RACING APPEALS TRIBUNAL IN THE MATTER OF A STAY APPLICATION BY NEIL DAY 1. Mr Day a licensed trainer, has lodged an appeal against the decision of 13 March 2015 of the Stewards appointed under The Australian Harness Racing Rules to disqualify him for a period of four years for a breach of The Australian Harness Racing Rules, rule 190. He has lodged a Stay Application. 2. The Tribunal has read the Notice of Appeal, Application for a Stay together with the submissions of Harness Racing NSW ( HR )opposing a stay, read the offence record and the stewards report and read the appellant s reply. The Tribunal has perused the transcript and exhibits in view of some of the issues raised. 3. The Tribunal has power to suspend (ie stay) or vary the decision under cl 14 of the Racing Appeals Tribunal Regulation by ordering that the decision not be carried into effect, or be carried into effect to the extent specified and conditions may be imposed. The appellant has lodged the appropriate written application to vest the Tribunal with jurisdiction. Any stay will remain in force until revoked or the appeal is dismissed, determined or withdrawn. 4. The Regulation is otherwise silent as to the tests to be applied for consideration of a stay application. 5. In accordance with established practice this decision is made in the absence of the parties, but after consideration of the documents listed in paragraph 2. 6. The relevant test therefore is that the Tribunal exercise a discretion having regard to the scope and purpose of the legislation and rules of racing considering the material before the Tribunal. 7. The principles that apply therefore are: (a) It is sufficient that the applicant for the stay demonstrate a reason or an appropriate case to warrant favourable exercise of the discretion: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 694. (b) The onus is upon the applicant to demonstrate a proper basis for a stay which will be fair to all parties. (c) The mere filing of an appeal does not demonstrate an appropriate case or discharge the onus. (d) The Tribunal has a discretion involving the weighing of considerations such as balance of convenience and the competing rights of the parties. (e) Where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, the Tribunal should normally exercise its discretion in favour of granting a stay. It was otherwise expressed in Kalifaif Pty Ltd v Digi-Tech (Australia Ltd) (2002) 55 NSWLR 737 at 17 that there is a real risk that he will suffer prejudice or damage, if a stay is not granted, which will not be redressed by a successful appeal. (f) The Tribunal will not generally speculate upon the appellant s prospect of success, but may make some preliminary assessment about whether the appellant has an arguable case, in order to exclude an appeal lodged without any real prospect of success simply to gain time. 1
(g) Therefore if the applicant establishes that the appeal raises real issues and there is a risk of prejudice or damage which will not be redressed then the Tribunal will then consider the balance of convenience ( Kailifair supra). 8. It is necessary to briefly summarise the history of the rule 190 matter between HR and the appellant. In April 2014 notice of inquiry and suspension under rule 183 issued. In October 2014 the Supreme Court refused to set aside the suspension on procedural fairness grounds, determined a breach of 190 was an absolute offence matter and rejected challenges to various rules. In December 2014 the Court of Appeal found a failure to give procedural fairness on the suspension, declined to deal with the issue whether 190 was absolute and rejected the challenges to various rules. On 15 December 2014 suspension under 183 was imposed. On 22 December 2014 application was made for Mr Sanders, the convening steward, to recuse himself from the hearing but this application was rejected on 12 January 2015. This Tribunal determined it had no jurisdiction to hear an appeal from that decision. On 23 January 2015 Supreme Court proceedings were commenced against HR seeking an urgent interim injunction restraining the inquiry and by consent a temporary injunction was imposed. On 9 March 2015 the Supreme Court rejected the apprehended bias proceedings and on the same day HR issued a notice of inquiry hearing for 12 March. On 11 March the Supreme Court declined to restrain HR from conducting the inquiry and removed the rule 190 issue to the Court of Appeal. Correspondence issued between the parties and the different solicitors for the appellant and this will be referred to later. 9. In support of the stay application the appellant submits that he was dealt with in his absence and had no opportunity to be heard on penalty and that the stewards proceeded despite proceedings in the Court of Appeal. 10. In a lengthy submission in opposition to the stay, Mr Cockburn, solicitor for HR, dealt with three key points: hearing in the absence of the appellant, hearing despite proceedings in the Court of Appeal, the appellant not being heard on penalty. It was noted that the appellant s Counsel, Mr Murphy, had made a submission on a rule 187 charge (a failure to appear matter). Substantial correspondence and transcripts were provided. It is not necessary to set out the detail of the correspondence relied upon. It is sufficient to note letters of HR to the appellant s solicitors in the court proceedings of 9 March 2015 and 10 March 2015 which expressly state that if the appellant does not appear the hearing will proceed in his absence and he will be liable to a penalty under rule 187. There is the further letter from Mr Cockburn to the appellant s solicitor in the court proceedings, Mr Berry, which, summarised, contained an undertaking from HR. That undertaking followed the words although our client intends to proceed with the commencement of the inquiries as scheduled on 12 and 13 March, it undertakes. The undertakings were that the inquiry would only deal with certain preliminary matters, take some evidence, consider applications for adjournment, would not finalise the liability phase and after those preliminary matters a further date for resumption would be allocated and that the appellant would not be shut out of calling evidence or making legal argument on the question of liability. It was also emphasised that the inquiry was in the preliminary stage and would not extend to a finding on liability. These undertakings would mean that an injunction was not required pending the determination of the appeal. On 11 March Mr Berry replied, relevantly, noting the confirmation that your clients intended to proceed, with some proposed undertakings, with the inquiries on 12 and 13 March 2015. That letter when on to note his client had no alternative but to move the court for orders. 2
11. It is necessary to put in context the conduct of the hearing for this appellant. It took place the day after the hearing of the case against the co-appellant, Mr McDowell. In a similar stay application for Mr McDowell the appearance by Mr Murphy of counsel for that appellant contained important facts which were set out in the stay application by Mr McDowell. That stay application was considered before this stay application as the hearing by the stewards predated this hearing. The stewards convened twice on 13 March 2015 on Mr Day s hearing.the transcript of the first hearing on 13 March is 9 pages. In summary, Mr Murphy of counsel appeared before the stewards without the appellant. Mr Murphy made it quite clear on many occasions that his client would not attend. Mr Murphy was only present to make an adjournment application and leave for that purpose only was granted. On numerous occasions the stewards indicated to Mr Murphy that the appellant should be present and this was the time for the hearing. Mr Murphy declined on a number of occasions to telephone his client and ask him to attend. No other reference was made to the undertakings given by Mr Cockburn on 11 March. The hearing took some preliminary evidence involving correspondence including in particular the directions to attend. The stewards noted they had not been restrained by the appeal court from conducting the hearing and after noting the nonappearance and the refusal to attend issued a charge under rule 187. After further exchanges Mr Murphy was excused. Shortly thereafter the stewards reconvened and conducted an ex parte hearing and determined the issue of a breach of rule 190 on both an absolute and strict liability test and imposed penalty. 12. On the issue of the hearing proceeding in the absence of the appellant the HR submission relies upon the failure of the appellant to attend a hearing even for an adjournment, the correspondence expressly indicating the matter would be heard in his absence if he did not appear, the lack of any submissions that the undertaking of 11 March would apply, the failure to take numerous extended opportunities to attend, the lack of injunctive restraint and the disregard of the express warnings. On the issue of the fact the appellant has an appeal pending it was submitted that this is not a factor justifying a stay as it is not possible to assess the strength of the appeal and the Tribunal is familiar with the rule 190 issues. Reliance is placed upon remarks made in the Supreme Court proceedings on the weakness of the bias application. Further reliance is placed upon the fact that the stewards were not restrained and that an attempt to restrain the stewards was refused by the Supreme Court. On the issue of being not heard as to penalty it is submitted that that fact was of the appellant s own making by refusing to intend the hearing despite the warnings. A further submission was made in respect of the likelihood of a significant disqualification. 13. HR further submitted arguments in respect of the submission made on behalf of the appellant in respect of the rule 187 charge. The appellant s response to HR's submissions says that it is not appropriate to deal with those matters in this application. The Tribunal is satisfied that those submissions were made for a limited purpose and should not be used for or against the appellant in this application and accordingly the 187 submission of the appellant and the response to it will not be taken into account. In addition, to do so might unnecessarily extend the time required to deal with this stay application and compound the cost issues for the parties. 14. In concluding its submissions HR argue that the appellant has not made out an arguable case for appeal and to the extent that matters are relied upon they are not supported by evidence. On the balance of convenience argument it says that these matters have not been addressed in the submission and the 183 suspension has not been the subject of appeal to this Tribunal. Accordingly the refusal of the stay would not make a successful appeal nugatory. It was submitted that the continuing suspension and a likely additional period of disqualification must be considered. In conclusion it was submitted that the failure to appear at the hearing was a deliberate choice and has not been satisfactorily explained and that the factors to justify a stay have not been enlivened. 3
15. The submission in reply dealt only with the Stay application and, as set out above, opposed the consideration of the submissions on the rule 187 matter. The submission sets out factual matters in considerable detail which are summarised above. The submission touches upon the legal tests to be applied. In this regard the Tribunal adopts those tests set out in paragraph 7 above. It was submitted that there was a proper basis for this stay based upon the filing of an appeal, the raising of an arguable case on appeal on the 190 test and the fact that there is an obligation to accord natural justice. The fact that additional evidence is to be adduced here was relied upon and in this application it is inappropriate to speculate upon the likely success on appeal because further evidence has not yet been submitted. Accordingly it was argued that this Tribunal cannot be satisfied that the appeal has been lodged without any real prospect of success. 16. The submission in reply dealt with the balance of convenience. This required consideration of a difference between a 183 suspension and the disqualification imposed by the stewards because the latter would have a much wider implication for a trainer. It was suggested that the submission by HR that a significant disqualification was likely was a pre-judgement of penalty and that penalty in fact has been the subject of this appeal and there will be new evidence on the appeal and penalty. It was submitted that HR has not pointed to any prejudice it will suffer when a suspension under 183 was imposed to prevent greater damage to the industry. It was submitted that HR have not made any submission on the integrity of the industry concerns whilst they are suspended. It was further submitted that a stay would protect the status quo and be fair. Finally it was submitted that the continuing 183 suspension will continue to protect against any risk to the integrity of harness racing but will mean they are not completely shut out from their livelihoods pending the appeal. 17. To provide some finality in the continuing saga between these parties the Tribunal has determined it is inappropriate to seek a further round of submissions on the stay and has determined to finalise the matter on the submissions made to date. 18. On the prospects of success test, or the arguable case test, the appellant s submissions are not strong. The rule190 absolute or strict liability issue has been dealt with by this Tribunal on numerous occasions, and most recently in Hillier, and found to be absolute as it has been in earlier Supreme Court decisions and most recently in the Supreme Court involving these parties. Nothing has been put in support of this stay application by legal argument, to the extent it would be necessary, to indicate any prospect of success other than that the appellant s legal advisers do not agree that it is absolute. It is acknowledged that there is an issue for the Court of Appeal. On the prospects of success there has been no issue expressly raised on procedural fairness or natural justice. The Tribunal accepts that these tests apply to the stewards and to it but there is nothing to be decided at present on the arguments. The additional evidence to be relied upon on a finding of the breach of the rule or penalty has not been specified to such an extent that it has raised or identified an issue on liability or penalty. The appellant's case on this stay on the prospects of success or an arguable case is very weak. 19. The only issue for consideration on the prospects of success is the letter of is 11 March containing undertakings. The evidence is quite unclear as to the continued operation of those undertakings beyond the time of the letter of Mr Berry indicating that an application would be made to the Supreme Court. That letter in fact acknowledged that the inquiry would commence but it s finality would not take place. There is nothing to indicate those undertakings would continue nor that they would not continue. The only subsequent consideration took place at the stewards hearing. There is nothing in the submissions advanced by Mr Murphy to the stewards which would indicate any reliance was placed upon those undertakings relating to the failure of the appellant to appear before the stewards. There is no other evidence or submission to indicate that those 4
undertakings had any further application. It is quite apparent from what was said at the stewards inquiry that the appellant was not going to appear before the stewards on legal advice and nothing they could say to Mr Murphy would lead to any other outcome. The appellant simply was not going to attend and that was his own choice. It was contrary to the rules. It was contrary to the directions given to him. He could have attended and made his arguments about reliance upon the undertakings or otherwise. For the purposes of this stay application there is no finding that the stewards misled the appellant, or his legal advisers, and there is no finding that the stewards could not have determined to finish the hearing and impose a penalty because of any issue of natural justice or procedural fairness. In any event as a hearing on appeal is a de novo hearing that issue of natural justice or procedural fairness, if it was otherwise arguable, would disappear as it could be cured at the hearing of the appeal. 20. In the event that the Tribunal is wrong about the prospects of success, or arguable case test, the balance of convenience issue is nevertheless addressed. 21. It is accepted that there is a difference between a suspension and a disqualification. Here the issue is whether a disqualification should be stayed. As the stewards inquiry has been finalised the wording of rule 183 would seem to indicate that the suspension has concluded. There is no express rule or provision in the Racing Appeals Tribunal Act or its Regulation which would seem to provide continuity of that suspension once the inquiry was concluded. The appeal does not seem to reactivate it. It is noted that the parties are of a different opinion on the submissions, or they have not turned their mind to this issue. If a stay was to be granted the rule 183 suspension could nevertheless be reinstated. There is no need to consider the arguments whether a heavier penalty is possible. This stay is certainly not decided on any possibility that a heavier penalty is possible. The appellant s submission that there is no prejudice to the industry if a stay is granted is rejected. Integrity of the industry requires that a trainer found to have breached the prohibited substance rules should not enjoy the privilege of a licence or the partial privileges if only suspended. It is accepted that a stay would preserve the status quo but that should only apply if all the other tests are met. 22. The Tribunal is more persuaded by the arguments for the respondent. In particular, the fact that the stewards were not restrained by an injunction from the Court of Appeal especially in circumstances where an injunction was refused by the Supreme Court very proximately to the hearing and in that court s knowledge that the hearing was imminent. The express warnings of the consequences of nonappearance could not have been clearer, especially in circumstances where there is no evidence that any undertaking to the contrary was relied upon. The consequences of the finalisation of the stewards hearing took place in circumstances of the appellant s own making and he now cannot complain about that. The refusal of the stay after an adverse finding on a presentation with a prohibited substance and the imposition of a period of disqualification is not an unusual outcome in those circumstances. It is the usual outcome of a stay application in the circumstances. For the reasons expressed there are no facts in this application which would distinguish it from numerous other similar stay applications and outcomes. 23. There is a further factor in this case to distinguish it from the co-appellant s application. That is the fact that the stewards in fact determined the 190 test applying both an absolute and strict liability consideration. This eliminates the arguments to the effect that the determination of this appeal should await the outcome in the Court of Appeal or that this stay should have a different outcome. 5
24. On the balance of convenience argument the appellant fails to satisfy the Tribunal that it is an appropriate case to grant a stay. 25. In those circumstances the appellant has failed to demonstrate an appropriate case on the prospects of success, or the arguable case, test and has failed to demonstrate that the balance of convenience, should it otherwise have to be considered, should be exercised in his favour. 26. The application for a stay of the decision of the stewards is refused. DB Armati Racing Appeals Tribunal 30 March 2015 6