Goadsby v Harness Racing New South Wales

1. [1]

   This judgment concerns an application for judicial review of a decision of the New South Wales harness racing regulatory body against a horse trainer.

2. [2]

   The plaintiff is Aaron Goadsby, he is represented by D P Sheales of counsel. The first defendant is Harness Racing New South Wales (Harness Racing NSW), it is represented by K Richardson SC and S Jeliba of counsel. The second defendant is the Harness Racing New South Wales Appeal Panel (the Appeal Panel), an internal appeal panel of Harness Racing NSW, it was not an active participant in these proceedings.

3. [3]

   On 17 December 2024, the Appeal Panel made a submitting appearance. The proceedings have been conducted on the basis that Harness Racing NSW made submissions for both itself and the Appeal Panel.

Statutory framework

1. [4]

   Harness racing is a form of horse racing in which the horse pulls a two-wheeled cart called a ‘sulky’ or ‘bike’, carrying a driver rather than a jockey on the horse’s back.

2. [5]

   In New South Wales, harness racing is governed by the Harness Racing Act 2009 (NSW) (the Act). All reference to legislation is in reference to this Act unless otherwise stated. Harness Racing NSW is constituted as a body corporate under s 4. It is the key body charged with the administration of the law as established by the Act. It is independent of the government: it ‘does not represent the Crown and is not subject to direction or control by or on behalf of the Government’: s 5. As set out in s 9(2), some of Harness Racing NSW’s chief functions are:

3. [6]

   Harness Racing NSW has ‘power to do all things that may be necessary or convenient to be done for or in connection with the exercise of its functions’: s 10(1). In particular, under s 10(2), it may:

4. [7]

   The Governor has the power to make regulations under the Act: s 48. However, no regulations seem to have been made. Subsidiarily, Harness Racing NSW has the power to make rules for or with respect to the control and regulation of harness racing: s 22(1). A rule may be made by applying, adopting, or incorporating any publication in force at a particular time: s 23(2). In particular, under s 22(2), Harness Racing NSW may make rules for or with respect to:

5. [8]

   The parties agree that the applicable rules include both the Australian Harness Racing Rules (the Australian Rules) and the Harness Racing New South Wales Local Rules (the NSW Local Rules). Section 48(4) provides that ‘[a] regulation may create an offence punishable by a penalty not exceeding 5 penalty units’; no analogous provision exists with respect to the rules.

6. [9]

   Rules 1-1A of the NSW Local Rules provide:

7. [10]

   The disciplinary capacity of Harness Racing NSW is delineated by s 21. It reads:

8. [11]

   Under the Australian Rules, Harness Racing NSW may appoint ‘Stewards’: r 14. Rules 15-18 set out some significant powers held by the stewards. Under r 15, some include:

9. [12]

   In Trainor v Harness Racing New South Wales [2023] NSWSC 1278 (Trainor), having reviewed the same provisions as above, Nixon J stated at [35]:

10. [13]

    The Harness Racing NSW Appeal Panel is constituted under pt 5A of the Act. Section 34B sets out when an appeal may be made:

11. [14]

    A racing authority includes ‘a racing official’: s 34A. A ‘racing official’ includes a steward appointed by Harness Racing NSW: s 3(1).

12. [15]

    Section 34C sets out the procedure to be followed by the Appeals Panel. Significantly, the proceedings are ‘to be conducted as a new hearing’: s 34C(1). As appears from the section, the appeals panel is more in the nature of an inquisitorial administrative body, rather than a judicial body. It reads:

13. [16]

    Section 34D sets out the decisions available to the Appeals Panel. It reads:

14. [17]

    An aggrieved person may further appeal to the Tribunal (the Racing Tribunal) established under the Racing Appeals Tribunal Act 1983 (NSW) (Racing Appeals Tribunal Act). Section 15B of the Racing Appeals Tribunal Act provides:

15. [18]

    As with the appeal to the Appeal Panel, an appeal to the Racing Tribunal is conducted afresh:

16. [19]

    Under NSW Local Rules r 181, a person aggrieved may not go to the Racing Tribunal before first going to the Appeal Panel.

Background

1. [20]

   The plaintiff has been involved with the harness racing industry for about 25 years. On 25 November 2016, the plaintiff was issued a Grade A trainer’s licence. A holder of a Grade A trainer’s licence is licensed to train any horse: Australian Rules r 90A(2.7)(c).

2. [21]

   On 6 December 2023, the plaintiff plead guilty to a charge brought by the stewards under r 190 of the Australian Rules which reads as follows:

3. [22]

   That charge against the plaintiff arose out of the stable contamination of a horse that he presented to race. The horse was subsequently found to have trace amounts of a legitimate veterinary medicine which he had administered to other horses. The penalties which the stewards may impose are set out in r 256 of the Australian Rules:

4. [23]

   ‘Suspension’ in relation to a licensed person means the temporary or permanent withdrawal of all rights provided by any licence issued by a controlling body: Australian Rules Dictionary. ‘Warned off’ or ‘warning off’ means a decision or penalty prohibiting a person from entering any racecourse or place under the control of a club or the controlling body and a person warned off is subject to the same prohibitions as a disqualified person as described in r 259: Australian Rules Dictionary. Rule 259 of the Australian Rules provides as follows:

5. [24]

   The stewards convicted the plaintiff of the breach of r 190 of the Australian Rules and imposed a period of disqualification on him of three months, commencing 6 December 2023 and expiring 6 March 2024.

6. [25]

   On 7 December 2023, the plaintiff filed a notice of appeal with the Appeal Panel seeking to appeal the stewards’ decision on penalty.

7. [26]

   On 17 January 2024, 30 January 2024, and 1 February 2024, in the course of interlocutory steps relating to that appeal between the plaintiff and Harness Racing NSW, Harness Racing NSW’s stewards directed the plaintiff, on those three separate dates, to produce, among other things, the mobile telephones used by him during the period of disqualification as set out above (6 December 2023 to 6 March 2024). The direction of 17 January 2024 directed the plaintiff to produce ‘any mobile phone(s) used by [the plaintiff] during the Disqualification period.’

8. [27]

   The power of the stewards to issue directions is found in r 15(1)(a) of the Australian (reproduced above). Failure to comply with a direction is an offence under r 187:

9. [28]

   The stewards’ power to conduct an ‘inquiry’ is found in r 181 of the Australian Rules which provides as follows:

10. [29]

    On 6 February 2024 the stewards commenced an inquiry into each of the three directions given to the plaintiff. The stewards charged the plaintiff with three separate breaches of r 187(3) reproduced just above, one in relation to each direction. The breach consisted in not surrendering the phones used during the disqualification period. Although irrelevant to these proceedings, the plaintiff seems to have resisted production on the basis that the phones contained confidential and privileged information which the plaintiff was adamant not to divulge.

11. [30]

    On 5 March 2024, the stewards found the plaintiff guilty of charge one. Charges two and three were withdrawn.

12. [31]

    On 26 June 2024, the stewards handed down their penalty decision relating to the ‘conviction’ for charge one. The penalty was:

    1. (1)

       “(1) [The plaintiff] is warned off until such time as he produces the Mobile Phones in compliance with a direction of HRNSW Stewards issues on 17 January 2024;

    2. (2)

       (2) Following production of the Mobile Phones in compliance with a direction of HRNSW issues on 17 January 2024, [the plaintiff] is disqualified for a period of 12 months.”

13. [32]

    On the same day, 26 June 2024, the plaintiff appealed to the Appeal Panel under s 34B(1)(a) of the Act. The appeal was advanced on three grounds, namely that:

    1. (1)

       The plaintiff was not guilty of the offence;

    2. (2)

       The decision was not the correct or preferable decision; and

    3. (3)

       In the alternative, the penalty was too severe.

14. [33]

    Before the Appeal Panel, the plaintiff advanced two main points on penalty:

    1. (1)

       The penalty imposed by the stewards/ Harness Racing NSW was ultra vires as the Australian Rules did not permit a penalty of warning off being imposed conditionally (that is, linked to the production of the phones); and

    2. (2)

       The stewards had misdirected themselves as to the objective seriousness of the offending—the previous penalties by reference to which they fashioned their penalty were in relation to systematic corruption of races, from which the plaintiff’s offending was clearly distinguishable.

15. [34]

    Harness Racing NSW submitted that the original penalty should be confirmed.

16. [35]

    On 22 October 2024, the Appeal Panel handed down its decision. It concluded:

17. [36]

    At the time of the hearing before this Court, the plaintiff had still not produced the phones subject to the directions. That is the common ground between the parties.

The summons

1. [37]

   On 9 May 2025, leave was granted to the plaintiff to file a further amended summons (the amended summons) (T7 [32]-[33]). By way of the amended summons, the plaintiff sought:

   1. (1)

      An order under s 69 of the Supreme Court Act 1970 (NSW) in the nature of certiorari quashing the decision of the Appeal Panel handed down on 22 October 2024;

   2. (2)

      An order that the decision be remitted to the Appeal Panel to be reheard by a differently constituted panel and determined according to law; and

   3. (3)

      An order that Harness Racing NSW pay the plaintiff’s costs.

2. [38]

   The plaintiff set out the following grounds in support of the relief sought:

3. [39]

   A third ground based on the Wednesbury unreasonableness (after the case of Associated Provincial Picture House v Wednesbury [1948] 1 KB 223) of the Appeal Panel’s decision as to penalty is no longer pressed (T6 [39]-[44]).

Response to the summons

1. [40]

   In its response, Harness Racing NSW stated that the Appeal Panel did not deny the plaintiff procedural fairness, that it did not act beyond its jurisdiction and that, as a matter of discretion, that the Court ought to deny the plaintiff relief because the plaintiff did not exercise his statutory right of appeal to the Racing Tribunal s 15B of the Racing Appeals Tribunal Act.

2. [41]

   In particular, Harness Racing NSW submitted that the penalty imposed by the Appeal Panel could not properly be characterised as an increase. It submitted that the hearing before the Appeal Panel was de novo and that both liability and penalty fell to be reconsidered, and the appropriate penalty was a live issue expressly addressed by the parties before the Appeal Panel.

3. [42]

   The two grounds set out by the plaintiff raise substantially the same matters and it will be convenient to treat them together in the following pages.

Judicial review grounds one and two: was the plaintiff denied natural justice?

1. [43]

   The plaintiff seeks that the decision of the Appeal Panel be quashed on the basis that it was vitiated by a denial of natural justice. It is said to be constituted by the failure of the Appeal Panel, in departure from its usual practice, to signal to the plaintiff that it was considering an ‘increase’ in penalty. That failure is said to have deprived the plaintiff of the opportunity to withdraw its appeal and accept the penalty imposed by Harness Racing NSW and to have deprived the plaintiff of the opportunity to make submissions on an appropriate penalty. Harness Racing NSW contests the proposition that the penalty imposed by the Appeal Panel can be properly characterised as an increase.

2. [44]

   It is necessary to say at this early stage that it will not be decided whether the five-year warning-off period, in relation to the former one-year warning-off beginning at compliance with the order, can, or cannot, be properly characterised as an ‘increase’ in penalty. Neither the defendant nor the plaintiff put authority before this Court supporting the proposition either way. Duration is not the only factor defining the severity of a penalty. Which of the two penalties here is the more severe depends on the subject of the penalty, it is therefore highly subjective and not amenable to objective determination.

3. [45]

   It is unnecessary to decide this issue. The rules of natural justice exist to ensure persons a fair hearing in the determination of issues which might affect their interests. It is sufficient to engage those rules, in this instance, that the penalty imposed by the Appeal Panel was significantly different in nature to the penalty imposed by Harness Racing NSW, thereby differently affecting the plaintiff’s interests.

4. [46]

   The plaintiff relied upon the well-known decision Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 (Parker). In Parker the NSWCA held that a failure of a judge of the District Court of New South Wales, in the course of an appeal, to disclose that they were contemplating imposing a custodial sentence in lieu of a non-custodial sentence, in the circumstances, amounted to a denial of procedural fairness warranting the issue of a writ of certiorari quashing that trial judge’s decision. The key passage can be found at 295-297 per Kirby P (with whom Handley and Sheller JJA agreed, stated at 295-297).

5. [47]

   The plaintiff submitted that, in appropriate cases, it is not a matter of controversy that the Appeal Panel and the Racing Tribunal (to which an appeal was not made) are obliged to give a ‘Parker warning’. The plaintiff referred to NSW Thoroughbred Racing Board v Waterhouse (2003) 56 NSWLR 691; [2003] NSWCA 55 (Thoroughbred Racing), Ings v Racing New South Wales [2022] NSWSC 1127 (Ings) and Vasili v Racing New South Wales [2018] NSWSC 451 (Vasili) to support that proposition. I will deal with these cases below. It is also submitted that it has been the practice of the Appeal Panel to give Parker warnings in appropriate cases. It cites several decisions of the Appeal Panel to support this proposition.

6. [48]

   The plaintiff submitted that, in this instance, it is of some importance that the person whose decision was on appeal was also the respondent to the appeal. It urged that this heightens the standard of natural justice demanded:

7. [49]

   The plaintiff submitted that Harness Racing NSW did not ‘squarely raise’ that the Appeal Panel ought to impose a ‘greater’ penalty. The plaintiff conceded that there may be no obligation to give a Parker warning where the appellant is ‘sufficiently on notice that an increased penalty is a real possibility’: Thoroughbred Racing at [111] per Hodgson JA (Handley and Sandow JJA agreeing). However, the plaintiff that the he was not sufficiently on notice.

8. [50]

   In short, Harness Racing NSW first submitted that the plaintiff’s appeal to the Appeal Panel was requesting precisely, among other things, that the Appeal Panel review the penalty imposed by Harness Racing NSW. In these circumstances, it is untenable to say that the plaintiff was not sufficiently on notice as to the possibility that there would be an ‘increase’ in the penalty. Secondly, it submitted that, in fact, the plaintiff made substantial submissions on the penalty before the Appeal Panel, and therefore, was afforded natural justice.

9. [51]

   Where, as here, the power to decide derives from a statutory source, the content of procedural fairness is determined by statutory construction. In Kioa v West (1985) 159 CLR 550 at 612-613:

10. [52]

    Earlier in that same judgment at 587, Mason J stated:

11. [53]

    The nature of proceedings before the Appeal Panel is primarily set out in s 34C (earlier reproduced). An appeal to the Appeal Panel is conducted as a new hearing: s 34C(1); fresh evidence may be given: s 34C(2). The Appeal Panel, may, subject to the Act, decide its own procedure: s 34C(3). It is not required to act formally nor to follow legal precedent nor to follow the rules of evidence: s 34C(4). It is to sit as an open court but may sit in private it if it considers it necessary to do so for the public interest or to protect someone’s safety: s 34C(5).

12. [54]

    Generally speaking, the standard of procedural fairness demanded of a court, as in Parker, is higher than that demanded of many administrative bodies. As a matter of construction, the capacity for the Appeal Panel to ‘decide its own procedure’ (s 34C(3)) does not empower it to exclude procedural fairness. The requirement to offer parties before it procedural fairness is implied as a constraint on the Appeal Panel’s statutory powers. Its nature is qualified by the provision that it is not required to act formally (s 34C(4)). Nothing to the contrary was argued before me.

13. [55]

    As stated, the rules of natural justice are directed towards giving parties whose interests may be affected by a decision a fair hearing. In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Gleeson CJ stated at [37]:

14. [56]

    In Thoroughbred Racing the NSWCA considered the decision of the Racing Tribunal (constituted under the Racing Appeals Tribunal Act as it then stood) to increase, unprompted, the penalty on an appeal. The opponent before the Racing Tribunal in that matter had sought an increased penalty and the same was pressed orally, citing the need to deter the offending conduct.

15. [57]

    In Thoroughbred Racing, counsel for the offender, submitted that since Parker, a practice had developed of explicit warnings being given that an increase in penalty was under serious consideration and that this process was followed by the Racing Tribunal. The absence of such an explicit warning in this case meant that the offender was denied the opportunity to consider applying for leave to withdraw the appeal.

16. [58]

    Importantly, the NSWCA held in Thoroughbred Racing at [100] that as a matter of statutory construction, the hearing before the Racing Tribunal was not de novo but limited to the detection and correction of error. The effect of this judgment has been overcome by statutory amendment (see Racing Appeals Tribunal Act s 16). This consideration is crucial, because it is the basis on which the NSWCA set aside the Racing Tribunal’s new penalty. It was said that the increase in penalty was bad for want of jurisdiction, there having been no error identified below. At [106] Hodgson JA stated:

17. [59]

    The plaintiff relied on [111] of Thoroughbred Racing where Hodgson JA stated:

18. [60]

    As is readily apparent, that statement defeats, rather than proves, the proposition that it is adduced to support. That proposition was that ‘in appropriate cases before both the [Appeal Panel] and the [Racing] Tribunal a Parker warning must be given is not a matter of controversy’. The statement actually supports the proposition that a party to an administrative proceeding before a body such as the Appeal Panel, can be afforded procedural fairness where, although not ‘squarely raised’ with them by way of a Parker warning or something analogous, they are put sufficiently on notice by the general conduct and submissions of the parties and the administrative body.

19. [61]

    The next case cited by the plaintiff in support of the alleged requirement (not stated to be absolute) to give a Parker warning was Ings. Basten AJ set out the facts of that case at [1]-[4]

20. [62]

    The plaintiff drew attention to [83]-[87], [83]-[88] (citations omitted):

21. [63]

    Again, as with Thoroughbred Racing, Ings is authority for the proposition that a party before an administrative body such as the Appeal Panel may be afforded procedural fairness where, absent a Parker warning, by the submissions of the parties and the conduct of proceedings generally they are put sufficiently on notice that the question of penalty is at large and may increase.

22. [64]

    Finally, the plaintiff drew this Court’s attention to Vasili. In Vasili, two opposing appeals were held by the Racing Tribunal (to repeat, the tertiary administrative decision maker for various racing sports), the authority appealed against the leniency of the punishment given by the appeal panel below, whereas the offender appealed to the Racing Tribunal on the question of liability. There, Garling J, having considered Parker continued at [150]-[155], discussing the role of the Racing Tribunal and the de novo nature of appeals to it:

23. [65]

    In Vasili, Garling J gave the appellant relief where the Racing Tribunal had misconceived its jurisdiction and failed to afford the offender an opportunity to challenge the factual findings concerning liability but confined him to commenting on the severity of penalty.

24. [66]

    The decision in Vasili does not assist the plaintiff here except insofar as it is an example where this court has granted relief against an administrative appeal body such as the Appeal Panel where it improperly prevents a person from utilising its jurisdiction of considering the whole of the matter afresh or preventing a person from being heard on a decision that it will make.

25. [67]

    In the present proceeding, the plaintiff appealed to the Appeal Panel from the decision of Harness Racing NSW both on liability and the penalty imposed. The plaintiff took issue with the conditional nature of Harness Racing NSW’s penalty. The Appeal Panel was responsive and imposed an unconditional penalty.

26. [68]

    In written submissions before the Appeal Panel, the plaintiff submitted that Harness Racing NSW should have imposed a penalty at first instance which ‘finalised the charge’. Under the subheading ‘Penalty excessive’, the plaintiff submitted as follows:

27. [69]

    In its written submissions before the Appeal Panel, Harness Racing NSW submitted:

28. [70]

    Extracted below are some key exchanges which took place during the hearing before the Appeal Panel:

29. [71]

    The plaintiff appealed to the Appeal Panel both in order to challenge the finding on liability but also to challenge the penalty if liability was affirmed. From the submissions extracted above and excerpts of the transcript of the proceedings before the Appeal Panel that the parties joined issue on both the objective severity of the plaintiff’s contraventions and the appropriate penalty that ought to have been imposed. Harness Racing NSW all the way through maintained its emphasis on the severity of the plaintiff’s contraventions. On the contingency that the Appeal Panel agreed with the plaintiff’s contention that a conditional warning off was without the power of Harness Racing NSW or that it was inappropriate, Harness Racing NSW submitted, as reproduced above, that the plaintiff “should be both disqualified and warned off for a very significant period”.

30. [72]

    On penalty, the Appeal Panel stated the following it its written decision:

31. [73]

    As revealed by the details of the proceedings before the Appeal Panel extracted above, it is my view that the plaintiff and his legal representation were sufficiently on notice as to the possibility of a significant variation of penalty. It is of some significance that half of the plaintiff’s appeal to the Appeal Panel expressly requested a variation of penalty. The plaintiff’s main contention with the penalty imposed by Harness Racing NSW was that it was conditional in nature, and that for so long as the condition was unfulfilled, for that long would the plaintiff be excluded from the harness racing industry in New South Wales. It was urged that a fine would be appropriate. It cannot be plausibly suggested that the plaintiff, in appealing against the conditional 12-month warning off, did not sufficiently contemplate the possibility that, in it’s lieu, a longer unconditional warning-off would be imposed, the increase in length compensating for release of the condition.

32. [74]

    The decisions of this Court in Thoroughbred Racing and Ings make clear that in appeals to administrative bodies such as the Appeal Panel, in the context of the various racing industries in New South Wales, an express Parker warning, as may be rightly expected where the court exercises its criminal jurisdiction, is not required to afford a person procedural fairness where an increase in penalty is contemplated and imposed. The question is whether the person whose interests are at stake have been sufficiently put on notice as to such a possibility. The concern at all times is to ensure practical justice. The question of penalty was sufficiently discussed by the parties, the plaintiff was heard on the matter, and that is the very purpose of the hearing rule which was invoked by the appeal to procedural fairness. Harness Racing NSW maintained its emphasis on the severity of the plaintiff’s contravention and urged that if the penalty were to be varied, the plaintiff “should [instead] be both disqualified and warned off for a very significant period”.

33. [75]

    The plaintiff was put sufficiently on notice of Harness Racing NSW’s insistence on the severity of the contravention and that it urged in the alternative a relatively drastic variation of penalty. The plaintiff was free to withdraw his appeal and sit with the conditional penalty having heard Harness Racing NSW’s submissions. There has been no practical injustice.

34. [76]

    If I am wrong in this matter, I would have nonetheless dismissed the summons on a discretionary basis. The appellate scheme established by Parliament for persons aggrieved such as the plaintiff is extensive and contains three tiers in this instance. Here, the plaintiff omitted to go to the Racing Tribunal which had and still has jurisdiction to hear his matter afresh, before approaching this Court.

Result

1. [77]

   The plaintiff was afforded procedural fairness in his hearing before the Appeal Panel. The decision of the Appeal Panel handed down 22 October 2024 was within jurisdiction and lawful. Hence, the further amended summons taking effect 9 May 2025 is dismissed.

2. [78]

   As a result of the Court’s finding that the decision of the Appeal Panel was lawful, it is unnecessary to consider whether or not the ‘liability decision’ and the ‘penalty decision’ of the Appeal Panel constituted a single decision or not, although it is my view that they constituted a single decision.

Costs

1. [79]

   Costs are discretionary. The general rule is that costs follow the event: Uniform Civil Procedure Rules 2005 (NSW) r 42.1. There is no reason to depart from this rule. The plaintiff is to pay the first and second defendants’ costs.

   1. (1)

      The plaintiff’s further amended summons dated 8 May 2025 is dismissed.

   2. (2)

      The plaintiff is to pay the first and second defendants’ costs of these proceedings.