Kavanagh v Racing New South Wales [2019] NSWSC 40

Kavanagh v Racing New South Wales [2019] NSWSC 40

A finding of breach of AR 175(h)(i) cannot be upheld where the evidence does not establish that the trainer knew or believed a prohibited substance was administered for the purpose of affecting performance, and the Tribunal’s penalty reductions for special circumstances were manifestly inadequate and unjustified in light of the plaintiff’s lack of knowledge and blamelessness. The decision to cumulate penalties without hearing the plaintiff was a denial of procedural fairness.

Parties
Plaintiff: Sam Kavanagh; First Defendant: Racing New South Wales; Second Defendant: Racing Appeals Tribunal
Jurisdiction
Australia
Judgment Date
15 February 2019
Procedural Posture
Judicial Review / Judgment on Application for Orders Quashing Tribunal Decision and Penalties
Outcome
Application allowed in part
Legal Topics
Judicial Review of Tribunal Decisions, Construction of Australian Racing Rule 175(h)(i), Licensing and Regulation of Horse Trainers, Procedural Fairness, Delegation of Functions Under Racing Rules
Administrative Law Professional Regulation Judicial Review of Tribunal Decisions Construction of Australian Racing Rule 175(h)(i) Licensing and Regulation of Horse Trainers Procedural Fairness Delegation of Functions Under Racing Rules

Case Brief

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Parties

Sam Kavanagh

Plaintiff

Racing New South Wales

First Defendant

Racing Appeals Tribunal

Second Defendant

Procedural Posture

Judicial Review / Judgment on Application for Orders Quashing Tribunal Decision and Penalties

Legal Issues

  1. 1 Whether knowledge or belief of the identity or effect of a prohibited substance is required for liability under AR 175(h)(i)
  2. 2 Whether the Tribunal erred in reducing the mandatory penalty by only 11% for special circumstances under LR 108(2)(d)
  3. 3 Whether the plaintiff was denied procedural fairness regarding penalty accumulation

Ratio Decidendi

A finding of breach of AR 175(h)(i) cannot be upheld where the evidence does not establish that the trainer knew or believed a prohibited substance was administered for the purpose of affecting performance, and the Tribunal’s penalty reductions for special circumstances were manifestly inadequate and unjustified in light of the plaintiff’s lack of knowledge and blamelessness. The decision to cumulate penalties without hearing the plaintiff was a denial of procedural fairness.

Court Disposition

Application allowed in part

Orders

  • The decision of the Racing Appeals Tribunal finding the plaintiff liable for breach of AR 175(h)(i) is quashed.
  • The penalties imposed by the Tribunal for breaches 1, 5, 13, 14 and 15 are quashed and remitted to the Tribunal for redetermination according to law.