Day v Sanders; Day v Harness Racing New South Wales

1. [1]

   BASTEN JA: The applicants are, or were until disqualified, licensed as trainers in the harness racing industry. The disqualification of each resulted from three horses (one trained by Neil Anthony Day and two trained by Dean Albert McDowell) testing positive for excessive cobalt in their urine at races conducted on 24 and 28 February 2014 respectively.

2. [2]

   Upon receiving the results of the urine tests on the three horses, the first respondent, Mr Reid Sanders, Chairman of Stewards, imposed an immediate interim suspension on each applicant, by letter dated 30 April 2014. (That step gave rise to litigation in this Court to which further reference will be made below.)

3. [3]

   Two charges were laid against Mr McDowell and one charge against Mr Day, pursuant to r 190 of the Australian Harness Racing Rules, alleging that the respective horses had not been presented for a race “free of prohibited substances.” Hearings were held on 12 March and 13 March 2015; neither Mr McDowell nor Mr Day attended the hearing with respect to the charge or charges laid against him. On each day, counsel attended and advised the stewards that the defendant would not be attending and sought to have the hearing adjourned. When that application was refused, counsel withdrew and the panel proceeded to deal with the charge or charges in their absence. With respect to Mr McDowell, each charge was found proven and a period of disqualification for 4.5 years was imposed for each, the periods to be served concurrently. With respect to Mr Day, the one charge was found proven and he was disqualified for four years.

4. [4]

   It being an offence, pursuant to r 187, to fail to attend before the stewards at an inquiry or investigation when directed to do so further charges were laid against each with respect to their non-attendance when the charges under r 190 were dealt with. On 6 May 2015, additional penalties of three years three months (in the case of Mr Day) and three years six months (in the case of Mr McDowell) were imposed with respect to their failures to attend.

5. [5]

   Each applicant has a right of appeal to the Racing Appeals Tribunal against the findings and penalties imposed by the stewards’ panel and each has exercised that right. That appeal extends to any aspect of the findings, whether as to fact, discretion or law. The applicants will be entitled, if they wish, to present evidence before the Tribunal which was not presented to the stewards. They are not, therefore, without remedies, whether or not they succeed in this Court. Nor is it suggested that there will be any delay in listing the appeals for hearing before the Tribunal, if they are to proceed.

6. [6]

   For reasons to be explained below, the present application for leave to appeal from the decision of Adams J (refusing a stay on the proceedings before the stewards) must be dismissed and that from the judgment of Adamson J (refusing relief on other grounds) granted, but the appeal dismissed.

Nature of charges and grounds of appeal

1. [7]

   Before identifying the procedural background, it is convenient to identify the substantive issues raised by way of challenge to the proceedings before the stewards. The challenges are broadly twofold, namely:

2. [8]

   Despite appearances, these challenges are interrelated. The factual basis to the bias claim arose from a statement by Mr Sanders to Mr Day some months prior to the date of the positive results in which Mr Sanders is said to have assured Mr Day that a trainer who merely used pre-mixed feed and proprietary supplements in accordance with manufacturer’s directions would not breach the ceiling for cobalt in urine. That statement was said to have induced a belief in Mr Day that the cobalt levels would not be exceeded unless the horse was “given cobalt chloride”.

3. [9]

   The apprehension of bias was said to arise in three ways:

4. [10]

   Accepting each of these propositions at face value, it is necessary to identify the logical connection between them and the issues to be determined at the stewards’ inquiry. That in turn depended on the proper construction of r 190, which reads as follows:

5. [11]

   The first critical issue is whether the rule requires any mental element (that is state of mind or awareness) on the part of the person charged. Secondly, if it does not, can a particular belief provide a defence? The proposed defence was articulated as the existence of an honest and reasonable mistake of fact. (The mistake was, presumably, as to how a prohibited level of cobalt in the horse’s urine could come about; the precise terms of the mistaken belief were not formulated.)

6. [12]

   The applicants did not contend that any element of intention, recklessness or negligence formed part of the offence: they did, however, contend that they had a defence of honest or reasonable mistake of fact or, possibly, as expressed in a New Zealand case, of having taken reasonable precautions to avoid the offence.

7. [13]

   The logical connection between the basis of the claim of pre-judgment (or conflict of interest as it was also put) and the issues before the stewards’ panel would depend on the proposed defence. This was not a matter which could be determined in the abstract: it was necessary to inquire as to the defence run or proposed to be run before the inquiry.

8. [14]

   At that point, the procedural steps taken so far became critical. That is because the inquiries have been held, in respect of Mr McDowell on 12 March 2015 and in respect of Mr Day on 13 March 2015. Neither attended; neither raised any affirmative defence. It follows that the context within which any reasonable apprehension of bias might have been perceived did not arise. Absent an articulated affirmative defence, the challenge was properly rejected. It also follows that, no affirmative defence having been run, no question arose before the stewards as to whether any defence was available. However, there remains a possible issue as to whether there is an available defence to the r 190 charges which could be run before the Racing Appeals Tribunal.

9. [15]

   As to penalty, the applicants tendered no evidence and made no submissions; nevertheless they allege that because of an apprehension of bias on the part of Mr Sanders, the findings should be set aside. There was otherwise no challenge to the results of the stewards’ inquiry.

10. [16]

    Before addressing the applicants’ arguments with respect to the operation of r 190, it should be noted that the respondents resisted the determination of this issue, on the basis that the question of construction had been resolved in earlier proceedings before Adamson J, which had been the subject of appeal, but had not been overturned in respect of this issue. The present appeal was from the second judgment of Adamson J, which did not raise the construction of r 190 directly.

11. [17]

    For reasons given below, the applicants are not precluded from raising the issue in this Court. To explain why that is so requires reference to the factual and procedural background to the current applications.

Background to the Harness Racing Rules

1. [18]

   In September 2013 Harness Racing NSW took steps to control the use of cobalt compounds administered to horses prior to races. That was effected by changes to rules promulgated by Harness Racing NSW making the presence of cobalt at a concentration above 200 mcg/l in the horse’s urine a prohibited substance, giving rise to an offence under the Australian Harness Racing Rules, as adopted in New South Wales.

2. [19]

   Because the construction of the specific rules depends upon their particular legal status, it is necessary to identify the context in which the rules were made. The control and regulation of harness racing is governed by the Harness Racing Act 2009 (NSW). Harness Racing NSW is a body corporate constituted under that Act. [1] It is a body corporate which does not represent the Crown and is not subject to direction or control by the government. [2] It is said to consist of five members, appointed by the Minister and recommended by a selection panel established by the Minister. [3]

3. [20]

   The functions of Harness Racing NSW include control, supervision and regulation of harness racing in this State and the registration of clubs, horses, owners, trainers and drivers. [4] It has power to do all things necessary or convenient to be done in the exercise of its functions. [5] The purpose of its registration functions is to ensure that individuals are fit and proper persons, having regard to the need to protect the public interest as it relates to the harness racing industry. [6] Harness Racing NSW has power to employ staff and engage consultants, but may also arrange for the use of the staff or facilities of the equivalent bodies having control of greyhound racing and horse racing under the Thoroughbred Racing Act 1996 (NSW). Harness Racing NSW is given power to cancel the registration of any owner, trainer or driver of harness racing horses and to disqualify such a person, either permanently or temporarily. [7] It may also suspend for such term as it thinks fit any right or privilege conferred on such a person by the Act or the rules. [8] However, those powers of cancellation, suspension and disqualification (identified in s 21) may only be exercised for disciplinary purposes or for the purposes of occupational health and safety. [9]

4. [21]

   Critically for present purposes, Harness Racing NSW is empowered to make rules, not inconsistent with the Act, for or with respect to the control and regulation of harness racing. [10] The rules may confer on stewards appointed by Harness Racing NSW the functions exercisable by that body, including the disciplinary powers under s 21. [11] Section 23 deals with the rules generally and it is convenient to set the provision out in full.

5. [22]

   On 1 September 2012 Harness Racing NSW adopted what were described as “Local Rules of Harness Racing NSW”. Exercising the power to “adopt or incorporate” other publications, local rule 1 effectively incorporated the Australian Harness Racing Rules (“the Australian rules”) which, together with the local rules, were to be known as “The Rules of Harness Racing New South Wales”. Rule 1 stated that the Australian rules and the local rules “shall be read, interpreted and construed together”. Rule 1A stated that any person who takes part in “any matter coming within [the rules] shall be held thereby to consent to be bound by them.” Local rule 90A(1) provides that a trainer is at all times “responsible for the administration and conduct of his stables” and is at all times responsible for “the care, control and supervision of the horses in his stables.”

6. [23]

   The Australian rules came into force on 1 September 1999. They are extremely detailed and bear every indication (both by way of language and structure) of having been drafted by persons familiar with statutory drafting techniques. However, they are promulgated by an incorporated association, Harness Racing Australia Inc. There was no more particular evidence about the role of Harness Racing Australia, or the manner in which the Australian rules were prepared and promulgated. (Except where it is helpful to identify a particular rule as a local rule, the following discussion will refer to “the Rules” to refer to the combined rules.)

7. [24]

   Part 2 of the Rules deals with stewards: it includes rr 14-20, to which further reference will be made below. It is sufficient presently to note the terms of r 15, which confers on stewards powers to suspend or disqualify any person from participating in or being employed or engaged in or about the harness racing industry. [12] The stewards are also empowered to inspect, examine or test “in such manner as they consider appropriate” any person or horse. [13]

8. [25]

   Part 11 of the Rules is headed “Inquiries and Investigations”. Stewards are empowered to conduct inquiries and investigations “in such manner as they think fit into any occurrence or matter at or arising out of or connected with a meeting, race or event, or into any aspect of the harness racing industry, or into anything concerning the administration or enforcement of these rules.” [14] There are rules dealing with legal representation (r 182), action pending the outcome of an inquiry (r 183) and offences with respect to refusal to attend or participate in inquiries (r 187).

9. [26]

   Part 12 of the Rules deals with “Prohibited Substances”. Rule 188A(1) identifies various agents in generic terms as “prohibited substances”. Sub-rule 188A(2) provides that specified substances “when present at or below the levels set out are excepted from the provision of sub rule 1”. Relevantly for present purposes, r 188A(2)(k) (now a national rule) provides, by way of exception:

10. [27]

    On 18 December 2013 Harness Racing NSW promulgated a first version of a new local rule. On 13 October 2014 an amended version was approved in the terms set out above. The applicants were charged under the local rule; it was the local rule which was the subject of challenge in the proceedings before Adamson J.

11. [28]

    Stewards are empowered to carry out tests and examinations to determine whether a prohibited substance “was or is in or on a horse.” [15] Rule 190, providing that horses shall be “free of prohibited substances” when presented for a race, and making it an offence if a horse is presented otherwise than in accordance with that requirement, is set out in full at [10] above.

12. [29]

    Of importance in understanding the procedure at an inquiry where a contravention of r 190 is alleged are the evidentiary provisions to be found in r 191, which reads as follows:

13. [30]

    There are separate provisions related to the administration of prohibited substances; no charge was laid with respect to breach of those sections, but it is convenient to set out r 196A, the terms of which may be compared with r 190 for the purposes of construing the latter.

14. [31]

    Part 15 of the Rules deal with “Penalties”. Relevantly for present purposes, r 256 provides:

15. [32]

    In Part 21, dealing with “General Matters” there is an interpretation provision which reads as follows:

Procedural background

1. [33]

   The local rule with respect to cobalt levels was promulgated on 16 December 2013. The charge with respect to Mr Day’s horse, Benzi Marsh, arose from a race which took place on 24 February 2014 at Goulbourn. The charges in relation to horses trained by Mr McDowell, Chevals Charlie and Twilightdancer, arose from two races conducted at Bankstown on 28 February 2014.

2. [34]

   Having received advice from the Australian Government National Measurement Institute that urine samples above the limit had been detected in each of those horses, Mr Sanders as the Chairman of Stewards, advised each of the applicants on 30 April 2014 that his “training and driving licence” had been suspended “until the further investigation and/or inquiry is concluded.”

3. [35]

   On 6 May 2014 Mr Day was advised that the inquiry with respect to his matter would take place on 21 May 2014, with the result that the interim suspension would have lasted for three weeks. On 9 May 2014 each applicant commenced proceedings in the Supreme Court challenging what became known as the interim suspension orders. The holding of the inquiry was adjourned to allow the applicants to challenge the validity of various rules, including the rule rendering cobalt in the urine above the specified level to be a prohibited substance. The proceedings were heard by Adamson J over five days in September and October 2014: judgment was delivered expeditiously on 14 October 2014. [17]

4. [36]

   The summons filed on 9 May 2014 challenged various rules, including the adoption of rr 188-188A and 190, as “ultra vires and void” or as “contrary to public policy”. The summons sought a declaration that those rules were invalid and, consequentially, that the interim suspension order was invalid. It also sought an order prohibiting the stewards from proceeding with the proposed inquiry. The thirteenth prayer for relief was for a declaration that r 190 “does not create a disciplinary offence of absolute liability.”

5. [37]

   It is not necessary to refer to the amended points of claim, except to note that they ran to 191 paragraphs over 26 pages, a factor which could have consequences for any argument based on issue estoppel. The present respondents did not seek alternative declarations. On 14 October 2014 the Court dismissed the summons; that was the only order made with respect to the relief sought by the applicants.

6. [38]

   By a notice of appeal filed on 21 October 2014, the applicants sought largely the same relief which had been sought before the primary judge. The case was given expedition, being heard on 18 November 2014 and decided on 8 December 2014. [18] The appeal considered and dismissed challenges to the validity of rr 188A, 90, 90A, 91 and 183(d). A challenge with respect to the construction of r 188A was also dismissed. The appeal was upheld, but only with respect to one issue, namely the validity of the interim suspension order (which would probably have expired, absent the otherwise unsuccessful proceedings, on 21 May 2014 when the inquiry was due to be heard). There is one other aspect of the first decision of this Court which should be noted: ground 5 in the notice of appeal had alleged error on the part of the primary judge in holding that r 190(4) excluded a defence of honest and reasonable mistake of fact. As Leeming JA explained in the first judgment:

7. [39]

   It was the finding of Adamson J with respect to the operation of r 190, not overturned in this Court, which was said to give rise to either an issue estoppel or res judicata, precluding the applicants from further challenge.

8. [40]

   The immediate effect of the first judgment of this Court was to require that, if Mr Sanders proposed to impose an interim suspension order, the applicants would be entitled to an opportunity to say why such an order should not be made.

9. [41]

   On 9 December 2014, the day following the delivery of judgment in this Court, Mr Sanders wrote to both applicants. The letter noted that since the initial letter of 30 April 2014, a second certificate had been obtained confirming the excess cobalt in the urine of the respective horses, which, it was said, amplified the concerns of the stewards noted in the earlier letter as the reason for imposing an interim suspension. The letter concluded:

10. [42]

    A similar letter was sent to Mr McDowell except that, in his case, the question of suspension did not arise because his licence had expired and the issue was whether it should be renewed.

11. [43]

    Solicitors for both applicants responded on 11 December 2014 setting out reasons why no interim suspension order should be made.

12. [44]

    On 12 December 2014 Mr Sanders wrote to Mr McDowell indicating that his licence would be renewed, and further noting that the question of suspension would be dealt with on the afternoon of Monday, 15 February 2015. The letter further advised that submissions relating to a claim of apprehended bias with respect to Mr Sanders’ involvement in the process would also be considered at that time.

13. [45]

    On 15 December 2014 the applicants commenced proceedings for damages against Harness Racing NSW, alleging defamation and negligent misstatement. On that afternoon, Mr Sanders wrote to the solicitor for the applicants rejecting the allegation against him of apprehended bias and determining that the licence of each should be suspended immediately, pending determination of the inquiry on 22 December 2014. (It will be necessary in due course to return to the allegations of bias and the responses given by Mr Sanders.)

14. [46]

    Although the inquiry commenced on 22 December 2014, it was not concluded on that day and was stood over for further hearing in early January. On 12 January 2015 the stewards constituting the panel, one of whom was Mr Sanders, delivered a decision rejecting the application that the Chairman (Mr Sanders) disqualify himself from the inquiry. The reasons for rejection will be considered further in due course. The letter concluded with a direction that the applicants appear at the resumption of the inquiry on Tuesday, 27 January 2015 at 11am (Mr Day) and 2pm (Mr McDowell).

15. [47]

    On 16 January 2015 the applicants appealed to the Racing Appeals Tribunal against the refusal of Mr Sanders to recuse himself.

16. [48]

    A right of appeal to the Racing Appeals Tribunal (“the Tribunal”) arose under s 15B of the Racing Appeals Tribunal Act 1983 (NSW) (“the Tribunal Act”). That provision confers a right of appeal on any person who is “aggrieved by any of the following decisions”, which include “a decision of a steward of HRNSW.” [19] A view appears to have been taken by the Tribunal that a decision as to the constitution of the panel, and in particular the dismissal of the recusal application, did not constitute a “decision” for the purposes of s 15B(1). Whether or not that was correct, the applicants did not appeal those decisions. Rather, on 23 January 2015, the applicants filed a summons for judicial review in the Supreme Court seeking orders quashing the decision of the stewards made on 12 January 2015 (refusing the recusal application) and the interim suspension order made on 15 December 2014. The summons also sought a declaration that the stewards panel could not continue with Mr Sanders as a member, because he was affected by apparent bias. On the same day, presumably ex parte, an urgent injunction was granted staying the stewards’ inquiry. The injunction was expressed to operate until 2pm on Wednesday, 28 January and the matter was stood over before the duty judge in the Common Law Division at 10am on that morning. The parties agreed to a stay of the inquiry pending the outcome of the summons proceedings.

17. [49]

    The summons was listed for hearing before Adamson J on 25 February 2015, judgment being delivered on 9 March 2015. [20] That judgment, being the subject matter of the present application for leave to appeal, dismissed the summons.

18. [50]

    The allegation of apprehended bias having been rejected, an officer with Harness Racing NSW forthwith sent a letter to each of the applicants directing that each attend an inquiry, commencing at 10.30am on Thursday, 12 March 2015 (Mr McDowell) and at 10am on 13 March (Mr Day).

19. [51]

    The following day, being Tuesday 10 March, the applicants filed a summons seeking leave to appeal from the judgment of Adamson J. That course provided a basis for a further application for an interlocutory injunction with respect to the stewards’ inquiry. However, no such application was made in this Court. Indeed, the following day the applicants filed a further summons in the Common Law Division seeking similar relief to that sought before Adamson J, together with an order that the proceedings be removed into the Court of Appeal. The specific relief claimed was (a) a declaration that r 190 was an offence of strict liability; (b) a declaration that the defence of honest and reasonable mistake is available in an inquiry concerning an allegation of a breach of r 190; (c) a declaration that the stewards did not have jurisdiction to find a breach of r 190 on the basis that it was an absolute liability offence, and (d) an order restraining Harness Racing NSW from exercising any powers in relation to an inquiry into the applicants, pending the determination of the proceedings.

20. [52]

    This last step involved a possible abuse of process. However, prior to commencement of either proceeding, the solicitors for the applicants had written to Harness Racing NSW foreshadowing their intentions. In an affidavit of 11 March 2015, in support of the fresh summons filed in the Common Law Division, their solicitor specifically noted the filing of a summons seeking leave to appeal from the judgment of Adamson J. The affidavit also noted a communication from the solicitors for Harness Racing NSW indicating that the inquiry scheduled for 12 and 13 March 2015 would be limited to certain preliminary matters and would not involve the finalisation of the liability phase of either inquiry.

21. [53]

    Why, in those circumstances, it was necessary for relief to be claimed in the Common Law Division at all was not explained. However, the summons issued on 11 March came before Adams J on the same day. In an ex tempore judgment, he declined to grant injunctive relief but referred “the proceedings in the summons” to this Court.

22. [54]

    Given that there was a decision (or possibly two decisions) of Adamson J rejecting the argument that a defence of honest and reasonable mistake of fact was available, it was right that Adams J declined to address that issue. Either the matter would be addressed in this Court, or it would not. Whether it was necessary or appropriate to refer to this Court so much of the summons as sought relief in respect of those substantive questions need not be determined: neither party has challenged the referral decision and subject to one qualification, it would appear to be of little moment.

23. [55]

    The qualification relates to a point which does not appear to have been fully appreciated by the applicants, namely that the interlocutory restraining order sought in the summons was, in effect, referred to this Court. That course was appropriate, given the pending application for leave to appeal from the second judgment of Adamson J, but no step was taken in this Court to pursue such relief, even after referral of the summons from the Common Law Division. Rather, and perhaps in consequence of a degree of confusion as to the proper procedural course, the applicants filed a summons in this Court on 13 March 2015 seeking leave to appeal from part of the decision of Adams J, “being the order dismissing the application for a declaration restraining the respondent from exercising any powers in relation to the inquiry … pending the determination of these proceedings.”

24. [56]

    It is true that the orders entered on 12 March 2015, following the judgment of Adams J, did expressly refuse a restraining order, but they also referred “this matter” to the Court of Appeal. From the issue of the summons on 10 March to the hearing on 11 March, to the entry of orders on 12 March and the application for leave to appeal on 13 March, the matter has proceeded with extraordinary speed, not to say undue haste. One might think that if solicitors or counsel had paused for a moment to consider what was being done, the futility of the exercise might have been appreciated. Unfortunately, that did not happen.

25. [57]

    Other things had happened in the meantime. On the day following the hearing before Adams J, counsel sought an adjournment of the stewards’ inquiry with respect to Mr McDowell. The adjournment was refused, but Mr McDowell did not attend. The stewards then proceeded with the inquiry and found him guilty in his absence. He was disqualified for four and a half years. The following day, similar steps were taken with respect to Mr Day. On 13 March, both were notified of the findings against them and on 13 March, both appealed to the Racing Appeals Tribunal. They sought a stay of the disqualification order pending determination of the appeal, an application refused by the Tribunal on 30 March 2015.

26. [58]

    By that stage it must have been apparent to all concerned that the proceedings which had been before Adams J, but which from 12 March 2015 were pending in this Court, lacked utility. However, that was not so. On 11 May 2015 the applicants (represented by three counsel, including senior counsel) filed a summary of argument in support of their application for leave to appeal from the judgment of Adams J.

27. [59]

    Although counsel did not seek to file submissions in support of the appeal, nor address orally at the hearing of the matters listed before this Court, the application for leave to appeal from the orders made by Adams J was not abandoned. Nevertheless, it is a patent futility and should be dismissed.

28. [60]

    With the addition of one further matter, the background circumstances, both procedural and factual, have been sufficiently outlined. The additional matter is the laying of charges against each of the applicants by the stewards for a contravention of r 187. That rule made it an offence to fail to attend an inquiry when directed to do so by the stewards. The failure of Mr McDowell on 12 March and Mr Day on 13 March to attend otherwise than by briefing counsel to appear on an adjournment application, was alleged to constitute a contravention of r 187. The applicants were given an opportunity to make submissions in relation to the charge, which each did on 16 March 2015. On 26 May 2015 the stewards found each guilty of a breach of r 187 and imposed an additional disqualification, of three years six months with respect to Mr McDowell and three years three months with respect to Mr Day. The disqualification decisions were made on 6 May 2015 and were the subject of appeals to the Tribunal filed on the same day.

Issues in this Court

1. [61]

   The issues for consideration fall into two categories, namely (a) those relating to the proper construction of r 190 and (b) those relating to the apprehension of bias on the part of Mr Sanders. However, there is a third issue as to whether relief by way of judicial review is available in this Court against a decision of the stewards, there being a full right of appeal to the Tribunal. The issues should be addressed in that order because the nature of the inquiry will be of immediate relevance to the question of apprehended bias. The answer to the third question will also depend on the statutory scheme.

(a) Introduction

1. [62]

   The matters relevant to the proposed defence were threefold. First, as noted above, the respondents contended that the construction issue was either a matter of res judicata or at least issue estoppel between the parties and should not be addressed by this Court. There are three reasons to reject that proposition. One is that a summons seeking to have the issue determined was referred to this Court by Adams J, a procedural order which has not been challenged by the respondents. A second reason is that, as all parties accepted for the purpose of addressing the allegation of bias, the latter issue could not properly be addressed without understanding the issues which were to be determined at the stewards’ inquiry. The third reason is that, to the extent that the issue was determined by Adamson J and not disturbed in the first appeal, that outcome was largely a function of the high degree of expedition granted to the proceedings (favourably to the applicants) and the manner in which the submissions were presented on the first appeal, which meant that, although raised by the notice of appeal, the issue was not determined. If necessary, it would no doubt be possible for the applicants to seek to reopen the first appeal in order to have the issue determined.

2. [63]

   For these reasons, the respondents’ objection to the issue being determined should be rejected.

3. [64]

   The second matter related to the substantive issue of construction; in this regard, both the relief sought by the applicants and the argument in this Court were afflicted by a devotion to labels. It is unhelpful to identify the issue as whether r 190 provided for “strict” or “absolute” liability, except in so far as those labels reject the possibility that the elements of the offence include intention, recklessness, negligence or a particular state of awareness on the part of the person charged with the offence.

4. [65]

   The distinction sought to be drawn was in fact between the availability of a defence of “honest and reasonable mistake of fact” and the absence of such a defence. That takes the matter a stage further, although it still involves the assumption of alternative approaches based on an imprecise characterisation. In dealing with that formulation on the first appeal, Leeming JA noted that submissions had been advanced in the abstract “without any precise articulation of what might be said to constitute the defence”. [21]

5. [66]

   The third matter said to arise related to a supposed consequence of the adoption by Adamson J of a construction involving absolute liability. If that were correct, the applicants submitted, the rule would be ultra vires the Harness Racing Act. How that could be is doubtful, because the construction of the rule should take into account the statutory basis for it.

(b) Construction of r 190

1. [67]

   Rule 190 is set out at [10] above. Its construction depends upon two separate steps. The first, being the general approach to the construction of any document, is to understand the meaning of the text in its context. The second is to identify whether there are extraneous influences, usually in the form of presumptions, which will affect the ordinary meaning of the language. The relevant presumption relied on in the present case is one which finds its home in the construction of statutes creating offences, namely that, “[i]f the purpose of the statute is to add a new crime to the general criminal law, it is natural to suppose that it is to be read subject to the general principles according to which that law is administered.” [22] The relevant principle, taken from the judgment of Dixon J in Proudman v Dayman, was that “an honest and reasonable belief in a state of facts which, if they existed, would make the defendant’s act innocent affords an excuse for doing what would otherwise be an offence.” [23]

2. [68]

   In Proudman v Dayman the offence was that of permitting a person to drive a car on a road when the driver did not hold a driver’s licence. The act of permitting a person to drive was undoubtedly required to be an intentional act; as explained by McTiernan J: [24]

3. [69]

   Returning to the circumstances posited by Dixon J, namely a statute adding a new crime or offence to the general criminal law, and the supposition as to the operation of general principles, his reasoning continued: [25]

4. [70]

   The present case does not involve the addition of a new offence to the general criminal law: it involves the creation by a regulatory body of an offence for breach of the rules governing the industry. While it is true that the available penalties include fines and deprivation of livelihood, the regulatory scheme bears a closer relationship to professional discipline than to the general criminal law. Indeed, it bears an even closer relationship to the law regulating sporting activities, although neither side took the court to that area of the law. [26] Disregarding analogous areas, the fact that the rule does not add a new offence to the criminal law further weaken any statutory presumption beyond the effect noted by Dixon J in Proudman v Dayman in relation public health and safety measures.

5. [71]

   In that circumstance, there is limited benefit to be found in discussing cases which involve the addition of a new offence, or new form of prohibition, to the general criminal law, including He Kaw Teh v The Queen [27] and CTM v The Queen, [28] to which the Court was referred. When considering the proper operation of a statutory provision which is silent as to the precise nature of the mental element required for an offence, it may be asked whether it would assist the purpose of the legislative scheme to put a person under strict liability or whether it can be said that, absent some conscious activity which may promote observance of the regulations, “there is no reason in penalizing him, and it cannot be inferred that the legislature imposed strict liability merely in order to find a luckless victim.” [29]

6. [72]

   In the present case that inquiry requires attention both to the rule-making power in the Harness Racing Act and the rule itself. So far as the statute is concerned, the rules were made, not by the Governor pursuant to the general regulation-making power (in s 48), but by Harness Racing NSW, pursuant to s 10, which relevantly provided:

7. [73]

   The relevant function was identified as that set out in s 22(1), which provided:

8. [74]

   There is no apparent reason to understand s 22(1) as precluding the creation of offences of “strict” or “absolute” liability. Nor is the conferral of power to adopt or incorporate rules promulgated by other bodies, [30] without limitation as to content, conducive to an implied limitation, the full scope of which was not identified in submissions.

9. [75]

   Turning to the rules, there are two circumstances which speak strongly, even decisively, against the proposition that a trainer will not be liable for a contravention of r 190 if he or she held an honest and reasonable belief that the horse had not consumed sufficient cobalt to result in an excess of the prescribed level in the horse’s urine. The first factor is the requirement of sub-r (4) that the offence is committed by a trainer “regardless of the circumstances in which the prohibited substance came to be present in or on the horse.” That language is inconsistent with the availability of a defence of reasonable precautions having been taken; if it would not be a defence to demonstrate the taking of reasonable precautions, it is difficult to understand how it could be a defence to believe that reasonable precautions had been taken.

10. [76]

    Secondly, the provision of two certificates certifying the presence of a prohibited substance in urine is stated to be “conclusive evidence of the presence of a prohibited substance” and conclusive evidence that “the horse was presented for a race not free of prohibited substances”, being the language of r 190(1). The evidentiary value of certificates is qualified by the terms of sub-r (7):

11. [77]

    The assumption underlying the scheme of r 191 is that two properly obtained certificates are sufficient in themselves to provide conclusive evidence of the offence, unless it can be shown that the method by which they were obtained was materially flawed, in which case they do not “establish an offence”. The express statement of such a proviso, with no reference to any other basis for justification or excuse, is powerful evidence that no other defence was intended: these two provisions taken together are decisive in their effect.

12. [78]

    There are further considerations which support this view. First, the form of r 190(1) and (2) is significant; by contrast, for example, with r 196A which says that “a person shall not administer or cause to be administered to a horse any prohibited substance …”, r 190 is expressed in mandatory but impersonal terms, namely “[a] horse shall be presented for a race free of prohibited substances”. Sub-rule (2) is premised on a single condition, namely that the horse is presented otherwise than in accordance with sub-r (1). In other words, the circumstance of the horse is expressed to be the objective precondition to the existence of an offence. As in Proudman v Dayman, there is an activity which may well involve some mental element, namely the act of presenting a horse for a race. Whether a trainer would be liable in circumstances where the horse was removed from its stable without the trainer’s knowledge or permission and presented for a race by a person who had no legal authority to take such a step, raises a different question from that which arises in the present case. It need not be considered further.

13. [79]

    The second consideration which supports the strictness of the regime is the nature of the licensing scheme. Pursuant to Pt 4 of the Rules, the “Controlling Body” (which in this case is Harness Racing NSW) has power to regulate by licence “any activity connected with the harness racing industry.” [31] Part 4 then provides that there be licensing for drivers, trainers, stable hands, stud masters and artificial breeding technicians. Without attempting to identify the range of obligations imposed on the trainer, it is sufficient to note that the trainer is responsible for ensuring that all persons carrying out activities of a stable hand are licenced as stable hands, [32] that the temporary transfer of a horse is approved in advance by the stewards, [33] that the horse is not moved from its approved location without prior approval of the stewards, [34] that a trainer shall adequately condition, prepare and supervise horses trained by that trainer, [35] and, with respect to therapeutic substances, shall maintain a log book recording details of all treatments administered to any horse in the trainer’s care. [36] It is clear that, as with any sport, and particularly sports using non-human animals, the public interest requires strict measures to identify unacceptable performance enhancing substances and to control or prevent their administration.

14. [80]

    The existence of such regulatory offences, even in the area of driving motor vehicles, is now far stricter than it was in the days of Proudman v Dayman and the evidentiary mechanisms available to a prosecutor, providing conclusive evidence of guilt, are also commonplace: see, for example, the discussion of the South Australian legislation with respect to a prescribed concentration of alcohol in the blood of a driver in Police v Dunstall. [37]

15. [81]

    The applicants called in aid a remark by Gleeson CJ in Strathfield Municipal Council v Elvy [38] that “it is not obvious to me that the public has an interest in punishing people for honest and reasonable mistakes of fact.” That proposition was transmogrified by Hunt CJ at CL in Griffin v Marsh [39] into the proposition that, “the public has no interest in punishing people for honest and reasonable mistakes of fact: Strathfield Municipal Council v Elvy. [40] ”

16. [82]

    These propositions do not assist the applicants. First, it is wrong in principle to extract such statements from their specific contexts and confer on them the status of pronouncements at a high level of generality. Both, it may be noted, were made in the Court of Criminal Appeal, in relation to criminal offences. Even more tellingly, the observation by Gleeson CJ in Elvy was directed to an offence (involving voting by a member of council who had a pecuniary interest in a proposal) which expressly provided a defence based on ignorance of the nature of the proposal. The statement was made in rejecting a submission that the statutory defence should be read down so as to prevent a defendant raising an honest and reasonable, but mistaken, belief as to the facts, in circumstances where there was some ambiguity as to the scope of the defence.

17. [83]

    Griffin v Marsh involved an offence against a taxation law, for failing to answer a question or produce a document. Hunt CJ at CL rejected out of hand the proposition that failing to answer a question could be subject to a defence of honest and reasonable mistake. The comment about the public interest related to the failure to produce documents. However, the conclusion ultimately reached was that such a defence was not open in relation to either limb of the offence.

18. [84]

    It follows that neither of these cases provided any support for the applicants’ position. One might add that courts should be cautious about identifying where the “public interest” lies in circumstances where there are undoubtedly conflicting interests and where the enforcement of a legitimate public interest may depend on contestable views about alternative measures. In the present case, there is a legitimate interest of every participant in harness racing (including the general public who bet on races) in a “level playing field” involving “clean” participants. As with all sports, there is a legitimate argument that these conditions can only be created by the imposition of absolute liability on the human participants.

19. [85]

    A proper reading of r 190(2) is that it imposes on a trainer an absolute responsibility for the horse presented for a race being free of prohibited substances with the result that, if the trainer presents a horse that does not satisfy that condition, he or she is guilty of an offence.

(c) validity of r 190

1. [86]

   In the event that r 190 was held to create an offence of “absolute liability”, to which the defence of honest and reasonable mistake of fact was not available, the applicants contended that the rule was invalid. That was because it did not conform to the requirements of the rule-making provision in the Harness Racing Act.

2. [87]

   The short answer to this contention is that the construction of the rule depends upon the power conferred by the Act. There being no implied constraint of the kind invoked by the applicants within the Harness Racing Act, so as to limit the operation of the rule, there is by parity of reasoning no such limitation which would render the rule, broadly construed, invalid.

3. [88]

   None of this is to say that the state of mind and the reasonableness of the applicants’ conduct is irrelevant, but merely that it is irrelevant to the question of liability. Rather, its relevance is limited to the question of penalty. How it might apply on penalty does not arise in the present case, if only because the applicants presented no evidence on the question of penalty.

Apprehension of bias

1. [89]

   There are reasons, in a case such as this, to give careful attention to the nature of the decision-making body and its functions, as the submissions for the applicants recognised. However, it is necessary first to identify the basis on which it was contended that Mr Sanders was the subject of a reasonable apprehension of bias. The factual elements were as follows:

2. [90]

   Other matters did not involve facts, but Mr Sanders’ view of the law, including, for example, whether there was available to the applicants a defence of honest and reasonable mistake. That issue has now been resolved and cannot form a relevant basis for the present application. Further, because the legal issues have been resolved in favour of the conclusion that the offences were made out by the provision of two certificates (the validity of which was not challenged), none of these issues could have affected the findings as to liability, even had a defence been raised before the stewards’ panel.

3. [91]

   There remains an issue as to whether the circumstances should be found to invalidate the decisions with respect to penalties. Assuming for present purposes that the facts identified were sufficient to give rise to a proper basis for not allowing Mr Sanders to determine questions of penalty, was the decision of the panel invalidated by his presence, in circumstances where neither applicant appeared before the panel or put any submission in relation to penalty? Even if those decisions were invalid, should the Court intervene in circumstances where the applicants have a right of appeal, before an independent statutory tribunal, that process having been initiated?

Legal principles – apprehended bias

1. [92]

   Before answering these questions, it is convenient to identify the relevant legal principles. The approach commonly adopted in this area of discourse is to identify the general approach which has been accepted with respect to judicial officers and apply such qualifications as may be thought to flow from the particular statutory scheme or the functions being exercised. However, as the High Court noted in the recent decision of Isbester v Knox City Council, [41] particular issues will arise where the apprehension is not based on pre-judgment, but on a conflict of interest. [42]

2. [93]

   Cases involving potential conflicts of interest include Ebner v Official Trustee in Bankruptcy [43] (involving interests of a judge in shares in a bank which had an interest in the outcome of the litigation), Stollery v The Greyhound Racing Control Board [44] (apparent attempt to bribe the manager of an association, who was present at a hearing of the charge which he had initiated), and Dickason v Edwards [45] (in which a member of a friendly society was accused of insulting an officer of the society who then sat as part of the committee to hear the charge). Isbester itself was a case involving a challenge to a decision of a council panel to order the destruction of the appellant’s dog where an officer who was an active participant in the panel decision had also been the prosecutor in proceedings against the owner in the magistrate’s court for a series of offences arising out of attacks by the dogs. [46] The council officer was seen to be in a similar position to the interested officials in Stollery and Dickason. In each case the High Court held that the officer should not have participated in the decision-making process, or been present during deliberations leading to the decision.

3. [94]

   The joint reasons in Isbester adopted the following principle from Ebner: [47]

4. [95]

   Gageler J adopted a similar approach stating: [50]

5. [96]

   After noting that the test might be differently expressed in order to accommodate decision-making processes over several stages or involving several participants, Gageler J returned to the standard formulation, noting that “the test for the appearance of disqualifying bias in an administrative context is to be understood to mirror the test for apprehended bias in the curial context in two important respects.” He continued:

Application of principles

1. [97]

   An essential element in each of these statements is, as appears in the joint reasons, “the articulation of the logical connection between [the interest of the decision-maker] and the feared deviation from the course of deciding the case on its merits.” [56] Two factors are significant in that respect. First, each of the examples presented by the cases discussed above involved an evaluative judgment on the part of the decision-maker. Secondly, although in two cases the person disqualified had a direct interest in the outcome (being the recipient of a possible bribe, or the object of the insulting conduct) in Isbester itself the only involvement of the disqualified person was in a professional capacity as the person preparing the prosecution brief in respect of the offences. (Nor was she the actual decision-maker with respect to the destruction of the dogs.)

2. [98]

   In the present case, once it has been accepted that proof of liability depended purely upon the two certificates, together with the absence of any defence based on mistake or lack of awareness of established facts, it is not reasonable to identify an apprehension of bias with respect to the finding that the charges were proven. There was no logical connection between Mr Sanders’ prior activities set out above and the relevant decisions.

3. [99]

   With respect to the question of penalty, a different question arises. On the one hand, because the applicants did not seek to present any case in mitigation of penalty, there was, again, no relevant fact finding exercise to be undertaken. On the other hand, it could be said that the actual penalty imposed involved an evaluative judgment in two respects. One was the unwillingness to accept the possibility of any penalty other than disqualification; the second concerned the period of disqualification.

4. [100]

   Addressing the interlocutory order first, the panel, in refusing to disqualify the Chairman (which was dealt with by the full panel), stated:

5. [101]

   This reasoning is persuasive: it is consistent with the approach adopted by the High Court to interlocutory applications in Michael Wilson & Partners Ltd v Nicholls. [57]

6. [102]

   So far as the second issue was concerned, the material before the Court on the judicial review application did not establish clearly whether there was a significant evaluative judgment to be made. As appears from the foregoing extract from the stewards’ reasons on the recusal application, it seems to have been assumed that cobalt was a “category 1 substance”. The applicants submitted that the assumption itself involved an element of pre-judgment. The reasons continued:

7. [103]

   No doubt there was room to depart from a guideline in the present case (as in fact occurred, the penalties being lower than the guideline for a first offence) however, the applicants did not present any evidence or submissions supporting a penalty lower than that imposed, with the consequence that the element of evaluation was not significant.

8. [104]

   If the foregoing reasoning is sound, the applicants have failed to make out a case for judicial intervention in respect of the penalty hearing. (No separate argument was addressed to the penalties for failure to attend.) Against the possibility that the reasoning is unsound, it is appropriate to consider what steps should have been taken.

9. [105]

   In Isbester, Gageler J referred to a multi-stage decision-making process as arguably requiring a different form of test: [58]

10. [106]

    A similar approach was adopted in Twist v Randwick Municipal Council. [61] Like Isbester, Twist involved a local council decision, indeed of a significantly more serious kind, involving the demolition of the appellant’s home. The demolition order was made without affording him a prior hearing, but his attempt to gain relief was rejected on the basis that he had a statutory right of appeal to a District Court judge, which he had failed to exercise within time. The precise basis of the reasoning in Twist, which varied between different members of the Court, need not be explored. [62] In The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation, [63] Mason J (with the agreement of Murphy, Aickin and Wilson JJ) stated: [64]

11. [107]

    The fifth member of the Court in Marks, Brennan J, found that there was no denial of natural justice before the Presidential Member of the Australian Conciliation and Arbitration Commission and hence it was not necessary to consider, “whether and in what circumstances a hearing before and an order of confirmation made by the Full Bench might cure a denial of natural justice in proceedings before a Presidential Member, and to consider whether an order of confirmation supersedes an order made by a Presidential Member”. [65]

12. [108]

    Aronson and Groves note that this Court, in Hill v Green [66] considered a different analysis was available. After identifying the reasoning in these cases, Fitzgerald JA stated: [67]

13. [109]

    After referring to further authorities, some, but not all of which, post-dated Marks, Fitzgerald JA then said: [68]

14. [110]

    It is appropriate to apply that reasoning in this statutory context. The reason why the statutory scheme may be seen to provide an exclusive remedy derives in part from the Harness Racing Act and the functions conferred on stewards; secondly, practical considerations arising from the exercise by stewards of their functions in regulating harness racing and, thirdly, the provision for appeals under the Racing Appeals Tribunal Act.

15. [111]

    With respect to the Harness Racing Act, the functions conferred on Harness Racing NSW, pursuant to Pt 3, Div 1 of the Harness Racing Act, engage broad controls over the industry. The provision in s 22 for rule-making includes rules “conferring on stewards … the same functions as are exercisable by [Harness Racing NSW] under Division 1”. [69] Those powers, identified in rules discussed above, impose on stewards a wide variety of functions, including expansive controls over owners, trainers and drivers, for disciplinary and occupational health and safety purposes. Thus stewards are given control of the day-to-day regulation of harness racing, including the enforcement of rules relating to prohibited substances and disciplinary procedures where contraventions are identified. This scheme is not only inconsistent with a clear division between investigative functions and the exercise of powers to impose penalties for breach, but also envisages speedy determination of any identified breaches.

16. [112]

    Thirdly, s 15B of the Tribunal Act expressly identifies a right of appeal against a decision of a steward. That right is restricted by the Racing Appeals Tribunal Regulation 2010 (NSW), relevantly, to the suspension of a licence granted under the rules, but not so as to exclude these cases. Section 16 of the Tribunal Act states:

17. [113]

    The Tribunal is constituted by a “qualified person” appointed by the Minister, upon the recommendation of the Attorney-General. [70] The term “qualified person” means “a judge of any court in New South Wales, a retired judge of any court … or a person qualified to be appointed as a judge of the District Court.” [71] The Tribunal is entitled to seek expert advice from any person having special knowledge of and experience in the racing industry. [72] In short, these provisions ensure an appeal as of right on fact, law and discretion, by way of a new hearing, to an independent tribunal constituted by a qualified lawyer with the appropriate standing in the legal profession and at least qualified for appointment as a judge.

18. [114]

    As hinted at by Brennan J in Marks, in the passage cited above, where the Tribunal conducting a fresh hearing makes a decision, it will supersede the decision of the stewards, in accordance with the reasoning in Wishart v Fraser. [73] Where the right of appeal has been invoked, it is not appropriate for the applicants to seek to challenge the original decision in this Court, whilst maintaining an entitlement to have it set aside and replaced by a decision of the Tribunal. Thus, assuming there is a right of judicial review of the decisions of the stewards, the case is at least a proper one, and arguably a necessary one, in which to refuse relief.

Conclusion

1. [115]

   Given the nature of the issues involved, and in particular the practical value in dealing with the points of statutory construction and the validity of the rule, it is appropriate to grant leave to appeal. Nevertheless, the appeal must be dismissed and the applicants, having lost on all material issues, must pay the respondents’ costs in this Court.

2. [116]

   The Court should make the following orders:

3. [117]

   LEEMING JA: I agree with the orders proposed by Basten JA and, subject to what follows, with his Honour’s reasons. The following supplementary reasons are addressed to (a) the respondents’ reliance on res judicata, issue estoppel and abuse of process, (b) the construction of r 190, and (c) the appellants’ complaint of apprehended bias.

Res judicata, issue estoppel and abuse of process

1. [118]

   The primary judge heard argument (twice) as to whether r 190 accommodated a defence of honest and reasonable mistake, and concluded that it did not. That occurred in two distinct contexts. First, in late 2014, her Honour was required to determine whether the power to suspend Messrs Day and McDowell pending the inquiry by the stewards attracted an obligation to give them an opportunity to be heard. [74] Messrs Day and McDowell submitted that three matters tended to confirm that the power did attract such an obligation, the first of which was that an offence under r 190 was not one of absolute liability. [75] The respondents contended that there was no such obligation for four reasons, the first of which was that the offence under r 190 was one of absolute liability. [76] Her Honour concluded that there was no obligation to give Messrs Day and McDowell an opportunity to be heard before exercising the power to suspend pending a steward’s inquiry. In reaching that conclusion, her Honour held that a defence of reasonable mistake of fact was not available to the offence created by r 190. [77]

2. [119]

   An appeal was expedited and heard the following month. [78] Her Honour’s conclusion that procedural fairness did not require that the plaintiffs be given an opportunity to be heard before exercising the power was overturned, the appeal was allowed and her Honour’s orders set aside. One ground of the appeal was the question of construction of r 190. Basten JA has reproduced what was said at [130]-[131] as to why the construction of the rule was not definitively resolved.

3. [120]

   The second occasion on which the construction of r 190 arose was in the 2015 proceeding. [79] It was determined by her Honour in the same way.

4. [121]

   The respondents contended that Messrs Day and McDowell could not argue the point in this Court, either because of a res judicata (notwithstanding that the primary judge’s first judgment had been set aside and the second one was subject to appeal) or issue estoppel (notwithstanding that the point was expressly left open by this Court) or an abuse of process.

5. [122]

   It is sufficient to state that I cannot see any reason preventing these parties obtaining, for the first time, an appellate decision on the construction of the rule. In order to support the respondents’ contrary contention, some submissions were made that this Court’s judgment in Forge v Australian Securities & Investments Commission [No 2] [80] was expressed too broadly when it stated that the orders of an appellate court were “now the source of any res judicata estoppels”. [81] Given the circumstances in which the issue came to be formulated, (principally in oral submissions when the appeal was heard, which fell short of a submission that Forge was clearly wrong), and considering that there have been full submissions on the question of construction, the better course is to deal with the question on its merits.

The construction of AHRR 190

1. [123]

   Rule 190 is in the following terms:

2. [124]

   Unlike r 188A, which was made by non-lawyers in circumstances described by this Court in 88 NSWLR 594 at [26]-[30], and which as originally made contained an obvious error, r 190 is a national rule and appears to have been drafted with care.

3. [125]

   Reliance was placed upon the mandatory language (“shall be presented”) in sub-rule (1) and its passive voice. Reliance was also placed upon the deeming provisions in sub-rules (2) and (3). Those matters alone would not suffice to exclude a defence of honest and reasonable mistake of fact. As was pointed out, there are decisions in which equivalently mandatory language has been construed so as to reserve the defence: see for example, Hawthorne v Morcam Pty Ltd. [82] Little turns upon the passive voice. Here, sub-rule (1) identifies an event, namely, the presentation of a horse for a race, and then sub-rules (2) and (3) attach liability to one or two persons if the circumstances in those sub-rules arise.

4. [126]

   It is sub-rule (4) which is directly addressed to the present question, namely, whether there is some mental element to the offence created by sub-rules (2) and (3). The words “regardless of the circumstances in which the prohibited substance came to be present” are squarely directed to excluding what would ordinarily be regarded as exculpatory circumstances (including lack of knowledge or a defence of honest and reasonable mistake of fact). It is, indeed, difficult to give the words of sub-rule (4) any meaning falling short of unequivocally excluding such a defence. The submission was made that the words exclude reliance upon conduct (for example, whether reasonable precautions have been taken), but fall short of excluding a mental element of the defence. I do not agree. There is no sharp distinction between conduct and belief; the latter is ordinarily based upon the former, and once it be accepted that an offence is committed regardless of whether the conduct was exculpatory, it is difficult to see how an offence would not be committed because the trainer had a belief that his or her conduct was exculpatory. Ordinarily the basis for an honest and reasonable mistake of fact is conduct that, considered objectively, supports a belief that no offence was committed.

5. [127]

   Other considerations support such a construction of r 190. One is the fact, prominent in the respondents’ submissions, that there was a discretion in r 256(6) not to enter a conviction even though an offence has been found to be proven, or alternatively, not to impose a penalty (I return to this below, for a different purpose). Another is that this construction accords with the decision of an enlarged Full Court of the Supreme Court of Western Australia in Harper v Racing Penalties Appeal Tribunal of Australia [83] on a rule with similar language and similar purpose. A third is that in r 191(7), provision is made expressly to detract from the otherwise conclusive effect of an evidentiary certificate.

6. [128]

   For those reasons, which substantially accord with those given by Basten JA, I agree that there is no “defence” of honest and reasonable mistake of fact to a charge of contravening r 190.

Apprehension of bias

1. [129]

   A reasonable person would consider that Mr Sanders formed the view in advance of the hearing that the discretion in r 256(6) would not be exercised to avoid disqualification. His letter of 15 December 2014 recorded a determination by him of a “high unlikelihood that Rule 256 will have any application if a prohibited substance offence is proven”, while the reasons of the panel of 12 January 2015 (reproduced by Basten JA at [100]) are expressed in even stronger language. Yet if it were established that Messrs Day or McDowell had indeed followed advice from Harness Racing NSW, then there would be at least an arguable case for a favourable exercise of discretion, bearing in mind too that this was a first offence, contrary to a rule which had only recently been created.

2. [130]

   However, given both men’s failure to attend the hearings, the occasion for the exercise of discretion never arose. I agree with Basten JA that where, as here, the appellants have invoked their right of appeal, it is not appropriate to maintain a challenge to the initial decision, including on the grounds of apprehended bias, and it is unnecessary to say anything more as to whether such a challenge would be made out if appropriately raised.

3. [131]

   SIMPSON JA: I agree with the orders proposed by Basten JA, and with his Honour's reasons. I also agree with the additional remarks of Leeming JA.