Goadsby v Harness Racing New South Wales

1. [1]

   On 6 December 2023, a Harness Racing New South Wales (HRNSW) stewards’ inquiry was held in relation to the results of analytical tests on a post-race urine sample taken at Newcastle Raceway on 26 May 2023 from the horse Luvareschs, trained by the plaintiff. Upon analysis of the sample by the Australian Racing Forensic Laboratory (ARFL), phenylbutazone (PBZ) and its metabolites, oxyphenbutazone (OPB) and gamma-hydroxyphenylbutazone, were detected as being present. These are all prohibited substances (the Prohibited Substances) under r 188A of the Australian Harness Racing Rules (the Rules), made by HRNSW, the first defendant, under s 22 of the Harness Racing Act 2009 (NSW).

2. [2]

   As he was then the holder of an A Grade trainer’s licence issued by HRNSW, the plaintiff was bound by those rules: rr 90(1), 90A, 299 of the Rules.

3. [3]

   During the stewards’ inquiry (conducted under rr 15, 181 of the Rules) the plaintiff was charged with an offence against rr 190(1)-(2), (4) of the Rules which provide:

4. [4]

   As held in Day v Sanders; Day v Harness Racing New South Wales (2015) 90 NSWLR 764; [2015] NSWCA 324 at [85] (Basten JA, Leeming and Simpson JJA agreeing), this is an absolute liability offence, such that “if the trainer presents a horse that does not satisfy that condition [being free of prohibited substances], he or she is guilty of an offence”. The plaintiff pleaded guilty to the offence charged being that:

5. [5]

   The stewards imposed a penalty of disqualification for three months, to commence immediately. That penalty was fully served by early 2024.

6. [6]

   The plaintiff appealed against the penalty to the NSW Harness Racing Appeal Panel. On 2 February 2024 this appeal was dismissed.

7. [7]

   The plaintiff then appealed to the Racing Appeals Tribunal of NSW (the Tribunal) constituted under s 5 of the Racing Appeals Tribunal Act 1983 (NSW) (the Tribunal Act). As was common ground, the role of the Tribunal was to determine the relevant penalty afresh having regard to the Rules and the evidence before it: s 17A(1) of the Tribunal Act.

8. [8]

   The appeal was heard on 12 August 2024. Before the Tribunal, the plaintiff did not dispute that the offence was made out. Taking a different position from that he took before the stewards’ inquiry, however, he contended that the presence of the Prohibited Substances came about because of contamination which occurred at the racecourse, not at his stables. He contended, on this basis, that his culpability was lowered such that it was properly reflected in the imposition of a fine only: Tribunal reasons for decision (TD) [13].

9. [9]

   In support of this contention the plaintiff relied upon two reports from each of Dr Major (dated 5 December 2023 and 3 May 2024), an equine veterinary surgeon, and Professor Tobin (dated 7 March 2024 and 10 May 2024), an equine veterinary pharmacologist. The reports of Dr Major assume particular significance in the proceedings before this Court. HRNSW relied upon a report from Mr Keledjian, the general manager of ARFL, who also gave oral evidence before the Tribunal, and a report from Dr Wainscott, a regulatory veterinarian employed by HRNSW. The evidence before the Tribunal also included the transcript of the hearing before the stewards, at which the plaintiff and Dr Wainscott gave evidence.

10. [10]

    The Tribunal dismissed the plaintiff’s appeal.

11. [11]

    By amended summons filed on 28 March 2025, the plaintiff seeks judicial review of the Tribunal’s decision. The plaintiff seeks an order that the Tribunal decision is quashed and that the matter is remitted to the Tribunal for fresh determination, and costs.

12. [12]

    The second defendant, the Tribunal, filed a submitting appearance.

13. [13]

    For the reasons set out below, the plaintiff’s application for judicial review is dismissed. It is thus unnecessary to consider the question of what, if any, utility there would have been in granting the relief sought by the plaintiff in circumstances where the period of disqualification imposed by way of penalty expired over a year ago.

Grounds of review

1. [14]

   The plaintiff pressed only two grounds of review (I have renumbered these for convenience noting that multiple grounds of review were deleted from the summons as originally filed and one further ground of review was not pressed):

2. [15]

   Whilst, as regards the two grounds of review, the summons is framed simply in terms of alleged “error”, the plaintiff’s counsel confirmed at the hearing before me that the plaintiff’s contention is that both grounds bespeak jurisdictional error.

Factual background

1. [16]

   Luvareschs’ race was at 9.32 pm on the night of 26 May 2023 but the plaintiff also had a horse running in an earlier race, at 6.37 pm, that night. Whilst no finding was made as to this, and nothing ultimately turns on it, the plaintiff contended that Luvareschs arrived at the Newcastle Raceway between 4.45 and 5 pm that night but there was no direct evidence of this. Luvareschs won the race, starting as the $1.12 favourite. The plaintiff did not have a bet in the race. The post-race urine sample was taken at 9.53 pm. Upon analysis the Prohibited Substances were detected as being present in the sample.

2. [17]

   PBZ is an anti-inflammatory substance widely used in equine medicine. The evidence before the Tribunal was that it acts on virtually every bodily system, but especially the musculoskeletal system, which brings it within the list of prohibited substances in r 188A(1)(a) of the Rules. As an anti-inflammatory, it also falls within the list of prohibited substances in r 188A(1)(b). As already set out, its metabolites are also prohibited substances under the Rules, r 188A(1)(c). Under the Rules, r 188B(3), it is provided that screening limits for certain therapeutic substances shall be promulgated by Harness Racing Australia. Under r 188B(2), as a minimum requirement, the initial screening test or screening analysis is to determine whether or not the prescribed substance exceeds the relevant screening limit. If so, the sample is to be further tested.

3. [18]

   The screening limit for PBZ is set at 100 ng/ml in urine.

4. [19]

   The concentration of PBZ identified in the ARFL analysis report was 308 ng/ml, well in excess of the screening limit. The concentration of OPB was reported at 76 ng/ml and gamma-hydroxyphenylbutazone was reported at 354 ng/ml. The analysis of OPB and gamma-hydroxyphenylbutazone was qualitative not quantitative and was used only to satisfy minimum requirements for identification: TD [39].

5. [20]

   Before the stewards’ inquiry, the plaintiff said that four other horses in his stables had been treated with PBZ between 6 and 7 am on 25 May 2023. The dose was 5 cc, which equates to a 1 mg dose. As to why Luvareschs returned the positive result, he said that cross-contamination was “the only thing it can be”. His evidence before that inquiry included that, in the normal stable environment, Luvareschs was located near the other horses treated with PBZ, that it was highly likely that the horses would have been in contact, that it was quite possible that cross-contamination could have occurred “due to the fact [of] where the horses were after they were treated”, that the horses shared the jogging machine, the walker, the wash bay and the cross-ties and that the horses treated with PBZ would have gone onto the jogger and walking machine after the treatment. The plaintiff told the stewards’ inquiry that the jogger, the wash bay, the cross-ties, the walker and the stable environment were all potential causes of contamination. He also said that it was “more than likely” that Luvareschs was tied up next to one of the other horses after they were treated with PBZ.

6. [21]

   Consistent with that evidence, the stewards found that the detection of the Prohibited Substances resulted from contamination within the plaintiff’s stable environment, most probably following the administration of PBZ to four horses other than Luvareschs.

7. [22]

   Taking a different position from that taken before the stewards’ inquiry, before the Tribunal the plaintiff contended that the contamination of Luvareschs with PBZ most likely occurred at the Newcastle Raceway.

8. [23]

   The Tribunal observed that, before the stewards’ inquiry:

9. [24]

   The plaintiff did not give evidence before the Tribunal or rely upon any factual evidence in support of his contention as to the timing and likely location of the event by which Luvareschs became exposed to PBZ. Rather, he relied solely upon the expert evidence of Dr Major and Professor Tobin, outlined above at [9], going to the timing of this. Neither Dr Major nor Professor Tobin was required for cross-examination. However, when asked whether she wished to cross-examine Dr Major or Professor Tobin, counsel for HRNSW said that she did not but “[w]e’ll make submissions as to the weight of their evidence.”

10. [25]

    For its part, HRNSW contended that the plaintiff had not proved that contamination occurred at the Newcastle Raceway. It relied upon the oral evidence of the plaintiff and of Dr Wainscott before the stewards’ inquiry and a report from Dr Wainscott dated 12 April 2024. HRNSW also relied upon a report from Mr Keledjian, and his oral evidence before the Tribunal.

The Tribunal decision

1. [26]

   Before the Tribunal, the plaintiff’s key contention was that the fact that the reported level of OPB was less than that of PBZ meant that the Tribunal should be satisfied that Luvareschs became exposed to PBZ at the Newcastle Raceway and not at the plaintiff’s stables. The Tribunal ultimately did not accept this contention.

2. [27]

   Correctly observing that the expert evidence assumed “considerable significance”, the Tribunal directed itself at TD [47] that:

3. [28]

   The plaintiff did not contend that this direction was in any way erroneous.

4. [29]

   For reasons that I will come to, the Tribunal placed “little weight” on the opinions of Professor Tobin and Dr Major: TD [48], and did not accept their evidence as to the likely time frames between Luvareschs becoming contaminated with PBZ and the testing having been carried out: TD [66]. Rather, the Tribunal accepted the opinion of Dr Wainscott that “the contamination is likely to have occurred within the 24 hour period prior to the collection of the sample, and that further refinement of the time is not possible”: TD [66]. On that basis the Tribunal found:

5. [30]

   The reference to the “second category identified in McDonough” is to the second category of “prohibited substance cases” identified by the Victorian Racing Appeals Tribunal in McDonough v Harness Racing Victoria [2008] VRAT 6 (“McDonough”), being where:

6. [31]

   By contrast, the plaintiff had contended that the Tribunal should find that he fell within the third category identified in McDonough, being where “the trainer (or other person being dealt with) may provide an explanation which the Tribunal accepts and which demonstrates that the trainer has no culpability at all”.

Ground one: procedural fairness

1. [32]

   As set out at [14] above, the plaintiff’s first ground of review alleges a denial of procedural fairness by the Tribunal in making the particularised observations or findings about the evidence of Dr Major in circumstances where Dr Major was not cross examined and (the plaintiff submits) HRNSW did not contend for most of those findings. In this regard, the plaintiff contends that he was “unaware that the Tribunal was contemplating making the adverse findings particularised”.

2. [33]

   Two preliminary observations are apt. First, the “underlying purpose of the requirements of notice or disclosure as aspects of procedural fairness” is “to provide an opportunity for meaningful participation by the potentially aggrieved person and to enable the person fairly to respond to adverse matters”: Stowers v Minister for Immigration and Border Protection (2018) 265 FCR 177; [2018] FCAFC 174 at [44] (Flick, Griffiths and Derrington JJ). A meaningful opportunity to be heard entails that a party must be given the opportunity “of ascertaining the relevant issues” in the case: Commissioner for ACT Revenue v Alphaone (1994) 49 FCR 576 at 590-591 (Northrop, Miles and French JJ). It does not follow that the detail, or specificity, of the reasoning process ultimately deployed by the Tribunal in resolving relevant issues, of which the parties were well aware, must be signposted during the course of the hearing.

3. [34]

   As Justice Doyle observed in Ausenco Operations Pty Ltd v Ferretti International Ottoway Pty Ltd [2020] SASC 46 at [61] (cited with approval by Kirk JA (Mitchelmore and Adamson JJA agreeing) in Demex Pty Ltd v McNab Building Services Pty Ltd (2023) 113 NSWLR 282; [2023] NSWCA 261 (“Demex”) at [33]), the requirements of procedural fairness may depend upon “the level of abstraction or specificity at which one articulates the issues in dispute”. As to this, Kirk JA held in Demex that “a reviewing court should view sceptically arguments involving high degrees of specificity”. Whilst that observation was made in a very different statutory context, it has resonance in the present case. The enquiry for the purpose of considering the plaintiff’s contentions as to procedural fairness is not whether the plaintiff had advance notice of the Tribunal’s precise criticisms of Dr Major’s evidence. Rather, the relevant question is whether the plaintiff was aware that a live issue before the Tribunal was the reliability of, and whether weight could be placed upon, the evidence of Dr Major. So to frame the issue recognises both the way in which the parties framed their contentions before the Tribunal and that the concern of the law is to “avoid practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] (Gleeson CJ).

4. [35]

   Second, procedural fairness does not require a decision-maker to disclose what he or she is minded to decide so that the parties may have a further opportunity of criticising his or her mental processes before a final decision is reached. Nor does it require a “running commentary” of what the decision-maker thinks about the evidence that is given: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [48], citing Lord Diplock in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369; recently applied in Azzi v State of New South Wales [2024] NSWCA 169 at [81] (Kirk JA, Ward P and Leeming JA agreeing).

5. [36]

   Having regard to these principles, a close examination of the way in which the proceedings were conducted before the Tribunal demonstrates that there was no procedural unfairness.

6. [37]

   The starting point is necessarily the evidence of Dr Wainscott before the stewards’ inquiry, as the transcript of that hearing was before the Tribunal. At that hearing, the stewards asked Dr Wainscott whether anything could be drawn from the levels of PBZ, OPB and gamma-hydroxyphenylbutazone as reported by the ARFL. In the context of responding to this question, Dr Wainscott said that “when you don’t know how much was given, you know, how much was ingested and at what time, it is a lot of guesswork”, and referred also to the “confounding variable”, namely:

7. [38]

   Dr Wainscott was then asked how long it would take to get a two gram dose of PBZ out of a horse’s system, and when responding to this question, Dr Wainscott referred to a study (which in context was clearly the study from the Australian Government, Rural Industries Research and Development Corporation, The Pharmacokinetics of Equine Medications, (January 2012) (the RIRDC study)) where 12 horses were given repeated doses of PBZ over a five day period starting off with two grams twice a day on the first day. Dr Wainscott identified that in that study it was not until 48 hours after the five days of treatment that the levels of PBZ got down to the level identified in the urine sample from Luvareschs (having earlier in his evidence said that this took “the best part of 48 hours”). As to the significance of this study, Dr Wainscott identified that different formulations of PBZ may have different effects, referred again to the confounding effect of the pH of urine and said that the “whole situation in summary, I guess, is cloudy”.

8. [39]

   Dr Wainscott was asked by the stewards whether anything could be drawn from the levels of OPB and gamma-hydroxyphenylbutazone. He responded “no”. He explained that urine pH can “affect the values quite markedly. And in varying amounts for each of those substances as well”.

9. [40]

   Later in the stewards’ inquiry, Mr Hammond, solicitor for the plaintiff, put the following question to Dr Wainscott:

10. [41]

    Dr Wainscott responded only to confirm that there was no question that Luvareschs was given a therapeutic dose by mistake. Notwithstanding that Dr Wainscott had not responded to all of the matters raised in the question, Mr Hammond did not take the question of the time frame of exposure further.

11. [42]

    A fair reading of Dr Wainscott’s position before the stewards’ inquiry is that no conclusions could be drawn from the level of OPB as reported and that the confounding effect of the (unknown) pH of the urine sample and the many variables meant that it was difficult to draw conclusions in this case from the RIRDC study. This starting point meant that the issues of whether any conclusions could be drawn from the OPB level as reported or from the RIRDC study were very much live before the Tribunal.

12. [43]

    On 12 February 2024, the plaintiff filed a notice of appeal to the Tribunal. In support, he relied upon the report of Dr Major of 5 December 2023 and the report of Professor Tobin of 7 March 2024.

13. [44]

    In his report of 5 December 2023, Dr Major referred to the RIRDC study. In this report Dr Major extracted a table of the mean urine and plasma levels of PBZ and OPB both during the five days of treatment (taken immediately before administering the next dose) and for 216 hours thereafter. The table showed that the 12 horses in the study were given two grams of PBZ twice on day one and then one gram twice daily for 4.5 days.

14. [45]

    I have extracted the table below, highlighted as it appears in Dr Major’s report:

15. [46]

    As is immediately apparent from the table, over the five days of treatment, testing was carried out only once per day. There was thus no testing of urine within 24 hours of the first administration of PBZ. By the time two hourly testing was carried out, there had been a full five days of treatment, at doses well in excess of anything to which Luvareschs might have been exposed to by way of contamination.

16. [47]

    Dr Major did not, however, confront this fundamental difficulty in his report. Rather, having extracted this table, Dr Major said:

17. [48]

    That is the sum total of Dr Major’s reasoning on the question of the likely timing of exposure.

18. [49]

    Dr Major also referred to a report by Fenger that indicated that horses can immediately trigger readily identifiable positive tests in post-race samples from urine contamination of their hay and bedding: C Fenger and T Tobin, “Medication Migration: The Charles Town Naproxen Experience and Why It Matters to All Racing Jurisdictions”, The Horsemen’s Journal. 64(3), p. 32, and a statement from Barker (with no citation) that “the major contaminants are nonsteroidal anti-inflammatory drugs, such as flunixin, phenylbutazone and naproxen, present in the soil in stalls, on stall surfaces”.

19. [50]

    Without any further reasoning or explication, Dr Major concluded that:

20. [51]

    This report was lacking in any explanation as to how Dr Major reasoned from the results in the RIRDC study to reach his conclusion as to timing. Given that the postulated circumstance of exposure to PBZ by Luvareschs was plainly a far cry from the five days of treatment detailed in the RIRDC study, and that the two hourly testing of urine in the RIRDC study did not begin until after that five days of treatment, this lacuna obviously affected the weight that could properly be given to Dr Major’s opinion. Put simply, on its face there was nothing in the RIRDC study that bore directly upon the circumstances before the Tribunal.

21. [52]

    In Professor Tobin’s report of 7 March 2024, he said that:

22. [53]

    Given the grounds of review, it is unnecessary to detail the basis of Professor Tobin’s opinion. The plaintiff does not contend that the Tribunal erred in not giving weight to Professor Tobin’s evidence.

23. [54]

    In written submissions of 15 March 2024, relying upon the reports of Dr Major and Professor Tobin, the plaintiff asked the Tribunal to find that the contamination occurred whilst Luvareschs was on course at Newcastle Raceway by direct oral contact (licking or eating) close to the time of the sample collection, most likely around three hours or closer.

24. [55]

    HRNSW relied before the Tribunal upon the report of 11 April 2024 from Dr Wainscott responding to the reports of Professor Tobin and Dr Major. Dr Wainscott observed that there was very limited literature available involving the study of urinary concentrations of PBZ and both of its metabolites. He identified that a paper by H Knych et al was the only paper of which he was aware that had reported urinary concentrations of all three substances, and that involved a single dose of two mg of PBZ to nine horses, with urinary samples taken after 24 hours, then at 48, 72 and 96 hours post treatment. At all measured times the concentration of the metabolites was greater than the concentration of the parent drug.

25. [56]

    As to the RIRDC study, he observed first that once “se” (standard error) is converted to standard deviation by multiplying it by 3.46 (being the square root of the sample size of 12), it was clear that both in the RIRDC and the Knych study there were large degrees of dispersion around the mean values. Second, he observed that in the RIRDC study, at all measured time points, the concentration of the metabolites was greater than of the parent drug. Third, he said that the interpretation of the post-treatment OPB concentrations must “involve a degree of caution because of the ‘carry over effect’ of OPB concentrations being derived from previous treatments”. This is clearly a reference to the five days of treatment reported in the study.

26. [57]

    He then said that:

27. [58]

    Two things were thus abundantly clear. First, that Dr Wainscott had not moved from the position he expressed before the stewards’ inquiry. Second, that there was a clear conflict in the expert evidence before the Tribunal. The plaintiff could not succeed in his contentions on appeal as to the timing of the likely exposure of Luvareschs to PBZ if the Tribunal accepted the opinion of Dr Wainscott. His success was contingent upon the Tribunal preferring the opinion of Professor Tobin and/or Dr Major.

28. [59]

    HRNSW also relied upon a report of 16 April 2024 from Mr Keledjian. He explained that the analysis for PBZ was quantitative but the analysis for the metabolites was “qualitative”. He said that:

29. [60]

    He added that the estimates for the OPB and gamma-hydroxyphenylbutazone are “very rough and not suitable for comparison with published literature as they have been used in the claims stated in the Major Report”.

30. [61]

    HRNSW filed responsive written submissions on 26 April 2024. In these, HRNSW relied upon Dr Wainscott’s evidence before the stewards’ inquiry, including his evidence that the whole situation is “cloudy” because of the confounding effects of urine pH and the fact that different formulations may have different effects. HRNSW also relied upon Dr Wainscott and Mr Keledjian’s reports and submitted that:

31. [62]

    The submissions then set out that Dr Major did not explain how he had narrowed the source of exposure to “licking or eating” nor what “close to the time of testing” meant.

32. [63]

    The plaintiff contended that HRNSW’s submissions should not be understood as having made a generalised assertion that Dr Major’s report could not be relied upon. Rather, he contended that the apparently general contention to this effect should be understood as having been limited to the more specific matters elaborated upon in the submissions.

33. [64]

    That contention must be rejected. HRNSW made a general submission that Dr Major’s report could not be relied upon because it was “littered with speculation”. HRNSW then elaborated upon the “substantive issues” arising from the report. In these submissions, HRNSW clearly put in issue (as should in any event have been obvious) that an issue before the Tribunal was the weight to be given to Dr Major’s conclusions and, in particular, whether the Tribunal should find that Dr Major’s opinions were speculative.

34. [65]

    By way of reply, the plaintiff filed a report of 3 May 2024 from Dr Major, headed “Notes on Report of Dr Martin Wainscott re [Goadsby] dated 11th April 2024”. Given its significance, I will extract the whole of this report:

35. [66]

    This report, again, does not provide any explanation for Dr Major’s conclusion as to the timing of exposure, now expressed by reference to the time of “collection” rather than the time of “racing”. Nor does it grapple with Mr Keledjian’s evidence as to the unreliability of the level of OPB being recorded as 76 ng/ml, upon which Dr Major placed express reliance in his report of 5 December 2023.

36. [67]

    The plaintiff also filed a reply report of 10 May 2024 from Professor Tobin. Again, given the grounds of review, this report does not bear on the issues before this Court.

37. [68]

    In reply submissions filed on 10 May 2024, the plaintiff submitted that the issues of fact for determination by the Tribunal were:

38. [69]

    These submissions make it plain that the plaintiff well understood that one key matter in dispute was whether the Tribunal should rely upon the evidence of Dr Major to find that the exposure of Luvareschs to PBZ occurred at the Newcastle Raceway rather than at the plaintiff’s stables.

39. [70]

    The only oral evidence before the Tribunal on 12 August 2024 was from Mr Keledjian. In cross-examination, Mr Keledjian said that the estimate of the OPB was “a rough estimate with a significant margin of error”. He was not shaken in his evidence as to this. However, he did agree that, as a matter of probability, the level of OPB was likely to be less than the detected level of PBZ, adding later that: “[t]he phenylbutazone reading that we got was based on good screening precision work. The oxyphenbutazone was not. It was estimated to be lower. And that’s all I have”.

40. [71]

    It was put to him that the only way that this could be explained was if the PBZ had been introduced within two hours before the sample was taken, but he responded that he was not in a position to answer when a substance may have been given and at what time and what dose.

41. [72]

    The plaintiff did not seek to call Dr Major to explain what conclusions he would draw from the level of OPB recorded having regard to Mr Keledjian’s oral evidence.

42. [73]

    The plaintiff filed written closing submissions on 22 August 2024 contending that the Tribunal ought be satisfied on the balance of probabilities that contamination with PBZ occurred after Luvareschs arrived at the Newcastle Raceway, relying upon the expert evidence of Dr Major and Professor Tobin. As to this, the plaintiff submitted that the weight to be attached to Dr Major’s opinion was:

43. [74]

    The plaintiff referred to, and was thus plainly well aware, that HRNSW’s position was that, on the scientific evidence available, the period of exposure could not reliably be refined within the 24 hour period leading up to the race.

44. [75]

    The plaintiff contended, however, that the “only reasonable explanation for very little conversion [of PBZ to OPB] having taken place at the time of the urine sample being taken is Dr Major’s opinion”.

45. [76]

    HRNSW, in its written closing submissions filed on 2 September 2024, relied upon Dr Wainscott’s evidence as summarised at [37] above, and contended:

46. [77]

    HRNSW contended, further:

47. [78]

    HRNSW then made a number of discrete criticisms of Dr Major’s evidence. HRNSW raised the variance in Dr Major’s opinion in his first report between exposure being “very close to the time of racing”, on the one hand, and “close to the time of testing” on the other.

48. [79]

    Significantly, HRNSW contended that Dr Major’s opinion in his report of 3 May 2024 was reached “without exposing his reasoning”. HRNSW also contended that Dr Major did not expose his reasoning from the “vague reference to ‘close to’ in his [first] report, to ‘within 2 hrs of collection’” in his second report, and contended that his evidence ought not be relied upon.

49. [80]

    Again, the plaintiff contended that the more general contentions of HRNSW as to Dr Major’s evidence should be limited by the more specific criticisms. Again, that contention must be rejected. It was crystal clear from these submissions that HRNSW’s contention was that the Tribunal should not rely upon the entirety of Dr Major’s evidence because it was flimsy and he had not exposed his reasoning as to his key conclusion that the ‘contamination event’ occurred within two hours of collection.

50. [81]

    HRNSW further contended that the Tribunal should not place any weight on the qualitative reading of OPB, which removed “what is apparently a central plank underpinning” the opinion of Dr Major. That submission plainly referenced Dr Major’s reliance in his report of 5 December 2023, and by implication also in his report of 3 May 2024, upon the OPB level being 76 ng/ml. At no point in his reports did Dr Major offer any opinion predicated simply upon the OPB level likely being lower than the PBZ level. Having regard to the evidence of Mr Keledjian, that was, however, the only relevant issue in considering the significance of the respective levels of PBZ and OPB as reported.

51. [82]

    HRNSW then submitted:

52. [83]

    Again, this directly raised, as an issue, whether Dr Major’s evidence should be relied upon given that HRNSW said that his opinion as to timing was speculation.

53. [84]

    In reply, the plaintiff contended that HRNSW had not grappled with the expert evidence and that HRNSW had “misunderstood” the evidence and their submissions were thus senseless and without substance and should be rejected. So far as relevant to the issues raised in these proceedings, the plaintiff’s primary response to HRNSW’s contentions as to the weight that should be given to Dr Major’s evidence was to identify that Dr Major’s conclusions were “unchallenged” given that he was not cross-examined and to contend that the respondent’s criticisms offended the rule in Browne v Dunn (1893) 6 R 67. Rather, the plaintiff’s submissions contended that the “fundamental issue in the case” was the weight to be attached to the reported level of OPB.

54. [85]

    Whilst the plaintiff asserted that Dr Major’s opinions were not speculative, he did not explain in substance why this was so.

55. [86]

    The Tribunal noted that Mr Keledjian had agreed that the true reading of OPB was lower than the reading of 308 ng/ml for PBZ. However, the Tribunal found that Dr Major’s report was of little weight and thus that the significance attached by the plaintiff to Mr Keledjian’s evidence was significantly reduced: TD [61]. Given the centrality of the Tribunal’s finding that Dr Major’s evidence was of little weight, I propose to extract the entirety of the Tribunal’s reasoning leading to this conclusion:

56. [87]

    Pausing there, that issue whether the Tribunal should reach that key conclusion was unquestionably raised by the submissions of HRNSW that Dr Major’s report was “littered with speculation” (see [61] and [64] above), was “guesswork” (see [76] above), that key conclusions were bereft of reasoning or speculative (see [78]-[82] above) or flimsy (see [77] above) and was in any event obvious given the lack of reasoning in Dr Major’s two reports. The Tribunal continued:

57. [88]

    As to this, the plaintiff was clearly on notice that the Tribunal might make the observation at TD [52] having regard to HRNSW’s contentions as summarised at [87] above and on the face of Dr Major’s report. The matters at TD [53] and TD [54] are obvious on the face of the report and the vagueness of Dr Major’s opinion as to timing was in any event raised in HRNSW’s submissions (see [62] and [78]–[79] above).

58. [89]

    The Tribunal then observed:

59. [90]

    The matter at TD [57] was expressly raised by HRNSW in its submissions (see [62] above). The shifts in how Dr Major expressed his opinion as to timing, and his lack of reasoning in support of these opinions, were also expressly raised by HRNSW (see [78]–[79] above).

60. [91]

    The Tribunal continued:

61. [92]

    The matters at TD [60] were obvious on the face of Dr Major’s reports. It was not a shortcoming that the Tribunal was obliged to draw to the plaintiff’s attention in circumstances where the plaintiff had given evidence before the stewards’ inquiry as to potential causes of contamination, HRNSW submitted in opening submissions that the plaintiff’s “husbandry failures” were the most likely cause of exposure, and in closing submissions HRNSW maintained that the evidence of what occurred at the plaintiff’s property was “of more importance” to the Tribunal in determining the source of contamination..

62. [93]

    Having regard to these matters the Tribunal concluded at TD [61]:

63. [94]

    The Tribunal ultimately accepted the evidence of Dr Wainscott and did not accept the time frames adopted by Professor Tobin and Dr Major. That was a key finding leading to the dismissal of the plaintiff’s appeal.

64. [95]

    As is apparent from the analysis set out above, the plaintiff had a meaningful opportunity to ascertain the matters in issue before the Tribunal. There was no denial of procedural fairness. Ground one must be dismissed.

Ground two: reasons

1. [96]

   Ground two can be dealt with briefly. As is plain from the extracts from the Tribunal’s reasoning set out above, the Tribunal adequately explained why it was that the evidence of Dr Major should be given only little weight.

2. [97]

   As Leeming JA held in Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [16] (Payne and Simpson JJA agreeing):

3. [98]

   In that case, Payne JA observed at [62] that:

4. [99]

   The question for the Tribunal was one of evaluation. In the 13 paragraphs of the Tribunal’s reasons devoted to the evidence of Dr Major, the Tribunal more than adequately explained why it was that the issue of the reliability of, and weight to be given to, the evidence of Dr Major should be resolved against the plaintiff. Nothing more was required.

5. [100]

   Ground two must be dismissed.

Conclusion

1. [101]

   This application for judicial review must be dismissed. There was no submission that anything other than the usual order for costs should be made. Accordingly, the plaintiff should pay the first defendant’s costs.

2. [102]

   The orders are:

   1. (1)

      The plaintiff’s amended summons filed 28 March 2025 is dismissed.

   2. (2)

      The plaintiff is to pay the first defendant’s costs.