Simiana v Harness Racing New South Wales

1. [1]

   By Summons filed 16 October 2017, Shaun Simiana (Mr Simiana) sought judicial review of a decision made by Harness Racing New South Wales (“HRNSW”) to impose conditions upon his trainer’s and driver’s licence communicated to him in a letter dated 18 September 2017. This decision was made against the background of Mr Simiana having been stood down from all involvement in harness racing in July 2016 followed by various inquiries and appeals.

2. [2]

   The Summons seeks, first, a declaration that the decision of HRNSW to impose conditions upon his trainers and drivers licences is invalid because it is ultra vires, second, an order in the nature of certiorari pursuant to s 69 of the Supreme Court Act quashing the decision, and third an order that “in accordance with the decision of the Racing Appeals Tribunal dated 18 August 2017”, the plaintiff be issued with an A Grade Trainer’s and Driver’s Licence.

3. [3]

   Mr Simiana complains that there was failure to afford him procedural fairness before presenting the conditions, there was a guillotine aspect to the conditions that if he failed to comply with any of the conditions he would have the licences withdrawn immediately and that, inconsistently with the requirements of the Harness Racing Act, the Racing Appeals Tribunal Act and the Rules of Harness Racing, no further applications would be considered. Mr Simiana also argued that some of the conditions are unreasonable and impracticable and amount to a refusal to license him and are inconsistent with the decision of the Racing Appeals Tribunal of 18 August 2017, which found him to be a “fit and proper” person to be registered.

4. [4]

   HRNSW opposes the relief sought, urging the Court to view the decision in the context of the legislation and its objects and purposes as well as the processes within which the proposal for the conditional licence was made. It argues that procedural fairness was afforded by the terms of the letter in that it invited discussion and subsequently specifically invited additional submissions about “the form of the proposed conditions as well as the HRNSW’s power to impose such conditions”. Secondly, the opportunity to do so was in fact taken up, in writing, leading to a further exchange between the parties in early October 2017. The conditions are not ultra vires and are not, effectively a denial of a licence as asserted by Mr Simiana. Having regard to the scope and purpose of the regulatory scheme, in particular of the Harness Racing Act 2009, the conditions are proportionate and appropriate.

Legislative and Regulatory framework

1. [5]

   Harness Racing in New South Wales is regulated by the Harness Racing Act 2009. Pursuant to that Act, HRNSW is a body corporate comprising five members appointed by the Minister.

2. [6]

   Section 9 of the Act provides for the functions of HRNSW:

3. [7]

   The powers of HRNSW are broad. Relevantly to these proceedings s 10 provides as follows:

4. [8]

   Section 11 provides for the registration functions of HRNSW:

5. [9]

   Part 3 of the Act sets out the provisions for “Control and Regulation of harness racing.” Division 1 deals with registration. Section 18 makes provision for registration of harness horses and persons associated with harness racing as follows:

6. [10]

   Division 2 of Part 3 provides for rule-making:

7. [11]

   HRNSW has adopted the Australian Harness Racing Rules (“AHRR”). These rules provide for a wide variety of aspects of harness racing. Part 2 of the AHRR deals with Stewards and their powers. Rule 15 provides relevantly as follows:

8. [12]

   Rule 15A gives stewards a right to enter land:

9. [13]

   Part 4 of the AHRR provides for licences. Rule 90 provides for the grant of licences as follows:

10. [14]

    Part 11 of the AHRR deals with enquiries and investigations. Rule 181, under the heading ‘Conduct and Scope’ provides that the Stewards may, and, when directed by the Controlling Body, shall, conduct inquiries or 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.

11. [15]

    Part 12 of the AHRR deals with prohibited substances, including that a controlling body may determine what is a prohibited substance, provision for the testing for such substances (including in and out of competition), the requirement for trainers to keep log books, provision for evidentiary certificates, possession on course of unregistered substance and disqualification.

12. [16]

    There was an unresolved background issue between Mr Simiana and HRNSW regarding the basis upon which it determined in early 2017 that he should be disqualified and suspended. That issue was the validity or otherwise of the evidentiary certification HRNSW relied upon to assert Mr Simiana had engaged in “doping”. Rule 191 provides for this process.

13. [17]

    Senior counsel for HRNSW submitted that this Rule highlights the seriousness with which the use of prohibited substances (“doping”) is treated providing as it does for an “absolute liability offence” once the regulator has two certificates showing the presence of a prohibited substance.

14. [18]

    HRNSW also had “Local Rules” in place which provided an expanded articulation of the Stewards’ power to enter premises.

15. [19]

    Also relevant is Local Rule 181:

16. [20]

    Mr Simiana’s various appeals that occurred before these proceedings were governed by the Racing Appeals Tribunal Act 1983 and Racing Appeals Tribunal Regulation 2015. At the time of hearing, Mr Simiana’s appeal against disqualification was yet to be heard and his disqualification had been stayed pending the full appeal hearing. It was common ground that the effect of the Regulation (Clause 9) is that whilst the Tribunal has jurisdiction to review decisions of HRNSW to refuse or suspend a licence, no appeal lies to the Tribunal regarding licence conditions. The only avenue of review for that is this Court.

17. [21]

    The Licensing Committee charter was tendered on behalf of Mr Simiana. In the first part of the document, under the heading “Objectives” the following is stated:

18. [22]

    Part 3.0 of the document provides, under the heading “Duties and Responsibilities”, a very wide list of powers described as “the role of the committee”, including relevantly:

19. [23]

    Committee Membership is stated to comprise a minimum of four persons appointed by the Board of HRNSW. That would normally comprise a Registrar/Licensing Manager, Integrity Officer or their representative which must be the CEO, Licensing Officer and Chief Steward or their representative. There is provision for a Chairperson and for secretarial assistance. The Committee will be assigned a secretary. Generally the Licensing Officer will fulfil this role. It is stated in 4.2 that the Secretary will be responsible, in conjunction with the Chairperson, for recording and keeping the minutes of meetings.

20. [24]

    There is provision for Committee procedures. It is stated that meetings should be held every two weeks or as otherwise reasonably determined, and there needs to be an agenda circulated to Committee members prior to each meeting, supported by explanatory documents where necessary.

21. [25]

    In 5.2 there is provision for a quorum which must consist of the Chairperson, a representative from the Stewards (to ensure the inclusion of industry intelligence and practicing knowledge) and the Registrar/Licensing Manager or Licensing Officer to ensure that the implications of Committee decisions are fully considered.

22. [26]

    5.3 provides that each member of the Committee possess one (1) equal vote in relation to any Committee matter and that this can be exercised individually or by a representative and all decisions of the Committee must be passed by a majority decision of the Committee.

23. [27]

    Provision 5.5 under the heading “Special Conditions” provides that where the Committee decides to attach special conditions to a licence, the Committee shall agree on the intent of the wording of the conditions that attach to the licence and the wording of the conditions are to be recorded in the minutes of the Committee meeting.

24. [28]

    5.8 provides for “Decision Conveyance”:

25. [29]

    Part 6.0 deals with emergency decision making. There is provision for decisions to be made without a meeting in “exceptional circumstances”. It is not suggested that the circumstances relevant to this case invoked those emergency decision making provisions.

Factual background

1. [30]

   Mr Simiana has been a trainer of standard bred horses for harness racing for approximately 15 years and has held an A grade licence to drive and train horses for over 13 years.

2. [31]

   His licences had last been renewed on 1 September 2015, at which time he was granted an A Grade licence to drive and train.

3. [32]

   On 29 July 2016, he was stood down from all involvement in harness racing pending an enquiry by the Stewards. On 15 February 2017, the enquiry concluded with Mr Simiana being found guilty of eight charges relating to the presence of a prohibited substance in and administration of a prohibited substance to horses in April and May 2016. A decision was made by the Stewards to impose a period of disqualification of 16 years.

4. [33]

   An appeal was lodged and a stay of the orders and lifting of the suspension was sought. It was argued that rule 191(7) applied and so the certification of substance was materially flawed and so of no evidentiary value. It was also argued that there was evidence provided to the Stewards that showed that this was so but it was ignored.

5. [34]

   On 5 May 2017, the Racing Appeals Tribunal decided that the orders and decision of the Stewards should not be carried into effect pending the hearing of the substantive appeal. The suspension was lifted and disqualification stayed.

6. [35]

   On that day Mr Simiana applied for renewal of his licences. After an exchange in relation to showing cause HRNSW provided a letter dated 4 July 2017 explaining that Mr Simiana’s application for issue of licences was refused. Reasons were provided in that correspondence. On the same day Mr Simiana lodged an appeal with the Racing Appeals Tribunal.

7. [36]

   The appeal proceeded on a number of bases, one of which was that an issue estoppel applied by virtue of the Racing Appeals Tribunal’s decision of 5 May 2017. The Tribunal stated in its decision of 18 August 2017, that the 5 May 2017 decision provided for the stay of the disqualification, but did not determine the issue of fitness and propriety which required separate consideration under s 11 of the Act, ([17] of the 18 August 2017 decision) and no estoppel could apply.

8. [37]

   After reviewing the evidence and submissions, the Tribunal concluded that Mr Simiana was a fit and proper person to be issued with a licence.

9. [38]

   On 22 August 2017, Mr Simiana’s solicitor wrote to the Tribunal demanding that HRNSW issue licences to Mr Simiana forthwith, claiming it would be a contempt of the Tribunal’s decision if it failed to do so.

10. [39]

    On 23 August 2017 a solicitor acting for HRNSW responded, explaining that the Licensing Committee of HRNSW had not yet convened, and that upon convening, the Committee will be issuing Mr Simiana with a licence “in accordance with the decision of the Tribunal that he is a fit and proper person to hold the same” and further, that “the Committee will consider any necessary conditions to be imposed upon the licence, including any procedural pre-conditions…”.

11. [40]

    The letter also stated:

12. [41]

    The letter then goes on to provide reasons why HRNSW is entitled to impose licence conditions and not be in contempt of the Tribunal because, amongst other things:

13. [42]

    On 25 August 2017, the solicitor acting for Mr Simiana emailed the Racing Appeal Tribunal Secretary directly stating:

14. [43]

    Correspondence between various HRNSW personnel and its solicitor followed. On 1 September 2017 a short decision from the Tribunal was formalised to the effect that the Tribunal was not prepared to meet the request made on behalf of Mr Simiana stating that:

15. [44]

    Minutes tendered by HRNSW indicate that on 14 September 2017, the Licensing Committee met and resolved to issue a licence to Mr Simiana with certain specified conditions attached. There was no evidence of any plan or proposal being made at this time to approach Mr Simiana, or his legal advisors, to seek input at all regarding the content of the conditions.

16. [45]

    On 18 September 2017, a letter was sent to the Mr Simiana. The full text of the letter is included in this judgment because there is an issue between the parties as to whether the letter should be considered to be a proposal for discussion between Mr Simiana and HRNSW, or communication of HRNSW’s decision already made.

17. [46]

    On 28 September 2017, Mr Simiana’s solicitor forwarded a letter to HRNSW complaining of problems with the conditions, in particular that Mr Simiana had not been given an opportunity to be heard and that the proposed conditions were unreasonable and impracticable. It was argued that conditions 1 and 6 were inconsistent with the provisions of the Harness Racing Act, the Racing Appeals Tribunal Act and the Racing Appeals Tribunal Regulation, because they purport to avoid the application of the provisions contained in those statues and regulations that govern imposition of sanctions and cancellation of licences. (Whilst not elaborated upon in detail in this letter, this seems to be a reference to conditions 1 and 6 having the potential effect of removing Mr Simiana’s right to be heard on a suspension or withdrawal of his licences if there is an asserted breach of a condition). The letter also argues that conditions 2 and 3 are inconsistent, and that the conditions are unlawful and are liable to be set aside.

18. [47]

    The letter then goes on to demand a conditionless licence on the basis that this would be consistent with the decision of the Tribunal of 18 August 2017, and threatened legal action if the licence was not issued as demanded.

19. [48]

    On 3 October 2017, a letter was sent by HRNSW’s solicitors:

20. [49]

    On 4 October 2017, a letter was sent by Mr Simiana’s solicitor to the solicitor for HRNSW. The full text is included because it sets out in detail matters of substance directly responsive to the requests made in the 3 October letter.

21. [50]

    No acknowledgment of this letter or any reply was provided to Mr Simiana or his solicitor. There is no minute or formal record of the Licensing Committee indicating that the contents of this letter was discussed or considered by the Committee or whether any fresh decision was made or the previous decision despite the matters raised, affirmed.

22. [51]

    On 16 October 2017 the Summons commencing these proceedings was filed. A submission was made by senior counsel for HRNSW that this filing was in the “middle” of discussions, but no evidence of any such discussions was tendered.

HRNSW Evidence regarding procedural fairness September/October 2017

1. [52]

   In his affidavit sworn 22 December 2017, Mr Prentice, the Integrity Manager employed by HRNSW and Chairperson of the Licensing Committee, stated that he had chaired the meeting of the Licensing Committee on 14 September at which the conditions were discussed and the determination made about them. He states that he provided the letter from Mr Simiana’s solicitor dated 28 September 2017 complaining about the proposed conditions by hand to the other members of the Licensing Committee. The date(s), manner or circumstances in which he did so is not specified. He stated that “we all discussed it”, although he acknowledged that no formal meeting was convened and no minutes taken.

2. [53]

   In his supplementary affidavit, sworn on the day of the hearing, 1 February 2018, Mr Prentice described that the discussions primarily took place with each member of the Committee individually with him, and not all at the same time, although he recollected there “may have been an occasion when he, a Mr Wootton and Mr Loch all discussed the matter together”.

3. [54]

   Mr Prentice stated that none of the members changed their position in respect of the proposed conditions, other than the revision that was set out in the letter of 3 October 2017 in respect of condition 6, that HRNSW would not press the aspect of that condition which states “and no other licence conditions will be considered by HRNSW”. (It was common ground that the letter contains an error and that part of the condition should read “and no other licence applications will be considered by HRNSW”).

4. [55]

   Objection was taken to Mr Prentice’s February 2018 affidavit to the extent that it purported to speak for what other members of the Licensing Committee felt or decided. I did not accede to that objection but I am of the view that the evidence relied upon from Mr Prentice on this important issue was vague and unsatisfactory. There was no evidence as to how and when the material set out in the 4 October letter was considered by the Committee members, so whilst there is some evidence showing some consideration had occurred of the contents of the 28 September letter and the 3 October letter was the result of that, nothing cogent or comprehensible was stated about due consideration having been given to the matters set out in the 4 October letter or the Committee’s prior decision being re-affirmed, despite those matters.

HRNSW’s evidence regarding the reasons behind conditions 2 and 3

1. [56]

   Mr Prentice deposed to it being the standard protocol of HRNSW for the trainer or an authorised representative of the trainer to be present when samples are collected and tested by HRNSW. He also stated that this is a protocol endorsed by the Australian Racing Forensic Laboratory’s collection procedures there is a standard form in the testing kit that provides for a witness to acknowledge the sample collection process. He says that HRNSW has adopted the ARFL guidelines as its standard collection protocol.

2. [57]

   Mr Prentice goes on to explain:

3. [58]

   Mr Prentice agreed in cross-examination that it was necessary to proceed with testing urgently and that in those circumstances the Stewards would not wait for the attendance of Mr Simiana or his nominee.

The Grounds for Review

1. [59]

   Mr Simiana identified four bases for challenging the conditional licence decision. The first is that there was a failure to accord procedural fairness. The second is that the imposition of conditions 1 and 6, together with the requirement that Mr Simiana acknowledge that the conditions will lead to automatic withdrawal of licences, is ultra vires and contrary to law. The third is that the imposition of conditions 2 and 3 amount to an effective denial of a licence and are therefore beyond power and contrary to the decision of the Racing Appeals Tribunal of 18 August 2017. The fourth is that the conditions, in particular conditions 2 and 3 are manifestly unreasonable and so are invalid and liable to be set aside.

2. [60]

   It is convenient to deal with the submissions made and my determination in respect of each of the grounds of review in this order.

First Ground: Procedural Fairness

1. [61]

   Clearly the decision of HRNSW to impose conditions upon the grant of licences to Mr Simiana directly affects his rights and interests. HRNSW did not argue to the contrary. Mr Simiana submitted that procedural fairness required that HRNSW sought submissions or comment from him before purporting to impose the conditions set out in the 18 September 2017 letter. Prior to that letter and the decision communicated in it, there was no opportunity given to make submissions concerning the practicality of compliance with any conditions, (let alone the ones that were proposed) or his capacity to comply with them. There was no opportunity to address the necessity or justification for the imposition of conditions 2 and 3 requiring his or an authorised person’s attendance within one hour’s notice, at the unscheduled behest of a Steward.

2. [62]

   HRNSW argued first that procedural fairness was provided during the “whole question of the application for renewal of his licence”. The whole of the relevant procedures must be taken into account in assessing whether there has been procedural unfairness, rather than examining only a particular stage of the process: Greyhound Racing NSW v Cessnock & District Agricultural Association [2006] NSWCA 333 [80] per Basten JA. Due process here entailed the show cause notice issued to Mr Simiana on 23 May 2017 seeking his submissions as to being a fit and proper person to be licensed. Submissions about that were provided on 26 May 2017. The Court should also take into account that after the Licensing Committee’s refusal to issue licenses on 4 July 2017, Mr Simiana was provided with reasons. He then appealed that decision which was determined by the Tribunal on 18 August 2017, also with reasons. Mr Simiana proceeded on the (mistaken) basis that he was entitled, because of the decision of the Tribunal, to be granted an unconditional licence. The Tribunal (correctly) declined to do so because in the words of the Tribunal:

3. [63]

   It was submitted that it is a misconstruction to treat the 18 September 2017 letter alone as the operative decision. There was no effect upon Mr Simiana by the proposed licence conditions because nothing came into effect until he chose to acknowledge the conditions and sign to that effect. It was implicit up to that point that changes could be made prior to the conditions coming into effect as conditions on the licence, just as conditions could have been varied once they were in place in accordance with AAHR 90 (8).

4. [64]

   Second, HRNSW argued that the written notice of the proposed conditions contained in the 18 September 2017 letter contained an “implicit invitation” to respond to, query or comment on the nature of the conditions. The basis for this interpretation was stated to be that he was required to acknowledge that he understood the conditions and was invited to contact the HRNSW Integrity Manager if he required any further information.

5. [65]

   Third, HRNSW argued that Mr Simiana was expressly provided with an opportunity to provide additional submissions about the form of or HRNSW’s power to impose such conditions by its 3 October 2017 letter. To the extent that there was any procedural defect at the time of the letter of 18 September 2017, it was cured on 3 October when Mr Simiana was invited to make additional submissions.

6. [66]

   Finally, it was argued that there would have been no difference to the outcome, even if submissions were made before the operative decision.

7. [67]

   I find the submissions of HRNSW on this ground flawed and unconvincing. There does not appear to be any issue taken that HRNSW is required to accord procedural fairness in the making of its decision to impose conditions on the licences because it affects the rights and interests of Mr Simiana. There was no submission made that there was any contrary statutory intention. The law is abundantly clear that in such circumstances, procedural fairness must be accorded. The area for difference was centered upon what could be termed the necessary “content” of the requirement to provide procedural fairness in this context, identified in Minister for Immigration and Border Protection v Wzarh (2015) 256 CLR 326 [30] per Kiefel, Bell and Keane JJ, as “the real question; namely what is required in order to ensure that the decision is made fairly in the circumstances having regard to the legal framework within which the decision is to be made”.

8. [68]

   One thing that is clear from the structure of the Act, Regulation and AHRR as well as HRNSW submissions and the determinations by the Racing Appeal Tribunal and the approach of HRNSW and its legal representatives in correspondence, is that the registration functions and decision-making of HRNSW, with the associated determination as to whether Mr Simiana is a fit and proper person to be registered is an entirely separate matter to the licensing functions and decision-making of HRNSW’s delegate, the Licensing Committee, pursuant to AAHR 90. The operative decision is not about Mr Simiana’s registration. That has already been decided by the Tribunal. The operative decision is the decision to only issue licenses with interrelated conditions attached.

9. [69]

   In my view there is nothing in the correspondence leading up to the determination made by the Licensing Committee on 14 September or contained in the letter of 18 September 2017 that invites, inferentially or otherwise, debate, submission or argument regarding the conditions. The language employed by HRNSW is pre-emptory. It is clearly stated that no licence will be issued other than a licence conditional upon the six matters referred to and that any breach will result in immediate withdrawal of the licences, with no other licence applications to be considered by HRNSW.

10. [70]

    To respond to the complaint by Mr Simiana’s lawyer set out in its letter of 28 September with an invitation to “provide submissions about the form of or HRNSW’s power to impose such conditions” does not “cure” the defect. First, as I have already concluded the decision has already been made by the Committee and minuted, formalised and communicated in accordance with the requirements of the Licensing Committee charter.

11. [71]

    Second, I accept the submission made in reply by counsel for Mr Simiana that failure to accord procedural fairness cannot be cured by the provision of an opportunity to make submissions after a decision has been made per Calvin v Carr (1980) AC 574 at 591H-596G; (1979) 1 NSWLR 1 at 10C-14F. Asking for submissions about conditions already decided does not cure procedural fairness defects simply because the actual licence cannot come into effect until the plaintiff chooses to acknowledge all the conditions and sign to that effect.

12. [72]

    A submission (faintly made) that Mr Simiana being placed on notice in July or August 2017 of the likelihood of conditions being imposed somehow informs the situation is rejected. Until a proposal, or at least an outline of what was being considered in terms of conditions is articulated in some way, there would be nothing upon which Mr Simiana could be heard. The approaches requesting unconditional licences had already been clearly and comprehensively rejected by HRNSW.

13. [73]

    The submission that relief is futile because no difference would have been made to the outcome is also rejected. Even after consideration of the 28 September letter alone, condition 6 was modified in a very significant way. There has to have been, at the very least, a possibility that a proper consideration of submissions before the defining of conditions could have led to a different outcome.

14. [74]

    Procedural fairness was not accorded prior to the operative decision. There is no evidence upon which I can place any weight that the matters raised on Mr Simiana’s behalf in the 4 October 2017 letter were considered and taken into account by the Licensing Committee.

15. [75]

    The first ground has been made out. I am of the view that an order in the nature of certiorari pursuant to s 69 of the Supreme Court Act quashing the decision should be made, based on the success of this ground alone.

Second Ground: Conditions 1 and 6 are ultra vires

1. [76]

   The Harness Racing Act and the Racing Appeals Tribunal Act and Regulations make explicit provision for the grant and revocation of licences and provide a right of appeal against a revocation or a refusal to issue licences, however, given the potential for direct effect on Mr Simiana’s rights and interests, the circumstances require a right to be heard before the suspension or revoking of a registered person’s licence takes place, as concluded in Day v Harness Racing NSW [2014] 88 NSWLR 594 [100] to [107].

2. [77]

   Because the terminology of conditions 1 and 6 incorporate as a consequence of breach, “immediate revocation of the licences” and “immediate withdrawal of your licences”, Mr Simiana argues the requirement that he acknowledge the conditions (combined with the further acknowledgement that he “agrees that failure to comply with any of the above conditions, in any manner, will result in the immediate revocation of the licences”), potentially removes, or, at the very least, interferes with his rights to be heard against revocation or withdrawal of the licenses before that step is taken.

3. [78]

   HRNSW argued that Mr Simiana would retain his right to have a full merits review by way of rehearing by the Tribunal pursuant to regulations 9(a) and 9(g) and s 15B (2) of the Racing Appeals Tribunal Act but this does not remedy this problem however. This is a different right, and is one that is after the event, and after the rights to continue as a licensed trainer/driver have already been affected.

4. [79]

   HRNSW also emphasised that it was “not pressing” the final part of condition 6 that “no other licence applications will be considered by HRNSW”. This flourish was clearly ultra vires and I would determine it to be so if it was pressed. Although removed from argument before me, it betrays a somewhat pre-emptory mindset by the Licensing Committee in its dealings with Mr Simiana.

5. [80]

   I accept Mr Simiana’s submission that conditions purporting to provide for automatic revocation/withdrawal in the event of an asserted breach of condition, and a requirement that the plaintiff acknowledge and agree to automatic revocation/withdrawal in those circumstances, potentially denies Mr Simiana his entitlement to a hearing before suspension or revocation.

6. [81]

   I accept the submissions made on behalf of Mr Simiana that conditions 1 and 6 are thus inconsistent with provisions of the Harness Racing Act and Racing Appeals Tribunal Act and the rights available to Mr Simiana under those Acts.

7. [82]

   I accept the submission made on behalf of Mr Simiana that imposing as a condition of the grant of a licence that the recipient of the licence agrees to forfeit his right to a proper hearing on suspension or withdrawal of a licence, whether before Harness Racing NSW or its Stewards or an Appeals Tribunal, is ultra vires.

8. [83]

   I reject the argument that the appeal provisions in the Act and Regulations sufficiently deal with the relevant right which is being interfered with by conditions 1 and 6 because those conditions affect his rights to be heard prior to revocation or withdrawal of his licences for an arguable breach of condition.

9. [84]

   I conclude that even putting to one side the flourish “no other licence applications will be considered by HRNSW”, condition 6 is ultra vires and condition 1 is ultra vires to the extent that it provides for “immediate revocation of the licences”.

10. [85]

    The overriding role of condition 6, providing as it does for an automatic licence loss for any breach, particularly when read with the terms of the “Acknowledgment” provides a further ground for quashing the Licensing Committee’s decision.

Third Ground: Conditions 2 and 3 amount to effective denial of licences

1. [86]

   In his affidavit of 13 October 2017, Mr Simiana sets out the problems he would have with complying with conditions 2 and 3. They are a more detailed account of the issues raised in the 4 October 2017 letter. Mr Simiana’s position is that it is unlikely that any trainer could comply with the conditions other than one operating a very large sophisticated establishment. In practical terms he argued that it required a registered person to be present and available on the property at all times, including dates such as race meetings when it would be expected that all trainers, drivers and stable hands would be at the race meeting which may well be a long distance away.

2. [87]

   Mr Simiana argued that because of the impracticability of either Mr Simiana or a registered person, if they were away from the property, successfully returning to the property within one hour of notification by a Steward, to comply with this or lose his licence is effectively denial of a licence.

3. [88]

   In my view the submissions made by Mr Simiana overstate the difficulties. There is no doubt that circumstances may arise where the Stewards, without notice, may arrive and neither Mr Simiana or a registered authorised representative is present and it may not be possible for Mr Simiana or a registered person to get back to the property within one hour, particularly given the physical location of the property and the difficulties and vagaries of Sydney road traffic and the type of work Mr Simiana does that requires him to travel to locations some distances away. These problems do not mean that a licence which includes those conditions is effectively a denial of a licence. It does however raise questions as to first whether they are manifestly unreasonable, and in the broader context of the statute, whether they are within power as conditions “necessary to ensure the integrity of Harness Racing in New South Wales”, or even, in the terms of s 10(1) “necessary or convenient to be done, for or in connection with the exercise of its functions “.

4. [89]

   The submissions of HRNSW on this ground focused on the separate function of the Tribunal’s decision of 18 August 2017, overturning as it did the Licensing Committee’s denial of a licence to Mr Simiana on the fit and proper person ground. HRNSW argued that the Tribunal’s decision on this s 11 issue did not relieve the Licensing Committee of its obligations under the regulatory regime (AHRR 90) to otherwise be satisfied of all other matters necessary for the proper issue of the licences sought.

5. [90]

   Whilst there is no doubt about the correctness of that submission, nowhere in its written or oral submissions does HRNSW deal sufficiently with the argument that the practical difficulty in complying with conditions 2 and 3 mean that a licence with such conditions upon it, tied up with the consequences of automatic licence withdrawal if it is breached, creates an untenable set of conditions. An oral submission was made by senior counsel for HRNSW that it would be expected that during “normal business hours” Mr Simiana would have authorised staff present. The problem with this is first, that condition 1 appears to contemplate 24 hour access by the Stewards and second, the tasks of a stable hand or trainer may well not correlate with “normal business hours”.

6. [91]

   In his reply submissions, Mr Simiana emphasised that Mr Prentice’s affidavit indicates that the Committee relied upon an assumption of Mr Simiana’s guilt of the offences the subject of the stay in formulating the decision to impose the conditions, and that conditions 2 and 3 in particular proceed on the assumption that Mr Simiana is guilty of the offences and so has a predisposition to commit similar offences.

7. [92]

   Senior counsel for HRNSW emphasised repeatedly in oral submissions the importance of HRNSW’s role in ensuring that harness racing, which entails wagering and thus public interest, is clear of prohibited substances and not brought into disrepute. I accept that this is clearly an important matter and that I must also take into account the Licensing Committee’s important regulatory role.

8. [93]

   HRNSW argued that Conditions 2 and 3 do not necessarily assume guilt in respect of the charges found proven by the Stewards, but simply reflect the concern that evidence available to the Licensing Committee shows that on two occasions a prohibited substance was found in horses trained by Mr Simiana. It would be wrong to ignore that evidence, despite there being an issue raised about the certificates.

9. [94]

   In my view, for Mr Simiana to assert this requirement amounts to a refusal to issue a licence because he “cannot himself be available in an hour’s notice”, as a general proposition cannot be right. There must be occasions when Mr Simiana is present on the property and probably long periods where this is so. He would likely have a staff member, a trainer or a stable hand also present for long periods. Such people would likely be an authorised person as specified in condition 3.

10. [95]

    There is however a risk that on occasion, conditions 2 and 3, despite best efforts, simply cannot be met if there is an unexpected unscheduled request. The pre-emptory result of such unavailability entailed in condition 6 raises an issue of manifest unreasonableness, however that does not amount to a refusal to issue a licence given the considerations required to be undertaken by the licensing committee, nor does it amount to a decision inconsistent with the decision pursuant to S 11 made by the Tribunal in August 2017 that Mr Simiana was a fit and proper person for registration.

11. [96]

    I reject the ground that conditions 2 and 3 amount to a denial of a licence or that the imposition of the conditions are prima facie contrary to the decision of the Tribunal.

Fourth Ground: Unreasonableness

1. [97]

   HRNSW contended that the conditions are proportionate having regard to the scope and purpose of the regulatory scheme and that the decision to exercise its powers pursuant to the rules to impose conditions on the licences is consistent with the key objective of safe-guarding the integrity of the industry. It also bears a rational connection to what was described by senior counsel for HRNSW as “the ongoing disqualification process”.

2. [98]

   It was submitted that there is an overarching limitation upon judicial review and merits review of an administrative decision and the remaking of that decision is not allowed. This Court’s role is strictly supervisory. Review of a decision on the ground legal unreasonableness does not involve any review of the merits, or a substitution of the Court’s view as to how the decision should have been made or a remaking of the decision according to the Court’s view of the standard of reasonableness. Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 [58] to [65].

3. [99]

   Senior counsel for HRNSW stressed that the decision of the Licensing Committee was within an area of “decisional freedom” thus within the bounds of legal reasonableness. The decision to grant the licence subject to conditions was clearly an evaluative one, informed by policy, and directed towards the purpose of protecting the integrity of the Harness Racing industry. Given the ongoing proceedings concerning the alleged serious breaches of the rules by Mr Simiana in relation to the use of prohibited substances, and the nature of the prohibited substance in issue, there is a rational connection between that and the conditional licence decision. In those circumstances the decision is an entirely rational exercise of the licensing power conferred upon HRNSW. It is wrong to categorise the decision as lacking in evidence or intelligible justification because the basis for it is borne out by Mr Prentice’s affidavit.

4. [100]

   HRNSW also argued that this review ground was fundamentally undermined by the concession offered on behalf of Mr Simiana that HRNSW should be directed to issue an A Grade Trainer’s and Driver’s licence to the plaintiff “subject only to appropriate conditions which might include condition 1 excluding the second paragraph of the condition and conditions 4 and 5”. Reference to appropriate conditions underscores that first, the review sought by the plaintiff goes beyond the strictly supervisory role of the Court in assessing legal unreasonableness and in effect seeks review of the merits of the decision and second, by singling out conditions 1 (in part), and 4 and 5 as appropriate, there is an ostensible concession that those conditions are not ultra vires or otherwise legally unreasonable.

5. [101]

   Mr Simiana argued that the attempted justification for the attendance within one hour’s notice by reference to the short half-life of the relevant prohibited substance is not borne out by Mr Prentice’s evidence, nor is it borne out by the practicalities of necessary testing. It is evident from the Regulations setting out the Stewards’ overriding powers to access properties and proceed to test harness racing horses, that there is no assumed requirement for the presence of Mr Simiana or his nominee. Clearly if there is a belief that there has been an administration of a drug, and one that has a short half-life, one would expect that the Stewards would test as soon as possible because to wait for an hour for the attendance of Mr Simiana or his nominee may well result in destruction of that opportunity for testing. Mr Prentice’s evidence is to the effect that if there is suspicion of a prohibited substance present, it would be necessary to proceed with testing urgently and the stewards would not wait for an hour for the attendance of Mr Simiana or his nominee.

6. [102]

   There is specific provision in the AHRR and Local Rules for video recording of any testing or activities of the Stewards. Neither in the evidence of Mr Prentice, nor in the submissions made on behalf of HRNSW, was there identified any persuasive reason why the physical presence of Mr Simiana or his authorised registered is necessary for the functions of HRNSW to be completed, although the guidelines suggest it may be desirable.

7. [103]

   The Surveillance Devices Act would not prevent recording of the testing process involving people who are aware and consent to their being recorded. To the extent s 8(1)(a) of the Surveillance Devices Act requires the express or implied consent of Mr Simiana to use a video recording device on his property, that consent would be express or implied by the Local Rules 1A and 15(1)(d).

8. [104]

   In my opinion, conditions that have the effect that the licenses will be automatically forfeited if Mr Simiana or his nominee is not present within one hour’s notice, in the circumstances explained by Mr Simiana as to his need, on occasion, to be absent sometimes a long distance from the property, would be considered by many to be unreasonable. However, that is not the test. The question is whether this fits the test of legal unreasonableness. One way to frame the question is to ask whether the outcome of HRNSW’s exercise of power was legally unreasonable, bearing in mind the area of “decisional freedom” within which a decision maker has a genuinely free discretion: (Minister for Immigration and Citizenship v Li and Anor (2013) 249 CLR 249 [29] (French CJ), [66] (Hayne, Kiefel and Bell JJ).

9. [105]

   As outlined by the Full Court in Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at [63]:

10. [106]

    The powers of HRNSW as set out relevantly in [7] of this judgment are very widely expressed but it does not give legal sanction to unfettered discretion.

11. [107]

    Whilst there were no reasons formally accompanying the licence conditions decision, there is reasoning available in the evidence of Mr Prentice. As stated in Eden [64], where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: (Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [47]).

12. [108]

    The problem with the decision to impose the interdependent suite of conditions here is that whilst on first analysis there is some attraction in the reasonableness of seeking the presence and or attendance of Mr Simiana or his nominee so they can witness and acknowledge the testing procedure, when the necessary fact-dependent evaluation is carried out, with careful attention to the evidence (as required by Singh at [42]), there are issues such that the justification is not sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: (See Eden [64] – citations omitted).

13. [109]

    First the selection of one hour is arbitrary given testing would proceed immediately with or without attendance of Mr Simiana or his nominee and second, the effect of condition 6 is immediate revocation of licenses simply because there was not attendance at the premises within one hour after notice, a matter over which, in a number of well-explained circumstances, will be beyond Mr Simiana’s control.

14. [110]

    Although Mr Prentice gave some evidence that the presence of Mr Simiana or his nominee would be desirable in accordance with testing guidelines, AHRR 15A and Local Rule 15(1) make it clear that the Stewards have an unfettered right to enter land, access horses and carry out necessary testing activities without the consent or presence of Mr Simiana or his nominee. Clearly the Steward’s wide power to do so is considered to be a necessary part of the exercise of the functions of HRNSW and is enshrined as such. The requirement of physical attendance by the owner/trainer or nominee is not so enshrined in AHRR or the Local Rules or the Act.

15. [111]

    Senior counsel for HRNSW urged me to accept that the conditions were a proportionate response given the need to safeguard the industry, and against a background of certificates showing breaches in the past and that when I evaluate the decision, bearing in mind the terms, scope and purpose of the relevant statutory power, it does not fall outsider the range of lawful outcomes.

16. [112]

    I reject that submission. The legal unreasonableness arises not just by the one hour attendance demands of conditions 2 and 3, but the consequences of breach, of even, potentially, minutes of late arrival, in circumstances where Mr Prentice confirmed, given the short half-life of some prohibited substances, proceeding quickly to testing was critical and the Stewards would not wait. Given that reality, it seems to me the conditions are, to adopt some of the descriptive language referred to in Eden [65] “capricious”, “irrational”, and “lacking in evident or intelligible justification”.

17. [113]

    This ground of review is also made out.

Costs

1. [114]

   The plaintiff has succeeded. There seems to be no reason why costs should not follow the event. However, if either party wishes to contend for a different order, they should have the opportunity for so doing.

Orders

1. [115]

   The decision of HRNSW Licensing Committee dated 18 September 2017 imposing conditions upon the plaintiff’s training and driving licences be set aside.

2. [116]

   The Licensing Committee of HRNSW determine the plaintiff’s application for training and driving licences forthwith according to law.

3. [117]

   In respect of the other relief sought in the Summons, the parties are to prepare and provide short minutes of order reflective of this judgment within seven (7) days.

4. [118]

   The matter is listed for directions at 11.30 am on Tuesday 29 January 2019 (or such other date or time during that week notified by email to my Associate, which is suitable to the parties.)