in relation to a union rule book:

8. [38]

   Leeming JA, dealing with the local rules of harness racing, adopted the approach of Lord Diplock in considering rules of the UK National Union of Journalists: [16]

9. [39]

   As further noted in Day, Warner J in Jacques v Amalgamated Union of Engineering Workers (Engineering Section), [17] also dealing with union rules, after referring to statements of similar principle in earlier authorities in the House of Lords, concluded:

10. [40]

    In the present case, it is significant that the rules relating to penalties were to be applied by the stewards dealing with breaches in what might be described as a summary way, and with appeal panels sitting on appeal from the stewards, and only finally by a tribunal chaired by a lawyer. There is no reason to suppose that the extremely common concept of causation, as incorporated in the Australian Rules of Racing, is to be subject to some close philosophical or legal analysis. The Tribunal would have been wrong to adopt such an approach, but it did not do so. Its reliance upon the ordinary meaning of the language used was clearly correct.

11. [41]

    The plaintiff’s submissions on this point referred to March v E & MH Stramare Pty Ltd [18] in the High Court, and in particular the reasons of Mason CJ. That was a strange choice in the present context. First, March involved a question of causation in tort. This case has nothing to do with the attribution of liability for injury caused by a negligent act. Secondly, March was concerned to remove the confusion “surrounding the legal concept of causation” occasioned by the differing terminology employed in several cases. [19] Thirdly, that case is authority for the proposition that the cause of a particular occurrence “is a question of fact which ‘must be determined by applying common sense to the facts of each particular case’”. [20] It is not apt to qualify as a question of law.

12. [42]

    Fourthly, there is a distinction relevant in tort law and now reflected in s 5D of the Civil Liability Act 2002 (NSW), which derives from the following observations of Mason CJ:

13. [43]

    As Dixon CJ, Fullagar and Kitto JJ remarked in Fitzgerald v Penn, [21] “it is all ultimately a matter of common sense” and “[i]n truth the conception in question [ie causation] is not susceptible of reduction to a satisfactory formula.”

14. [44]

    It is not clear (nor was it suggested in submissions) that any element of policy judgment was involved in determining whether there was a causal link between the plaintiff’s impairment and her breach of the rule. Accordingly, determination of whether there was a causal link was a pure matter of fact for the Tribunal, applying common sense.

15. [45]

    Before identifying how the Tribunal reasoned to its critical conclusion, it is convenient to return to ground 1, and the proposition that the Tribunal ignored the plaintiff’s submissions. There are three broad answers to this proposition. The first, it was submitted by counsel for the defendant, was that the Tribunal referred on several occasions in the course of its decision to the plaintiff’s submissions. It is not necessary to record the references, as the plaintiff conceded in reply that that was so, but responded that reference to some submissions did not mean there had been reference to the particular submission on causation, which was expressly denied in the statement:

16. [46]

    Secondly, while there were submissions on causation, they did not invite much by way of analysis, both for the reasons already given in relation to the proper approach to causation, and by reference to their substance. The appellant’s outline of submissions provided to the Tribunal on the day of the oral hearing, contained one paragraph in respect of causation, which read as follows:

17. [47]

    The words used in the rule were “causally linked to”. Apart from using the word “because” and applying a “but for” test, the submission merely stated that the impairment “caused or contributed to” her breach of the rule (a submission as to the factual conclusion sought). The written submission, understandably, undertook little by way of “analysis”. At least with regard to that aspect of the dual test required to be applied (the other involving a substantial reduction in culpability) there was no misstatement by the Tribunal in saying that there was no analysis of the test. Of course, it would not matter whether or not the plaintiff did “analyse” the test (which at [214] the Tribunal declared was not required), the only relevance of the single sentence at [213] being the implication drawn from it that the Tribunal was not aware of the plaintiff’s submissions. No such implication was available on that material.

18. [48]

    There was some further discussion of the causal link in oral submissions, although it did not appear to be suggested that the Court should infer that the Tribunal had not given regard to the oral submissions made to it about seven days before it delivered its decision.

19. [49]

    The oral submissions certainly did not purport to be offering some novel or out of ordinary usage analysis. Counsel submitted to the Tribunal: [22]

20. [50]

    Accordingly, with respect to causation, the proposition that the Tribunal disregarded some material aspect of the plaintiff’s case, and did not apply a correct legal test, must be rejected.

21. [51]

    There remains a question as to whether the reasoning of the Tribunal in reaching its factual conclusion was internally inconsistent, illogical, or irrational.

22. [52]

    These grounds must be approached with a degree of caution. First, the plaintiff accepted that, as the rules expressly provided, she bore the burden of establishing the necessary causal link between her impairment and her breach of the rule. Accordingly, she could not complain that there was “no evidence” to support the finding of fact, thus invoking an error of law by the Tribunal. Such a submission would have ignored the principle stated in Azzopardi v Tasman UEB Industries Ltd, [23] 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 the tribunal of fact to accept or reject any evidence”. Nor can the burden be evaded by the use of double negatives, namely that there was no evidence to support the negative finding that there was no causal link.

23. [53]

    Once these constraints are noted, a complaint that there are internal inconsistencies in the reasoning of the Tribunal, or that its reasoning is in some way illogical, will not raise an error of law, let alone a jurisdictional error, as asserted. Mason CJ stated in Australian Broadcasting Tribunal v Bond: [24]

24. [54]

    Boldly, the plaintiff asserted that the reasoning of the Tribunal was “irrational”. As will be explained, this was patently unsustainable. Finally, it was submitted that the finding of fact was manifestly unreasonable. Again, as will be explained, that conclusion was not available once one has regard to the reasoning of the Tribunal. However, there is a more fundamental problem in that it would appear to be quite inconsistent with the passages from the judgments of the High Court set out above to state that a factual finding can be challenged on that basis, unless it is the ultimate outcome. Counsel for the defendant submitted that legal unreasonableness is a standard which applies only to the process of decision-making and not to a finding of fact. Understood as encompassing a challenge to the outcome, which was not in dispute, that submission should be accepted. [27]

25. [55]

    It follows that the standard of legal unreasonableness may be applied even where the steps taken in reaching the outcome are fully set out in reasons and reveal no error of law. In that circumstance, the error of law is identified as a failure to comply with a standard of reasonableness required by the statute. [28] How that standard was to be identified in the Australian Rules of Racing was not addressed. Rather, the plaintiff assumed that some such standard as serious unreasonableness, close to irrationality, was sufficient to invalidate the decision.

26. [56]

    The plaintiff made submissions as to the seriousness of the penalty of disqualification for a licensed trainer. It may be accepted that those considerations will affect the standard by which reasonableness is to be judged, an approach adopted by Edelman J (albeit in dissent) in Plaintiff M1/2021 v Minister for Home Affairs. [29]

27. [57]

    In any event, assuming that there is a strict standard of reasonableness to be implied from the operation of the Australian Rules of Racing, breach of that standard can only be identified by reference to the reasoning of the Tribunal or the outcome. The nature of the connection between the impairment and the breach required careful consideration of the nature of the impairment, and the conduct of the plaintiff, in order to be satisfied that there was the relevant causal link. To demonstrate that no sufficient level of unreasonableness was established it is necessary to have regard to key aspects of the reasoning.

28. [58]

    The reasoning of the Tribunal in this respect was comprehensively explained at pars 211-288. The conclusions reached by the Tribunal were not merely that the plaintiff had failed to prove a causal link, but that the Tribunal was satisfied of the contrary: at pars 287-288. The Tribunal considered that the evidence in this regard was “quite clear”: at par 267.

29. [59]

    Key passages in the Tribunal’s conclusions have been set out at [25] above, but the substance of the reasoning should be expanded:

30. [60]

    The precise issue raised by the plaintiff, namely that her impairment led her not to appreciate what Dr Corones was saying, was addressed in the following passages:

31. [61]

    It should be emphasised that these conclusions were preceded by specific findings as to particular evidence. Thus, earlier in the Tribunal’s reasons were findings as to the nature of the plaintiff’s impairment, which relied almost entirely on the plaintiff’s own evidence: there was little by way of supportive medical evidence. She complained of “severe post-viral fatigue and exhaustion”, together with pain, sleep disturbance, anxiety and depression. [30] She gave evidence that she suffered from “a combination of all these factors”, that she was “not her normal self”, and that her daughter said she was “very difficult to live with because of the stress she was creating”. [31] The Tribunal noted:

32. [62]

    The Tribunal addressed the evidence of Dr Bertucen. Dr Bertucen stated that he was “not persuaded that Ms Ings was suffering from a diagnosable psychiatric illness”, however, she was suffering from “a combination of stressors which, in my view, would be likely to cause in a person of ‘normal fortitude’ symptoms of low mood [and] anxiety and associated features … including reduced concentration, forgetfulness and distractibility”. [32] He thought it was “possible that Ms Ings may also have been suffering from post-viral effects of fatigue, general malaise and exhaustion”. [33]

33. [63]

    In cross-examination, Dr Bertucen confirmed that her conditions were “subclinical” and did not reach a diagnosable mental illness. [34] As noted above, the Tribunal did not accept Dr Bertucen’s assumptions. The Tribunal nevertheless accepted that the plaintiff was suffering from “impaired mental functioning”. [35] It will be convenient to return to aspects of Dr Bertucen’s evidence after addressing further the plaintiff’s beliefs.

34. [64]

    The Tribunal also addressed the relevant evidence as to the appellant’s beliefs with respect to the operation of AR 255. That evidence was identified as follows:

35. [65]

    The Tribunal then considered the appellant’s evidence to the Appeal Panel with respect to her arrangements with Dr Corones and set out the following passages from her evidence:

36. [66]

    Further evidence of Dr Corones was set out, but it is not necessary to repeat it given the findings in favour of the plaintiff with respect to his evidence.

37. [67]

    However, aspects of the evidence of Dr Bertucen are important, including the following passages:

38. [68]

    As to the passage set out from par 251, it was significant that Dr Bertucen thought that the stressors had caused the plaintiff to misunderstand the rule. Not only was that inconsistent with her evidence, but there was no material basis to support that conclusion. It is unsurprising that the Tribunal rejected it.

39. [69]

    Secondly, with respect to the critical question as to whether her mental condition affected her ability to give instructions to the vet and understand or appreciate his advice, the passage at par 253 indicates that Dr Bertucen was equivocal in his responses. The findings in these passages were rejected by the Tribunal at pars 281 and 283 set out above. There was nothing irrational or unreasonable in that approach.

40. [70]

    These matters are sufficient to dispose of the grounds relating to the manner in which the Tribunal dealt with causation. The reasoning of the Tribunal was not merely rational, it was careful, coherent and comprehensive. There were no internal inconsistencies. The outcome was unremarkable, given the evidence. If not plainly reasonable, the outcome fell well within the bounds of legal reasonableness.

41. [71]

    It follows that grounds 1-6 must be rejected.

Effect of finding of special circumstances: grounds 8 and 9

1. [72]

   Ground 8 challenged the Tribunal’s conclusion that if special circumstances were found, the course required of the Tribunal was to determine the appropriate period of disqualification. The Tribunal held that it was not open to it to conclude that some lesser penalty, not involving a period of disqualification, was available. The plaintiff submitted that the Tribunal erred in failing to consider the possibility of a suspension or fine.

2. [73]

   Ground 9 asserted that a finding of special circumstances opened a “gateway” to the consideration of all the objective and subjective matters which might go to a determination of an appropriate penalty. On one view, that approach was consequential on the proposition that the penalty was at large; on another view, it might have been seen as having a general operation regardless of whether the Tribunal was restricted to consideration of a period of disqualification. On either basis, ground 9, like ground 8, was engaged if any form of special circumstance were accepted. In this case, quite apart from the finding of impaired mental functioning, the plea of guilty engaged the same approach.

3. [74]

   The principal argument in favour of these grounds relied on the use of the word “penalty” in each of AR 255(2) and AR 283(6). The term “penalty” was defined in AR 2 to include “the suspension or partial suspension of any licence, disqualification, reprimand and the imposition of a fine”. Accordingly, it was submitted, the use of the word “penalty” in the offence-creating rules required the insertion of that definition and thereby expanded the scope of available penalties beyond disqualification.

4. [75]

   This reading of the rules is untenable. Both rules use the phrase “that penalty” to identify the subject matter of possible reduction. In each case, the reference is to the minimum period of disqualification which is to be imposed absent special circumstances. There is no plausible constructional choice to be made.

5. [76]

   In McDonald, Rein J held that the phrase then found in former AR 196(5) which read, after referring to a finding of special circumstances, “whereupon the penalty may be reduced”, meant that there was to be a penalty of disqualification but not one necessarily reaching the minimum period. [36] While the reasoning of Rein J was expressed to be obiter, it was clearly correct. The change to the present rule involved the removal of the word “whereupon” and its replacement with “in which case”. This change, which was part of a course of modernisation of the rules, involved no change in meaning. The reasoning in McDonald remains correct, notwithstanding the change in wording, which was immaterial.

6. [77]

   The contention that what may be reduced is the penalty of disqualification, rather than the minimum period, cannot be the preferred reading of the provision. Further, as counsel for the defendant noted, the reworking of the rules occurred some two years after the decision in McDonald. It may be assumed that a body responsible for republishing and, where necessary amending, the Australian Rules of Racing would be aware of a Supreme Court decision regarding the construction of a particular rule. That it did not amend the rule is supportive of the then authoritative construction being accepted as correct. [37]

7. [78]

   Ground 8 must be rejected.

8. [79]

   Ground 9 is addressed to the factors affecting the penalty, rather than the nature of the penalty itself. However, where the nature of the penalty is fixed, those factors cannot operate in the way that they might otherwise operate. As Rein J noted, in the ordinary course of events, consideration of the circumstances affecting an appropriate penalty will precede the operation of the rule providing for a minimum period of disqualification. If that exercise results in a period of disqualification exceeding the minimum period, there will be no work for the special circumstance exception. The fact of the plea and the diminution of culpability otherwise falling within the concept of special circumstances will already have been factored in.

9. [80]

   If the circumstances otherwise did not warrant disqualification for 12 months, it would be anomalous if those same factors were required to be considered in determining the reduced penalty merely because special circumstances of a particular kind had been established. The better view is that the reduction for an established special circumstance should be determined by reference to that circumstance. The Tribunal had regard to an appropriate reduction on account of a plea of guilty, noting that 25% appeared to be the going rate, by reference to other known cases. There was no error in treating that as an appropriate discount without revisiting the subjective and objective considerations which were otherwise relevant to determining penalty. Ground 9 should be rejected. However, it should also be rejected as based on a false premise, which requires reference to ground 11.

Failure to consider appropriate penalty: ground 11

1. [81]

   In written submissions, the plaintiff identified grounds 11, 12 and 12A as supportive of the element of materiality in the event that at least one of the earlier grounds (other than ground 10) were to be upheld. However, ground 11 had potential relevance to the substantive issue raised by ground 9. Ground 11 asserted that in imposing a penalty the Tribunal “did not first consider what if any penalty would be appropriate absent a mandatory minimum penalty provision.”

2. [82]

   The short answer is that the Tribunal did just that. Having set out all the relevant background material, the Tribunal determined that objective seriousness was “patent” and that, consistently with prior decisions of the Tribunal, disqualification was the appropriate form of penalty. [38] The Tribunal then accepted the “unchallenged, very strong subjective factors in favour of the [plaintiff]” but found that they were not sufficient to reduce the penalty below a disqualification. [39] The Tribunal then held that the appropriate period of disqualification, absent the mandatory minimum, was less than a period of 12 months. It was neither necessary nor appropriate for the Tribunal to determine a specific period, given that the mandatory minimum was thereby engaged. (As noted above, it would not have been engaged had the otherwise appropriate penalty exceeded disqualification for 12 months.) In short, the Tribunal undertook the exercise which, according to ground 11, it had failed to undertake. Ground 11 should be rejected.

Procedural unfairness: ground 10

1. [83]

   Ground 10 was expressed in terms which revealed its origins, namely criminal procedure in New South Wales. It complained of the absence of a “Parker warning”, referring to the decision of the Court of Appeal in Parker v Director of Public Prosecutions. [40] Parker bore a similarity to the present proceedings in that it was concerned with an appeal by way of fresh hearing from the Local Court to the District Court. Mr Parker had been charged with three offences arising out of a fight in a carpark. In the Local Court, he was fined and received a recognizance to be of good behaviour for two years. He appealed to the District Court. Without adequate warning that he proposed to impose a custodial sentence, the District Court judge sentenced him to imprisonment for four months. The Court of Appeal held that there had been procedural unfairness in failing to warn Mr Parker that such a course was being considered, so as to allow him an opportunity to withdraw his appeal.

2. [84]

   The case provides an example of circumstances of procedural unfairness. The use of the label “Parker warning” takes the matter no further. The common element with the present case is that the proceedings before the Tribunal involved a fresh hearing with the question of penalty being potentially at large. There are two matters which differentiate the cases. First, this was a second appeal, in circumstances where the initial decision-makers (the stewards) had imposed a higher penalty than that imposed by the Appeal Panel from which the appeal to the Tribunal was brought. Secondly, and importantly, the plaintiff was made aware by two express statements that the defendant would propose at the hearing the higher penalty imposed by the stewards.

3. [85]

   It is to be recalled that the Tribunal heard the appeal on 26 April 2022. More than two weeks earlier, on 8 April, the defendant sent an email to the Tribunal, to the plaintiff and to the plaintiff’s counsel, identifying the defendant’s position before the Tribunal. First, the email noted that, in accordance with the decision of this Court in Vasili v Racing New South Wales, [41] the whole of the decision was at large. The email continued:

4. [86]

   Thus, well before the hearing the plaintiff was on notice that the defendant was seeking to have the penalty imposed by the stewards reinstated. That would be sufficient to dispose of this ground. However, that position was reinforced on 25 April 2022 when the Tribunal, the plaintiff and her counsel were provided with an outline of submissions for Racing NSW which repeated the notice by way of introduction and concluded by identifying the order sought as disqualification for nine months. Finally, the defendant’s position was confirmed orally at the commencement of the hearing on 26 February.

5. [87]

   Unsurprisingly, there was no evidence from the plaintiff as to what approach she would have taken had she not received such a warning. In a sense, that did not matter because all that procedural fairness required was an opportunity for her to consider her position. Had she sought to withdraw her appeal, it is quite possible that the defendant would have lodged its own appeal, a course it has now taken, not as a concession that such a step was necessary, but to allow a submission that upholding the ground on the basis that there had been no notice of appeal by the defendant would lack utility, because the matter would simply be remitted for the hearing of any outstanding appeal.

6. [88]

   It is not necessary to explore the last point further; there was no denial of procedural fairness. Ground 10 must be rejected.

Conclusions

1. [89]

   As none of the grounds of review has been upheld, the summons seeking judicial review must be dismissed. The Court makes the following orders:

   1. (1)

      Dismiss the amended summons for judicial review of the decision of the Racing Appeals Tribunal of 2 May 2022.

   2. (2)

      Order that the plaintiff pay the first defendant’s costs in this Court.