Stampalia v The Racing Penalties Appeal Tribunal of Western Australia & Ors P19/2000 [2000] HCATrans 657 (27 October 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P19 of 2000

B e t w e e n -

TONIA ROSE STAMPALIA

Applicant

and

THE RACING PENALTIES APPEAL TRIBUNAL OF WESTERN AUSTRALIA

First Respondent

WILLIAM JAMES DELANEY, WAYNE EDWARD SULLIVAN, REGINALD JOHN DENNEY and TERENCE COLIN ROLFE

Second Respondent

Application for special leave to appeal

GUMMOW J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON FRIDAY, 27 OCTOBER 2000, AT 12.40 PM

Copyright in the High Court of Australia

______________________

MR S. OWEN-CONWAY, QC: If it please your Honours, in this matter I appear with my learned friend, MR J.C. HAMMOND, I appear for the applicant. (instructed by Hammond Worthington)

MR R.J. DAVIES, QC: If it please the Court, I appear with my learned friend, MR D. CHEW, for the second respondent. (instructed by Minter Ellison)

GUMMOW J: The Court holds a certificate from the Deputy Registrar that the first respondent has entered an appearance in this matter, but has indicated that it does not wish to be represented at the hearing today and will abide by the decision of the Court on the leave application. Yes, Mr Owen-Conway.

MR OWEN-CONWAY: Thank you, your Honours. There are two principal submissions we make this afternoon. The first is that the applicant was entitled to be represented by counsel of her choice throughout the inquiry before the stewards. It is our submission that here the legislative framework by necessary implication conferred a right to unrestricted legal representation at the stewards' inquiry. Alternatively, we submit that the requirements of natural justice compelled the same conclusion. The rules of trotting do not prescribe the manner in which a stewards' inquiry is to be held, but nowhere in the provisions of the Trotting Act, the by-laws made pursuant to the Act or the rules is legal representation before a stewards' inquiry precluded. On the contrary, it is clear from 38(b), which is referred to in the court's judgment, that the chairman of stewards is in complete control of the inquiry and does have the power to allow a person in the applicant's position to be legally represented. Although the stewards were in complete control of the inquiry, they were required by rule 38(d) to commit to writing or record in such other manner as the controlling body shall think fit the evidence taken before them.

The evidence in this case was transcribed and the evidence taken at the inquiry and the decision of the stewards then had to be certified by the chairman of the stewards as being correct, and thereafter forwarded to the controlling body, the WATA, and that there was a right of appeal from a decision of the stewards to the first respondent under the Racing Penalty Appeals Act of 1990. In our submission, where

the enabling legislation, expressly or impliedly, confers a right to an oral hearing in the applicant, then legal representation is of right. This proposition was decided by the High Court in Ex parte Kay. In that case a Commonwealth public - - -

GUMMOW J: What is the citation of that?

MR OWEN-CONWAY: That is [1916] ArgusLawRp 94; (1916) 22 CLR 183 at 185 and 186. Your Honours, in that case the Commonwealth Public Service Board was dealing with an appeal from a public servant who had lost certain seniority and she appealed to the Public Service Board under section 50 of the Act.

GUMMOW J: Have we been supplied with this?

CALLINAN J: The case.

GUMMOW J: The case. If not, why not? And if not, why should you be reading from it?

MR OWEN-CONWAY: Well, I was not proposing to read from the judgment, your Honour; merely simply tell you what the facts were. This is a matter which - - -

GUMMOW J: But you say it is an earlier decision of this Court directly in point.

MR OWEN-CONWAY: Yes. I do not intend to read from the judgment, merely tell your Honours what the case is authority for. This is a matter which was the subject of some discussion with the Registrar prior to the commencement of this case and it was a matter of some discussion - - -

CALLINAN J: We really need to read the case before you can talk about it. What is the citation?

MR OWEN-CONWAY: I have got the case here, your Honours; I can hand it up, I have got copies of the case.

CALLINAN J: 22 CLR. What page?

MR OWEN-CONWAY: It is [1916] ArgusLawRp 94; (1916) 22 CLR 183 at 185 and 186.

GUMMOW J: Do you have the copies here?

MR OWEN-CONWAY: Yes.

CALLINAN J: These things have to be considered in a statutory context.

MR OWEN-CONWAY: Yes.

CALLINAN J: We need to know what each statute says.

MR OWEN-CONWAY: Yes, absolutely, I accept that entirely. Perhaps I can tell your Honours a bit about the statutory framework here before - - -

GUMMOW J: I think it would be a more useful exercise of your time if another course is pursued. Do you have any other concealed cases there?

MR OWEN-CONWAY: Well, with respect, your Honour, I do not want to quibble with your Honour, but they are not, with respect, concealed. They have been - - -

GUMMOW J: Just tell me if you have any other cases you want to refer to which we have not been supplied copies of and we will then take efforts to look at them over the lunchtime so your client receives justice in this matter. Now, do you have any other cases?

MR OWEN-CONWAY: R v City of Melbourne; Ex parte Whyte.

GUMMOW J: What is the citation of that?

MR OWEN-CONWAY: That is [1949] VicLawRp 48; (1949) VLR 257 at 266 and 267. That is a decision that was referred to by Justice Owen upon which - - -

GUMMOW J: Just give me the citations at the moment.

MR OWEN-CONWAY: (1949) VLR.

GUMMOW J: I have got that. Next case?

CALLINAN J: Any other cases?

MR OWEN-CONWAY: Those are the two cases that - - -

GUMMOW J: Very well.

CALLINAN J: It is in your interest. You only have 20 minutes, and if we have to ask you all these details and we have to read the case now - - -

MR OWEN-CONWAY: I did not - - -

CALLINAN J: Listen to me; I am trying to help you. You are just wasting your own time.

MR OWEN-CONWAY: Well, can I say this, your Honour - - -

GUMMOW J: No, you cannot. We will adjourn until 2 pm and your time will start again at 2 pm.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.05 PM:

GUMMOW J: Yes, Mr Owen-Conway.

MR OWEN-CONWAY: May it please your Honours. The relevant statutory framework is set out in the reasons for decision of Justice Owen between pages 102 and 104 of the application book commencing at line 7 on page 102 through to the first paragraph on 104.

GUMMOW J: Now, did this give a right of appearance to your client?

MR OWEN-CONWAY: Not expressly, but my submission today is twofold: firstly, that it is implicit in the statutory framework that she had a right of representation - - -

GUMMOW J: To appear personally?

MR OWEN-CONWAY: Yes, because it is implicit that she has a right to appear personally.

GUMMOW J: Where would we see that?

MR OWEN-CONWAY: Well, by reason of these matters: firstly, the general power includes - this is in rule 11 - a power to impose punishments, control offensive behaviour, there is a power to institute inquiries, there is a power to suspend or revoke licences, the chairman is in complete control of the inquiry, evidence at the inquiry must be recorded in writing, fines can be imposed of up to $20,000. In this case, as in most cases, she was required to attend before the stewards' inquiry by letter addressed to her. Rule 495 provides that:

Any person who.....

(b) fails to observe a direction of the Stewards given in the exercise of those powers,

commits an offence.

CALLINAN J: Where do I find that one, I am sorry?

MR OWEN-CONWAY: That is in my friend's book of authorities.

CALLINAN J: And can I see the letter? Is it in the book?

MR OWEN-CONWAY: No, the letter is not before you. It is common cause that she was required to attend.

CALLINAN J: Where do I find them, what page do I find the rules that you were just referring to? It is in the respondent's book, is it?

MR OWEN-CONWAY: They are set out in Justice Owen's reasons for decision between page 102 and 104 of the application book.

CALLINAN J: But you see rule 25 at page 103:

The decisions of the Stewards shall.....be final.

Can that include a decision as to representation or not?

MR OWEN-CONWAY: Well, with respect, no, because if as a matter implicitly required by the statutory framework she is permitted to attend herself personally throughout the inquiry - and I might say - - -

CALLINAN J: Mr Owen-Conway, they always used to make a clear distinction in these matters in practice - I do not know whether they do now - of saying, "We've conducted our inquiry and we've reached a degree of prima facia satisfaction, as it were, and we now charge you". Is that what happened here?

MR OWEN-CONWAY: Yes. I will tell your Honours what happened here. The inquiry - perhaps I should tell you exactly what - - -

CALLINAN J: There may be - - -

MR OWEN-CONWAY: I was going to come on to it.

CALLINAN J: Well, let me just finish. There may be a difference between what should or should not happen up until the inquiry stage and what should happen thereafter.

MR OWEN-CONWAY: Yes. In this particular case, as you would have seen from the papers, Mr Hammond was permitted to appear to represent her for a limited purpose only on the fifth, sixth and seventh hearing days - - -

CALLINAN J: So after the charge - is that after the charge?

MR OWEN-CONWAY: No, up to the point when he had finished his cross-examination of the stewards' expert witnesses, of which there were nine in total, and for the applicant there were six, and the evidence was extremely technical, complex and difficult. At the end of that process of cross-examination, on the seventh hearing day, Mr Hammond had to leave the hearing room and she was then charged in his absence and in the absence of any opportunity through her lawyer to address the issue of whether she should have been charged or not. Thereafter there were two further hearing days, the eighth and ninth hearing day, when there was no evidence taken of any kind from a lay person - - -

GUMMOW J: This is after the charge?

MR OWEN-CONWAY: After the charge.

CALLINAN J: And the evidence in the inquiry became evidence in the hearing of the charge, is that right?

MR OWEN-CONWAY: That is correct, and the very same stewards who had sat right throughout from the third hearing day, because after the second hearing day, I think, Mr Rolfe retired through ill health and a new panel of stewards was empanelled comprising Messrs Delaney, Sullivan and Denney and the evidence for the first two days was taken as being the evidence before the hearing and it continued on that basis. So after she was charged, she was not permitted legal representation of any kind, whether for the purpose of making submissions on the evidence, whether for the purpose of making submissions on the technical evidence, whether for the purpose of dealing with the question of whether the charge had been properly laid or whether, indeed, she should be penalised and, if so, in what form.

CALLINAN J: Is there a rule which deals with the actual charging stage of the process?

MR OWEN-CONWAY: No, not specifically. What happened was this, that after the experts had been examined or cross-examined by Mr Hammond on the seventh hearing day, he was then excluded from the hearing room and straight away the stewards said, "All right, we're going to charge you", and they charged her with an offence which was not the actual administration of a drug; they relied upon a deeming provision that because the TCO level had shown an elevated result, she was deemed to have presented the horse to race in circumstances in which she was deemed to have committed an offence, unless she could provide evidence that she had taken all reasonable steps to prevent the administration of a fictional drug. They did not charge her with the administration of an actual drug.

Notwithstanding that, she had admitted administering 120 millilitres of a feed substance called Enzactiv Green four hours before the race and there was uncontroverted evidence that that was a feed supplement which was represented by the manufacturers on the labels as being safe to administer to horses in all doses, and there was evidence that the stewards had been aware of her practice in doing this on previous occasions. They could have charged her with a specific administration, but they did not and they relied upon the deeming provision. And there were complex submissions that should have been put and would have been put going to that issue had Mr Hammond been present on what we would respectfully submit were the critical parts of the hearing.

Justice Owen, with respect to his Honour and to his colleagues in the Full Court, fell into error because he said he was going to adopt the approach advocated in Ex parte Whyte, and he said that at page 105. That was in error because his Honour said he was going to adopt that approach without finding that the applicant was not entitled herself to appear before the stewards' inquiry.

GUMMOW J: At least at the stage of charge.

MR OWEN-CONWAY: Yes, at least at the stage of charge, and although Justice Owen noted that although the rules, he said, do not enshrine a right of personal attendance, he should not be taken, he said, as suggesting that a denial of a right of personal attendance would be in accord with the rules of natural justice. So what his Honour there is saying, in effect, is recognising the fact that the rules of natural justice do require the stewards to afford a person in the applicant's position a right of personal attendance. This proposition has never been doubted by the respondents, with respect, and there was a concession at all times that the rules of natural justice applied generally to the stewards' inquiry.

GUMMOW J: Can I just read you this sentence from a judgment of Mr Justice Ellicott in 61 FLR 385, the case of Frost:

At common law, a person who has a statutory right to appear before a non-judicial tribunal may do so by an agent including solicitor or counsel unless the right is taken away.

Now, the first question then is: is there, on the construction of these rules, expressly or implicitly, a right to appear? That is a question of construction.

MR OWEN-CONWAY: Yes, correct.

GUMMOW J: And if the answer to that is no, nevertheless, in particular circumstances, the rules of natural justice may require - - -

MR OWEN-CONWAY: Yes, that is our submission.

CALLINAN J: But, Mr Owen-Conway, there may be a real distinction between the inquiry stage and the charging stage.

MR OWEN-CONWAY: Indeed.

CALLINAN J: I mean, most inquiries, Royal Commissions, commissions of inquiry, there is not an automatic right of appearance, or very often there is not. Leave has to be obtained.

MR OWEN-CONWAY: Yes.

CALLINAN J: And the inquisitorial process may well involve asking questions in order to get information in respect of which it may not be in the interests of those conducting the inquiry to have the person who turns out to be charged present. Do you understand what I mean?

MR OWEN-CONWAY: I do indeed.

CALLINAN J: Police have to make inquiries discreetly and in secret often from the accused person, before the person becomes the accused.

MR OWEN-CONWAY: Yes, it was a point that I addressed in my submissions to the Full Court and I sought to urge that there was an important distinction between the time before the charge was laid and post the time the charge was laid and it is without doubt that she was totally without representation after the charge was laid, which we said was the most critical time for her. And the way that his Honour dealt with this - this is at appeal book page 107 - he said this:

once the technical issues were out of the way, so to speak, the inquiry took on a different tenor. The record does not disclose that there were any difficult or complex factual or legal issues that arose in relation to the way the horse was prepared for the race, stable security and so on.

But, with respect to him, the technical issues were never out of the way. In fact, they underpinned the applicant's case. They were live at all times, including the context in which the horse was prepared for the race, and there was no point at which legal representation, or the absence of it, was more or less critical, with the possible exception - and this was our submission to his Honour - of the period after which she was charged, when it was of particular importance that she be represented.

It is curious that the Full Court perhaps held that Mr Hammond was entitled to represent her at the inquiry albeit for the limited purpose of questioning expert witnesses - we said after the damage had been done, because a very poor impression had been created in the minds of the chairman by this stage. By the time that Mr Hammond appeared, he had talked about, "Is this toing and froing going to continue like this? This smacks of a bandaid defence", and so on.

CALLINAN J: When your client's experts excluded - during the inquiry stage or after the charge?

MR OWEN-CONWAY: They were excluded - there were three times it happened during the inquiry stage. On each occasion she was unrepresented. The experts were called in. There were, I think, Dr Casey and Dr McGregor and another one of our expert witnesses. They were permitted to give their evidence, but they were not permitted to stay with her and assist her in asking questions of the - - -

CALLINAN J: I am looking at paragraph 38 on page 107.

MR OWEN-CONWAY: Yes.

CALLINAN J: I really wanted an answer to that. Was the exclusion of your client's expert witnesses, did that take place before or after the charge was laid?

MR OWEN-CONWAY: Before, but, of course, there was no evidence adduced after the charge was laid; no additional evidence was adduced. The stewards just continued as if they were apprised of all the relevant material before them - - -

CALLINAN J: Was it Mr Hammond who was representing the - - -

MR OWEN-CONWAY: Yes.

CALLINAN J: Did Mr Hammond ask for any of those experts to be recalled for cross-examination?

MR OWEN-CONWAY: He was provided with the opportunity on the fifth, sixth and seventh hearing day of cross-examining the expert witnesses who had previously given evidence. There were a number of problems with this. If your Honours will permit me, I can summarise very quickly what happened at the inquiry. On the first four hearing days she was denied legal representation. She was in a position where she had to leave the hearing room and speak to her lawyer, who was present for some of that time, outside, and that procedure led the chairman to become quite frustrated and say words to the effect, "Is this toing and froing going to continue on like this?" Now, I should say that the issues that were being ventilated were highly technical and complex and they - - -

GUMMOW J: Has a transcript been kept?

MR OWEN-CONWAY: A transcript was kept, yes, absolutely, and was certified as being correct. The inquisitorial nature of the proceedings went like this, that the stewards, and the stewards' experts who were present in the hearing room, would sit around the table and they would bounce questions off the applicant. So she was there by herself, sometimes there were the stewards and two of three of the stewards' experts, sitting around the table and bouncing questions off her and she would have to say, "Well, I'll have to go and ask Mr Hammond", and she would leave the hearing room. And this was a procedure which the chairman himself suggested - - -

CALLINAN J: And she would have been liable to a penalty if she had not been there.

MR OWEN-CONWAY: Up to $20,000. Now, as I say, the technical questions concerned inter alia, the accuracy of the testing procedure, the accuracy of the sample, its integrity, variations in the TCO levels in horses, are naturally occurring factors which may impact upon TCO levels and other factors, including the effect of respiratory problems on TCO levels. She left school when she was 14, 35 at the time of the hearing, commenced training horses at age 16, no other skills or work experience, no prior experience with stewards' inquiries.

GUMMOW J: So, one of your complaints then, at the time of charge, even though no more evidence came in, it was a question of assisting the stewards to understand the technical issues that had been thrown up by material they now had before them.

MR OWEN-CONWAY: Absolutely.

GUMMOW J: And your client, you say, was manifestly not well equipped to do that?

MR OWEN-CONWAY: No. Well, she said that she was not repeatedly, and it was put by her solicitor that she was not. She became tearful at times, she broke down - - -

CALLINAN J: Well, we understand; we can understand the force of that.

MR OWEN-CONWAY: Now, to answer Justice Callinan's question, on 5 May the applicant wanted her expert, his name was Harry Masters, to be present, whilst the stewards' expert, Mr Russo, asked some questions, and the chairman said, "No, that's not the way it works". But Mr Russo and Dr Rieusset were present when Harry Masters gave his evidence. The applicant then had to ask Mr Russo some questions, without the benefit of a lawyer being present and all she could do was hand out a prepared list of questions to Mr Russo and Dr Rieusset, she did not understand the significance of many of them, did not understand the answers, could not follow up the questions. On 9 June Dr Rieusset and Mr Russo were in the hearing room throughout the day. Dr Casey gave evidence. His evidence was of particular importance for the applicant. The applicant asked questions of Dr Casey and then Mr Russo and Dr Rieusset joined in and asked questions of their own on behalf of the stewards. But when Dr Casey had concluded his evidence, the stewards refused to allow him to remain in the hearing room or to permit him to cross-examine either of those gentlemen, and we say that was particularly unfair and it was criticised by the Full Court which said it was a dangerous way of proceeding and ought to have been avoided.

On 11 August, Mr Russo was present for the whole day and the applicant handed up a lever arch file that day containing a statutory declaration from one of her witnesses, Dr Gales, and some learned journals about TCO, and the chairman then embarked upon a process of cross-examining her about the significance of this material in the absence of Mr Hammond. She said that she had little or no understanding of them and, at that point, the chairman said, "Well, this smacks of a bandaid defence". So, if the applicant had had legal representation at this time, the chairman would have had the benefit of submissions addressed properly upon those materials. By the time Mr Hammond was permitted into the inquiry, which was on 31 August for the first time following a successful appeal, by that time clearly an unfavourable impression had been formed in the minds of the stewards, because he was asking questions of Professor Rose about some blood tests carried out on another horse called "Catapult" and blood tests carried out, which were arranged through.....on the applicant's horse. These were important tests which went to the core of the applicant's defence and the chairman said that the stewards had considerable reservations about those tests and Mr Hammond is saying, "Well, are you treating these tests with any seriousness?", and the chairman said, "We're treating them with considerable reservation".

So, clearly, we would submit, that this perception of the applicant's case must have been formed prior to 31 August when she was unrepresented. So it was not an answer, as this Full Court seemed to think it was, to say Mr Hammond came back on the sixth and seventh hearing days to fix up the problems. Those problems were not then capable of being remedied and, most significantly, the Full Court ignored entirely the importance of the fact, we would say, that after she was charged Mr Hammond was excluded completely.

My time is running out rapidly. Perhaps I should move on briefly to the second ground, the reasonable apprehension of bias point. On that point our submission simply is that the Full Court fell into error in not holding that an objective observer would have concluded that the stewards had made positive findings on material issues when on 12 October they charged her. We say that because they had acted as inquisitors, prosecutors, judges and jury. They established the rules and it was incompatible for the same stewards, who sat and listened to the evidence and determined that there was a basis to charge her, to go on and determine the outcome. We say not only was that incompatible, it was not required by any provision in the rules that they do that, and it is not in accordance with the principle of natural justice to have as present members of an inquiry those who have supported and prosecuted a charge if an objective observer would conclude that the stewards had reached their findings on material issues before the matter was adjudicated upon.

The only exceptions that the cases seem to indicate to this rule are where a person is relieved from the operation of that rule by statute; and second, where there is a necessity for him to act. In this case we say it would have been a simple matter for a new panel of stewards to have been empanelled and to take the transcript and deal with the matter properly at that point. In short, it was simply not necessary, desirable or in accordance with the principles of natural justice that those same stewards continued to hear the charge, particularly when there was no additional evidence led of any kind.

And they did not sit and hear the evidence in a passive manner; they were inquisitors, they were interrogators. They were, in our submission, so directly and personally involved in the matters under consideration that the reasonable inference is that they were, in substance, accusers. This proposition, of course, depends entirely upon the fulcrum point that the reasonable apprehension of bias test has application to a tribunal of this kind. In our written submissions we have submitted that, although it is a tribunal that is not a statutory body, it is nonetheless a hybrid body because it owes its existence to a power derived from a statute contained within the by-law and, although it is consensual in the sense that it is not directly a statutory body, it is not consensual in any realistic sense of the word. Those are my submissions, your Honours.

GUMMOW J: Mr Davies, we do not need to hear you on that ground concerning apprehended bias, but we would like to hear you on the other grounds.

CALLINAN J: Just before you begin, I wonder if you can answer a couple of questions for me. Rule 24 on pages 102 and 103 is a fairly standard rule for jockey clubs throughout Australia, is it not?

MR DAVIES: They are the Australian rules.

CALLINAN J: So they are identical in every State?

MR DAVIES: More or less.

CALLINAN J: More or less, yes. And is there a rule that obliges a person such as the applicant to answer any questions put to her in an inquiry?

MR DAVIES: Not in terms.

CALLINAN J: But is there any consequence that would attach to a refusal to co-operate?

MR DAVIES: There can be, yes.

CALLINAN J: Well, have we got that rule?

MR DAVIES: It has not been included, but there is a - - -

CALLINAN J: I think we should have that rule.

GUMMOW J: What about 495?

Any person who.....

(b) fails to observe a direction - - -

CALLINAN J: Is that the rule you were thinking of? It is in your material. Or is there a more explicit rule than that?

MR DAVIES: There is no more explicit rule.

CALLINAN J: But you say it would be covered by that rule; there would be a direction to answer a question?

MR DAVIES: It has always been taken that part of the inquiry process - - -

CALLINAN J: I could never understand why the jockey clubs have had this rule 24; why there are not rules which divide the processes. It always seems highly artificial when the stewards hear all of this evidence and then they constitute themselves into a quasi-judicial tribunal and say, "We're charging you now, defend yourself", in effect. It is a very artificial process and the rules should not be in this form, in my view; it is an invitation to problems of the kind that exist here.

MR DAVIES: It is, your Honour, but it has been supported as a procedure each and every time it has gone to superior courts.

CALLINAN J: You had a great deal of luck in the superior courts; I am familiar with a lot of the decisions.

MR DAVIES: Well, do not sheet them home to me, your Honour, with respect. If the Court please. If the Court were to listen to the selective materials that my learned friend has brought to it in relation to the legal representation point and the course that the proceedings took, it would readily be misled into error. In our submission, the issues were fairly and squarely appreciated by their Honours in the Full Court. It was fairly and squarely appreciated by them that what was involved was a value assessment of the course that the proceedings took and a value judgment unique to this case upon whether there had been such a departure from the requirements of procedural fairness - - -

GUMMOW J: No, but that is not the only thing. Do you say that after charge the person charged has no right to be there? I am not talking about the inquiry stage.

MR DAVIES: No, your Honour, and it would not be contemplated, and has not, in my experience ever been contemplated. It follows as a matter of course that a person then fairly and squarely the subject either of a formal charge or, as would be sufficient, an informal indication that "You understand what we are looking at is the serious matter of rule so-and-so".

GUMMOW J: We are probably at cross purposes. Right to be present on a proper construction of this rule structure?

MR DAVIES: No, your Honour. No such right appears, but one would rapidly be in contravention of rules of procedural fairness if one proceeded in her absence. So the two matters are distinct.

CALLINAN J: The evidence that has been given at the inquiry stage is not rehearsed in full, is it, after the charge?

MR DAVIES: No, your Honour, because of the nature of the Tribunal and the expedition involved in not having to - - -

CALLINAN J: It is difficult to understand why your clients would allow the lay applicant to cross-examine at the inquiry stage. That happened, did it not; she was given a right to cross-examine?

MR DAVIES: Yes, your Honour.

CALLINAN J: The cross-examination by qualified people on her behalf would be excluded. What is the justification for that?

MR DAVIES: Because it is an inquiry stage, if your Honour please.

CALLINAN J: Well, why let her cross-examine?

MR DAVIES: I think the real answer, with respect, your Honour, is this, that if they were to divide it into two parts, they could not, as my friend suggests, then have another panel look at the transcript and decide the matter when questions of credibility are fundamental to it and when requirements properly to inform the person then under scrutiny of the material that has been put forward against her. So what they do, and in my submission sensibly and rightly, is from the time that the finger points, which is normally before the commencement of any inquiry when you are dealing with a positive swab and an examination of the conduct of the trainer, they have the person at whom the finger points present from the start. So that each and every piece of evidence that they obtain is led in the form of evidence before her, so that when later they come to adjudicate upon the matter, she has been properly, in order to meet the requirements of procedural fairness, adverted to and indeed heard all of the material that is put against her and had the opportunity to cross-examine it as it comes out. So the reason, to answer your Honour's question directly that it is done that way, is so that you do not then have to have witnesses come forward and repeat it all and then give the opportunity to cross-examine if it is material that is going to be used against you.

CALLINAN J: I can see why that would be expedient, I can see why that might be so, but it is a little hard to understand why she should be allowed to cross-examine and not a qualified person on her behalf. I can understand now why you would allow her to be present, but if the person at whom the finger is pointing can be there, then why not somebody on her behalf?

MR DAVIES: For the reasons that his Honour Justice Owen adverted to in his judgment, that then the stewards may well see the need to have legal representation of their interests in the matter and have lawyers doing their examining of witnesses, particularly difficult expert witnesses, and the proceedings would rapidly lose their streamlined nature, which is what they are meant to be, and what the rules, set out in the judgment, envisaged that they will be.

GUMMOW J: How many days did this inquiry go?

MR DAVIES: Seven altogether, I think. His Honour Justice Owen points out that he, as a reviewing judge, had the task - your Honour spoke of the inquiry, not the final conclusion of the matter - his Honour spoke of the task that he had, because of the way the matter was put before the Full Court of reviewing 600 pages of materials. Now, what is done here today, on a special leave application to this Court, is no more than an attempt on selective material, and snippets only of the entire proceedings, to ask this Court to grant special leave and to ask this Court, in due course, to revisit the merits of this particular case because, in our submission, the Full Court correctly adverted to the principles involved. It correctly reviewed the statutory framework and said there is no right to legal representation enshrined, but the question for us is: was there, in the partial absence of it, such a breach of rules of procedural fairness as to vitiate the decision?

Their Honours then appreciated that what they needed to do, as distinct from what my friend has done today, was to get down and review the whole of the proceedings where the various things fitted, and the judgment of his Honour Justice Owen found this to be the course that occurred. The stewards commenced their proceedings. One of the witnesses was a Dr Rieusset, who is the club veterinarian, who gave evidence that the substance in question is a drug and so on. Another was the analyst, who gave evidence as to the finding of the carbon dioxide in the substance, and then the applicant raised the question of whether this is one of those rare horses, through her experts, that endogenously produced this result of its own accord without anything having been administered to it, and the highly complex area of technical evidence area was in that regard.

CALLINAN J: Justice Owen had some misgivings about the course though, at paragraph 41 page 108.

MR DAVIES: That aspect, your Honour, which is limited to the first two days of the inquiry, properly so-called. But what his Honour then went on to find, and no doubt why his Honour found that not to have vitiated the proceedings, and it has not been mentioned by my learned friend, was that the applicant then went to the Racing Penalties Appeals Tribunal and an acting chairman there ordered that the appellant be allowed to have all of the expert evidence cross-examined by counsel on her behalf. The Tribunal, in a judgment of the matter, decided that that was the difficult area and that thereafter occurred and, as his Honour Justice Owen found in his review of the course that the matter took, each and every one of the witnesses who had given evidence prior to that stage was recalled not once in some cases, but two and three times, for cross-examination by counsel for the applicant.

CALLINAN J: And was the applicant allowed to adduce evidence if she wanted to again at that stage before the Tribunal?

MR DAVIES: Yes. It proceeds with formality overlaid by informality, when one reads the transcript, and the evidence comes in when the question is asked in the running, "Well do you agree with that?", of the applicant, and the answer is in the negative or the affirmative, and so on.

CALLINAN J: This is before the Tribunal? I am asking you about the Tribunal now - - -

MR DAVIES: No, before the stewards.

CALLINAN J: So that the experts were recalled before the Tribunal.

MR DAVIES: No, the experts were recalled before the stewards.

CALLINAN J: But you said the Tribunal before.

MR DAVIES: Sorry.

CALLINAN J: It was before the stewards?

MR DAVIES: It was before the stewards.

CALLINAN J: When the Tribunal considered the matter, there is an appeal from the stewards to the Tribunal, is that right?

MR DAVIES: Yes.

CALLINAN J: And the Tribunal just considered the matter on the record, is that right, or was evidence called on the record?

MR DAVIES: Yes, and I have misled your Honour. The first appeal to the Tribunal was on an interlocutory matter of the granting of the right to legal representation in relation to cross-examination of the expert materials. That occurred after the first two days of the proceedings. Thereafter, in the inquiry before the stewards in relation to the difficult expert matters, the applicant was represented by counsel in full and each and every one of the experts was recalled and there was no situation where anyone had given evidence without being cross-examined by counsel.

It is true that the stewards, adhering to the decision of the chairman of the Appeals Tribunal, then excluded counsel at the time that the charge was laid, but his Honour Justice Owen reviewed the 40 pages of material involved and said that nothing of significance occurred.

GUMMOW J: Where does he say that?

CALLINAN J: I think you are probably referring to about paragraphs 32 or 33 until 37 but I would not regard those, if they are the ones, as necessarily - - -

MR DAVIES: No, it is on page 113, if your Honour please, where his Honour has finished reviewing the fact that there were from pages 678 to 1160 of the application book and that he had gone through the tedious - - -

CALLINAN J: It starts at paragraph 53 on page 112.

MR DAVIES: Yes, and continues on from there. His Honour, at paragraph 57, for example, deals in detail with what occurred once the charge had been laid. Importantly - and it has not been adverted to by my friend - what occurred after the charge had been laid was that the applicant either tendered or read into the record detailed submissions in relation to the charge, which had been prepared by her solicitor.

CALLINAN J: Did you argue the appeal in the Full Court?

MR DAVIES: Yes, your Honour.

CALLINAN J: Do you know what the recent pronouncements to the contrary referred to at the end of paragraph 53 are?

MR DAVIES: I deliberately did not direct my mind to that, if your Honour please.

CALLINAN J: No.

MR DAVIES: That is something that is beyond me, your Honour. And his Honour continued at pages 113 and through 114 and his Honour was there dealing with the course of events in the context of the allegation of prejudgment, the matter that I am not required to address the court on. So, to continue with the sequence, to the extent that there was a problem that his Honour adverted to, with the experts not being allowed to remain present, it was rectified, and his Honour found that, in effect, to be so by the subsequence course of events. By the time the charging stage was reached, all of the expert evidence had been the subject of cross-examination. The charge was then laid and there was no further material and the matter was adjourned for the stewards to consider the voluminous written submissions as to the charge that were prepared by her lawyer.

My learned friend in a way, with respect, that could mislead, refers to the matter of exclusion of evidence in relation to "Catapult". The "Catapult" matter, as the Full Court was told and found, was a totally collateral matter in relation to another drug case in Sydney that one of the experts was involved in and had been invited to put material forward and it had not been forthcoming. It can be made to sound as though the stewards excluded something. In fact, as the Full Court found, it was quite collateral. But, importantly, all of the emotive matters that my learned friend put before this Court in a selective way were aired in full before the Full Court and were responded to in full before the Full Court, with all of the relevant materials upon which to base a judgment as to whether there had been a sufficient departure from the rules of procedural fairness before the court and, in due course, totally examined by Justice Owen, on behalf of the court obviously.

He found that when each aspect of it was taken in the overall picture, as a matter of judgment, no sufficient departure from rules of procedure fairness as to warrant the vitiation of the decision. Now, in our respectful submission, to come before this Court seeking special leave when no error of approach or principle has been demonstrated in the judgment of the Full Court, to come before this Court seeking a rehash of the value judgment that their Honours in the Full Court made, is an untenable proposition.

Your Honour asked me to deal with the grounds of appeal other than ground 3. There was, of course, the first ground in relation to the use of the deeming provision in relation to the charge. Your Honours will find - - -

GUMMOW J: No, I was looking at the notice of appeal, the draft notice of appeal to this Court.

MR DAVIES: There are three in the application and only two in the draft notice of appeal, your Honour.

GUMMOW J: I am looking at page 125.

MR DAVIES: Yes, and if your Honour - - -

GUMMOW J: It seems to me ground 2 may have a number of grounds bound up in it, that is why I was directing attention to it. I was excluding from consideration what appears as paragraph 3.

MR DAVIES: It is the application for special leave at page 121, if your Honour please; it has three grounds in it, so I am really in your Honour's hands as to whether you wish me to deal with ground 1 - - -

GUMMOW J: No, I wish you to proceed as I indicated before.

MR DAVIES: Well I have done, in that respect, your Honour.

GUMMOW J: I think you have done so. Yes, thank you, Mr Davies. Yes, Mr Owen-Conway.

MR OWEN-CONWAY: Thank you, your Honour. Justice Owen, of course, said that he believed that the decision of the Tribunal in allowing Mr Hammond into the hearing room on the fifth, sixth and seventh days for the limited purpose of questioning expert witnesses, was a correct decision, conditioned by the requirements of natural justice. In our respectful submission, once that entitlement was recognised, then there is no principle of law which can effectively operate to restrict his right to participate throughout the inquiry. If it were otherwise it would make it impossible for a determination to be made of whether any particular piece of evidence is more important than another, where technical evidence is concerned, whether it is more or less technical or more or less significant at the end of the day.

As to the events of the final two days, post the charge, what occurred was this. Mr Hammond was outside the inquiry room at all times; letters from Mr Hammond were read into evidence, one of which complained about the decision to charge the applicant before giving him the opportunity to address as to whether a charge should have been laid or not on the evidence; then some other letters were read into the transcript; Mr Hammond, in his letter, requested that Mr Rolfe, one of the stewards, attend the inquiry for the purpose of being questioned as to the way in which the sample was transported to the laboratory; the manner in which it was stored pending transportation, and other matters pertaining thereto; and, in the absence of Mr Hammond, the stewards questioned the applicant why she considered Mr Rolfe to be an important witness. That question should have been put to Mr Hammond; and the chairman then went on to effectively adduce evidence, effectively adduce what he believed Mr Rolfe's evidence would be about that issue.

The only other thing that happened that day was that the applicant handed up an article, there were no witnesses called by the stewards, and they then adjourned the inquiry calling for her defence. That was on 27 October. Then, on 3 November, again she was unrepresented. Further correspondence with Mr Hammond was read into the transcript. He again asked to represent his client at this stage. Again, his request was refused and then the stewards then gave their reasons for decision, convicted the applicant and disqualified her for a period of 12 months.

Now we say, throughout those last two days it was absolutely essential, critical, to her case that she have a lawyer represent her in order that proper submissions could have been addressed to the stewards.

GUMMOW J: We will take a short adjournment.

AT 2.49 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.51 PM:

GUMMOW J: We do not wish to be taken as endorsing the procedures adopted by the stewards at the inquiry under Rule 24 in this matter, nor would we encourage the stewards to assume that legal representation is a privilege to be afforded only in rare or unusual cases. However, in the circumstances of this particular matter the applicant has insufficient prospects of success to warrant a grant of special leave. Accordingly, special leave is refused with costs.

AT 2.51 PM THE MATTER WAS CONCLUDED