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Kavanagh v Racing Victoria Limited (Review and Regulation) [2017] VCAT 386 (17 March 2017)

Last Updated: 17 March 2017

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ADMINISTRATIVE DIVISION

REVIEW AND REGULATION LIST

VCAT reference no: Z34/2016; Z35/2016
CATCHWORDS
Racing – Rules of Racing – Prohibited substances – Cobalt threshold of 200μg/L in equine urine – Offences under AR 175(h)(i), AR 175(h)(ii), AR 178 and AR 175(k) – Meaning of expression ‘causes to be administered’ in AR 175(h) – Conduct or negligence which led, or could have led to a breach of the Rules of Racing – Conduct of veterinarian in administering alleged vitamin complex unknown to trainers – Whether trainers caused administration of prohibited substance – Failure by stewards and laboratories to comply with AR 178D in testing samples – Consequences of failure to comply with test requirements – Alleged estoppel by convention – Whether proven – Alleged abuse of process by stewards – Decision of RAD Board set aside – Charges dismissed.

APPLICANT (Z34/2016):
APPLICANT (Z35/2016):
Mark Kavanagh
Danny O’Brien
RESPONDENT:
Racing Victoria Limited
WHERE HELD:
Melbourne
BEFORE:
Justice Greg Garde AO RFD, President
HEARING TYPE:
DATES OF HEARING:
Hearing
1–5, 8–11 August, 5–9, 19, 21, 26–28 September, 10, 14, 17, 20 October, 2, 4 November 2016.
DATE OF ORDER:
17 March 2017
CITATION:
Kavanagh v Racing Victoria Limited (Review and Regulation) [2017] VCAT 386


ORDER


In VCAT reference no Z34/2016 and Z35/2016, the Tribunal orders:

  1. The application for review of the decisions and orders of the Racing Appeals and Disciplinary Board dated 23 December 2015 and 20 January 2016 (‘RAD Board decisions and orders’) is allowed.

  1. The RAD Board decisions and orders are set aside insofar as they relate to Danny O’Brien and Mark Kavanagh.

  1. In substitution for the RAD Board decisions and orders, the charges against Danny O’Brien in relation to the horses Caravan Rolls On, Bondeiger, De Little Engine and Bullpit, and against Mark Kavanagh in relation to the horse Magicool are dismissed.

  1. Costs are reserved.




Justice Greg Garde AO RFD President


APPEARANCES:
For Applicants
Mr D Sheales with Mr T Purdey of Counsel instructed by Lander & Rogers
For Respondent
Mr J Gleeson QC with Mr A Dinelli and Mr J Hooper of Counsel instructed by Minter Ellison

CONTENTS

REASONS

Introduction

  1. The stewards of Racing Victoria Limited (‘RVL’)[1] prefer 16 charges under the Rules of Racing of Racing Victoria[2] against licensed trainer Danny O’Brien (‘O’Brien’) arising from the alleged detection of cobalt at a concentration in excess of the 200μg/L threshold in urine samples taken from the horses:

(‘the O’Brien horses’).

  1. The stewards also prefer four charges against licensed trainer Mark Kavanagh (‘Kavanagh’) arising from the alleged detection of cobalt at a concentration in excess of the 200μg/L threshold in a urine sample taken from the horse Magicool on 4 October 2014.
  2. The notices of charges relating to each of the horses are in the same form and are dated 11 June 2015.
  3. The charges were heard by the Racing and Disciplinary Board (‘RAD Board’) on 30 November 2015 and over seven days in December 2015. On 23 December 2015, the RAD Board found that the charges under AR 175(h)(i) were proven and dismissed all other charges.[3] O’Brien and Kavanagh applied for a review of the RAD Board’s decisions at the Victorian Civil and Administrative Tribunal (‘the Tribunal’). The review is conducted by way of a hearing de novo.[4]
    1. The charges against O’Brien and Kavanagh are laid in the alternative. For each horse, they are:
      • (1) One count of breaching AR 175(h)(i) (Charge 1’). This provides that the stewards may penalise:

(h) Any person who administers, or causes to be administered, to a horse any prohibited substance:

(i) for the purpose of affecting the performance or behaviour of a horse in a race ...

(2) One count of breaching AR 175(h)(ii) ‘Charge 2’'), which provides that the stewards may penalise:

(h) Any person who administers, or causes to be administered, to a horse any prohibited substance:

...

(ii) which is detected in any sample taken from such horse prior to or following the running of any race.

(3) One count of breaching AR 178 (‘Charge 3’), which provides:

... when any horse that has been brought to a racecourse for the purpose of engaging in a race and a prohibited substance is detected in any sample taken from it prior to or following its running in any race, the trainer and any other person who was in charge of such horse at any relevant time may be penalised.

(4) One count of breaching AR 175(k) (‘Charge 4’), which provides that the stewards may penalise:

(k) Any person who has committed any breach of the Rules, or whose conduct or negligence has led or could have led to a breach of the Rules.

  1. O’Brien and Kavanagh plead ‘not guilty’ to all charges.
  2. Dr Tom Brennan of the Flemington Equine Clinic (‘the clinic’) was O'Brien and Kavanagh's veterinarian. He was charged with five breaches under AR 175(h)(i) and 15 alternative breaches under AR 175(h)(ii), AR 175(k) and AR 175(l) in relation to the O’Brien horses and Magicool. Dr Brennan plead guilty in part to the charges under AR 175(k) and 175(l) and not guilty to the remaining parts and charges. The RAD Board found the charges under 175(h)(i) and (ii) in relation to each of the five horses proved. Dr Brennan applied to the Tribunal for review of the RAD Board’s decision but subsequently withdrew his application. The penalty imposed by the RAD Board on Dr Brennan remains in effect.
  3. This is a civil proceeding in which the standard of proof is on the balance of probabilities. The Tribunal requires a comfortable level of satisfaction that a charge is established.[5] The Tribunal is not bound by the rules of evidence and may inform itself in any manner in which it sees fit.[6]

Background

The parties and witnesses

  1. O’Brien and Kavanagh are and were at all relevant times trainers licensed by RVL. They are bound by the Rules of Racing.[7] O’Brien was at all relevant times the trainer of each of the O’Brien horses. Kavanagh was at all relevant times the trainer of Magicool.
  2. O’Brien retained Dr Brennan and the clinic as his veterinarian in relation to horses in his stable, including the O’Brien horses. Kavanagh retained Dr Brennan and the clinic in relation to horses in his stable including Magicool.
  3. In 2014 and 2015, Dr Brennan was a principal and senior partner of the clinic together with Dr Ian Church. Dr Brennan became a full partner of the clinic in about 2008 after about 10 years’ experience as a veterinarian.
  4. O’Brien, Kavanagh and Kavanagh’s son Sam Kavanagh were all clients of the clinic. Dr Brennan was the principal treating veterinarian to the stables of O’Brien and Kavanagh. At this time, the clinic had about 11 veterinarians and four office staff. The main premises and office of the clinic were located at Kensington, usually referred to as Flemington. Dr Brennan was mostly concerned with trainers’ stables at Flemington and the branch practices at Geelong and Mornington. Dr Church attended stables at Caulfield South.
  5. Key staff at the clinic include:
  6. The stewards concerned with the investigations of the cobalt readings of the O’Brien horses and Magicool include Terry Bailey, Dion Villella and Kane Ashby. Dr Brian Stewart is the Head of Equine Welfare and Veterinary Services at RVL.

The cobalt threshold and laboratory testing

  1. Cobalt chloride and other cobalt salts are readily available in Australia. A 100mL bottle of cobalt chloride costs about $40.
  2. On 14 April 2014, LR 68A was brought into effect in Victoria providing that cobalt in concentrations exceeding 200µg/L in equine urine was a prohibited substance. The rule was based on cobalt levels measured in standard bred horses by Harness Racing New South Wales and statistical analysis of this data by Professor Brynn Hibbert of the University of New South Wales. On 1 January 2015, a cobalt concentration limit of 200µg/L in equine urine was introduced across Australia by an amendment to the Rules of Racing[9] and LR 68A was repealed.
  3. Racing Analytical Services Ltd (‘RASL’) is a not for profit organisation established to provide drug testing services to the Victorian racing industry. RVL and RASL are located in the same building at 400 Epsom Road, Flemington. RASL’s constitution provides for RVL to appoint a director to RASL’s board.
  4. In April 2014, RASL did not have the equipment necessary to analyse for the presence of cobalt in equine urine samples. It did not obtain the equipment until mid-2015. For a period of approximately 15 months, samples were sent out of Victoria when cobalt concentrations were to be measured. The samples relating to this proceeding were sent to ChemCentre, a racing laboratory in Western Australia and the Hong Kong Jockey Club Laboratory (‘HKJCL’), the laboratory of the Hong Kong Jockey Club in Sha Tin District, Hong Kong. RASL recommenced testing all racing samples in Victoria in August 2015.
  5. The National Association of Testing Authorities (‘NATA’) is the authority that provides independent assurance that facilities and laboratories comply with international and Australian standards and are competent to provide reliable testing, calibration, measurement and inspection data to government, industry and the community. NATA is a not for profit company and has memoranda of understanding with the Australian, State and Territory Governments.

The horses

Caravan Rolls On

  1. On 1 November 2014, Caravan Rolls On ran in the Lexus Stakes (Group 3) over 2500m at Flemington Racecourse. The stewards took a pre-race urine sample from Caravan Rolls On. The sample was analysed and reported by:

Bondeiger

  1. On 1 November 2014, Bondeiger ran in the AAMI Victoria Derby (Group 1) over 2500m at Flemington Racecourse. The stewards took a pre-race urine sample from Bondeiger. The sample was analysed and reported by:

De Little Engine

  1. On 22 November 2014, De Little Engine ran in the People @ Work Handicap (BM70) over 2300m at Ballarat Racecourse. The stewards took a pre-race urine sample from De Little Engine. The sample was analysed and reported by:

Bullpit

  1. On 19 December 2014, Bullpit ran in the Jeep 55 Second Challenge Heat 9 (BM70) over 955m at Moonee Valley Racecourse. The stewards took a pre-race urine sample from Bullpit. The sample was analysed and reported by:

Magicool

  1. On 4 October 2014, Magicool ran in the UCI Stakes (Listed) over 1800m at Flemington Racecourse. The stewards took a pre-race urine sample from Magicool. The sample was analysed and reported by:
(d) HKJCL on 13 July 2016 in a certificate of analysis recording a concentration of 690µg/L with the measurement of uncertainty at 100µg/L estimated to be 9µg/L at 99% 1-tailed confidence level.

Defences

  1. O’Brien and Kavanagh admit that they were involved in making decisions as to the treatment of the O’Brien horses and Magicool respectively. They rely on similar defences which are in substance:

(a) each denies that prior to any race he administered cobalt or caused cobalt to be administered to any horse for the purpose of affecting the behaviour of the horse;

(b) each says he had no knowledge that cobalt or a substance described as ‘Vitamin Complex’ was administered to any horse;

(c) each contends that the analyses of ChemCentre and HKJCL were made using methods that were not accredited by NATA or a similar authority in an overseas country at the time;

(d) each contends that ChemCentre and HKJCL were not duly accredited, and therefore not ‘Official Racing Laboratories’ under the Rules of Racing when the relevant samples were analysed by them, and that under AR 178D(1) they were not permitted to analyse them for cobalt; and

(e) each says that the findings of ChemCentre and HKJCL are inadmissible.

Estoppel defence

  1. In addition to these defences, there are two claims of estoppel. The first estoppel is said to arise from a common understanding that the stewards would notify a trainer upon the detection by an Official Racing Laboratory of a prohibited substance in a horse. This gives the trainer an opportunity to alter the treatment regime of the horse concerned or withdraw or ‘scratch’ the horse from races.
  2. O’Brien claims that RVL acted in breach of the common understanding. He asserts the following facts to support his claim of estoppel:
  3. The second claim for estoppel is that the stewards had a duty to inform and warn trainers where the stewards were aware of a risk that the use of commercially available equine therapeutic products might cause levels of prohibited substances in horses that exceed those permitted by the Rules of Racing. It is alleged that the stewards did not do so.

Abuse of process

  1. O’Brien and Kavanagh both allege that the prosecution of the charges is an abuse of process, and say that it is:

Taking and analysing samples

  1. The stewards have power to take samples from horses. The stewards are empowered by AR 8(j) to:

take or cause to be taken any sample from any horse and to make or cause to be made any test to determine whether any prohibited substance is present in the system of the horse.

  1. The stewards’ power to take samples under AR 8(j) is subject to AR 178D, which provides:

...[12]

The evidence

  1. The evidence before the Tribunal includes extensive documentation relating to each horse. It also includes of interviews of witnesses and of O’Brien and Kavanagh, and the evidence of the witnesses who provided expert reports or witness statements. Most of the witnesses, together with O’Brien and Kavanagh, gave evidence at the Tribunal hearing.
  2. I now turn to summarise and assess the evidence relating to the issues in dispute.

Dr Brennan

  1. Dr Brennan was interviewed by the Victorian stewards and the stewards of Racing NSW (‘NSW Stewards’) on several occasions after the detection of cobalt in urine samples taken from horses in his care. Much of his early evidence was later recanted. Significant evidence from each interview is set out separately.

Dr Brennan’s interview on 14 January 2015

  1. Dr Brennan was interviewed by the stewards on 14 January 2015. When asked about the post-race urine sample taken from Magicool on 4 October 2014, he said that he had no explanation for the results, they had never used cobalt in the clinic, and it was ‘in a lot of stuff, like VAM[13]’ which was administered in pre-race drips. He described the pre-race drip that he administered as consisting of a one litre Darrow’s[14] and 20ml each of VAM, Ferrocyl and Coforta.
  2. Dr Brennan said that he had heard that cobalt was highly carcinogenic, and that he had told all the vets at the clinic not to go anywhere near it. He said that he was worried about cobalt because some of his trainers were approached by gangland figures, who said they could source a lot of stuff, and Dr Brennan recommended they stay away from it. He said that he had previously told Dr Stewart that the use of cobalt was an emerging problem that needed to be addressed.
  3. Dr Brennan said that he had never had any discussions with Kavanagh in relation to cobalt.

Dr Brennan’s interview on 16 January 2015

  1. Dr Brennan was interviewed by the stewards again two days later about the elevated cobalt levels detected in Caravan Rolls On, Bondeiger and De Little Engine. He said that he had received a telephone call from a veterinarian in Hong Kong who said that trainers were warned not to use VAM and other B vitamins in the week leading to a race for fear of going over the threshold. The horses that had been affected had all had VAM in a pre-race drip.
  2. Dr Brennan said that the clinic had never purchased cobalt in its purest form.

Dr Brennan’s interview on 23 March 2015

  1. Dr Brennan was interviewed by the stewards on 23 March 2015. He said that in 2014 he asked O’Brien and Kavanagh whether they wanted to start administering vitamins via a drip in the Spring. He said they agreed, and told him they would identify the appropriate horses to receive the vitamins and the best time.
  2. When asked about his discussions with O’Brien and Kavanagh after cobalt was detected, Dr Brennan said that asked him what he had done to them. Dr Brennan said ‘I’ve given them a drip and it’s blown up spectacularly’.
  3. Dr Brennan was asked about an allegation made by Sam Kavanagh as part of an investigation by the NSW Stewards that a bottle containing cobalt found in Sam Kavanagh’s stable was supplied by the clinic. Dr Brennan responded that this allegation was completely false, and all the clinic had supplied to Sam Kavanagh for cash was some drenches. Dr Brennan said that from what he had heard, Sam Kavanagh was trying to blame him and Dr Adam Matthews, another veterinarian at the clinic.
  4. Dr Brennan said that Dr Matthews no longer worked for the clinic, and he declined to discuss why.
  5. Dr Brennan said that he and O’Brien had never discussed the use of cobalt by O’Brien’s stable.

Dr Brennan’s interview on 13 May 2015

  1. On 13 May 2015, Dr Brennan was interviewed by the Victorian stewards. He was shown a photograph of a bottle with a label on it entitled ‘Vitamin Complex’. He categorically denied having ever had that product in his possession or having ever supplied it to anybody. When informed that the bottle had been found during an inspection of Sam Kavanagh’s stable, he said ‘That’s the first I’ve seen of it’.
  2. Dr Brennan was asked about the observation of Ms Potter that she had seen Dr Brennan put an additional substance into a drip at O’Brien’s stable on a number of occasions. Dr Brennan responded that he had never used the product, never put it into a drip, and especially had not put it into anything at O’Brien’s stable or any of the other stables under his care.
  3. Dr Brennan said that O’Brien and Kavanagh had given him their approval to use a multi-vitamin drip to aid recovery. Treatment commenced on 25 September 2014 and 27 September 2014 respectively. Dr Brennan repeatedly denied having added the vitamin complex product to the drip.

Dr Brennan’s evidence at the Racing NSW Inquiry on 9 June 2015

  1. On 9 June 2015, Dr Brennan went before the Racing NSW Inquiry.[15] The NSW Stewards showed him a 100mL injectable bottle of vitamin complex. Dr Brennan denied ever seeing the bottle, other than a photo of it in the inquiry by the Victorian stewards. He denied that he sent bottles to Sam Kavanagh’s stable, that Sam Kavanagh paid him $1,000 a bottle for two bottles, and that he had instructed Ms Potter to post the bottles to Sam Kavanagh.
  2. When the NSW Stewards told Dr Brennan that Ms Potter had given evidence that one of the clinic’s postage books went missing in early 2015, Dr Brennan said it was his understanding that once a book is full, it is disposed of, and he imagined that was what happened in this case. When questioned further about the fact that the book is a crucial piece of evidence as it would show whether bottles were sent to Sam Kavanagh, Dr Brennan said that the clinic was not required to keep the book and it was only a reference point if something that was posted did not arrive. He also said he was not ‘in charge’ of the book and only became aware that it was missing when he returned from leave.
  3. Dr Brennan denied that he had ever seen Dr Matthews with a vitamin complex bottle. He denied receiving a bottle of vitamin complex from Dr Matthews.

Dr Brennan’s interview on 20 July 2015.

  1. On 20 July 2015, Dr Brennan was interviewed by the NSW Stewards. He told them that he had not been completely honest, and he felt terrible for what he had done.
  2. He explained that he had misled the stewards at the previous interview. He said that he had seen a bottle like that shown to him previously or a bottle extremely similar to that. In early September 2014, Dr Matthews told him he had been using a vitamin and mineral complex that helped horses recover from gallops. Dr Brennan said that Dr Matthews told him that the bottle contained no prohibited substances and had not returned any positive swabs.
  3. Dr Brennan said he asked Dr Matthews whether the bottle contained any cobalt, and was assured that it was an all-natural substance and did not contain any cobalt whatsoever. He said that Dr Matthews explained that the cobalt that people had been using was in a red or blue bottle, and this was an orange bottle. Dr Matthews said it definitely would not swab and there was nothing illegal about it. Dr Matthews told him the product cost $1,000 a bottle.
  4. Dr Brennan said that he was concerned about the bottle, so he called Nick Bova of Bova Compounding to ask him how much it would cost to get the bottle tested. He said that when he told Mr Bova that it was just multivitamins, Mr Bova said as he did not know what was in it, testing would cost between $10,000 and $100,000.
  5. Dr Brennan admitted that he sent Sam Kavanagh two bottles: one bottle on two separate occasions. Dr Matthews sent Sam Kavanagh a bottle in mid to early October 2014.
  6. Dr Brennan stated that Dr Matthews told him that the vitamin complex was Canadian and that he got it from Canada. Dr Brennan made no inquiries of the alleged Canadian source. He said Dr Matthews told him the vitamin complex was $1,000 a bottle, and that twenty 5mL doses could be obtained out of a bottle. Each dose cost $50.
  7. Dr Brennan said that he asked Ms Potter to send bottles of the vitamin complex to Sam Kavanagh on two occasions. When asked about Ms Potter’s statement that the bottle she was asked to send Sam Kavanagh was the same bottle as she had seen in the fridge in the back of Dr Brennan’s car at O’Brien’s stable, Dr Brennan admitted that he had kept a bottle in the fridge in the back of his car.
  8. Dr Brennan admitted that he had disposed of the postage book because it would lead a trail back to him. He said that nobody saw him do it.
  9. He said that neither Dr Ian Church, a senior partner at the clinic, nor Aaron Corby, the clinic’s Business Manager, knew of the vitamin complex bottles. The money for the bottles went to Dr Matthews. He said that all Mr Corby knew was that Dr Brennan had given multivitamin drips to some horses; he did not know that Dr Brennan had been using the substance from the vitamin complex bottle.
  10. Dr Brennan said that Sam Kavanagh told him he would tell the NSW Stewards that he had been sent the bottle that was seized from his stable from Dr Brennan. Dr Brennan responded that he thought Sam Kavanagh had gotten rid of the bottle, and ‘[y]ou do what you are going to do, but I’m going to be defending myself’.[16]
  11. Dr Brennan admitted giving false evidence. He said:

I accept that I gave the inquiry false evidence when I went up there and I am extremely remorseful for that. You know, I’ve disgraced Dr Church, who has nothing to do with it, but he’s my partner in the business, disgraced the veterinary profession. I’ve disgraced the racing community, which I’ve been a part of since I was in a pram and innocent people have been brought into this that have got absolutely nothing to do with it. I accept that I’ve been dishonest with you guys and I’m extremely remorseful and I can’t take back what I’ve done, sir.[17]

  1. He said that he had not spoken to Dr Matthews since mid-March 2015. Dr Matthews was terminated from the clinic for reasons separate to this matter.
  2. He said that he questioned Dr Matthews about the cobalt positives, and Dr Matthew told him he had spoken to the manufacturer in Canada, who sent him a list of what was in the bottle, and it was only B vitamins and no cobalt.

Dr Brennan’s interview on 20 July 2015

  1. Later on the same day, Dr Brennan was interviewed by the Victorian stewards. He reiterated the evidence he had given to the NSW Stewards.
  2. Dr Brennan said that Dr Matthews gave him the first bottle of vitamin complex at Dr Brennan’s home, and the other bottles at the track. He said that Dr Matthews said he knew someone in Canada; Dr Brennan did not know how Dr Matthews imported the vitamin complex from Canada.
  3. He said that between a day and a week after Dr Matthews approached him about the vitamin complex, he told Kavanagh:

Adam’s got a new B vitamin, multivitamin mineral complex he’s sourced from Canada. He said it’s a hundred per cent natural, helps horses recover... He has told me it has not got cobalt in it... This product – I can’t guarantee, there’s no guarantees – this is what it’ll cost to get it tested from my guys...10 to a hundred [thousand dollars]...[18]

  1. Dr Brennan said that Kavanagh responded ‘Oh, stuff that. Just use it. I’ll give you a list of horses you can start using it on.’[19]
  2. Dr Brennan said that Kavanagh paid $3,000 in cash for three bottles of the vitamin complex, and Dr Brennan gave the cash to Dr Matthews. In late October 2014 Kavanagh said ‘That drip’s shit, it doesn’t work. We’re not using it anymore.’[20]
  3. Dr Brennan said that a day or so after he approached Kavanagh, he spoke to O’Brien about the vitamin complex. He told O’Brien that the vitamin complex had no cobalt in it, but there were no guarantees, and if he wanted to get it tested, it would cost up to $10,000.
  4. He said that when the trainers were notified of the cobalt positives, O’Brien said to him ‘Bullshit, that’s the one thing we know is not in that’.[21] When Kavanagh contacted him, Kavanagh was angry and Dr Brennan told him ‘a hundred per cent. There’s no friggin’ cobalt in that.’[22]
  5. Dr Brennan said that he called Dr Matthews about the positives, and Dr Matthews assured him there was no cobalt in the vitamin complex bottles, and that he would contact the supplier in Canada to find out what was in the bottles. He said that Dr Matthews called back later and told him it was only folic acid, B12 and other B vitamins. Dr Brennan said that he did not know who Dr Matthews was getting the vitamin complex from in Canada, but the bottles were purchased online.
  6. Dr Brennan said that O’Brien never saw the bottle, nor did he supply it to him directly; it was administered at O’Brien’s stable after O’Brien gave Dr Brennan a list of horses to give it to. Dr Brennan said there was a bank transfer for $3,000 from O’Brien for three bottles. Dr Brennan kept a bottle in his fridge and kept track of every horse on which it was used. Owners were charged $120 for each drip.
  7. He said the stable hands held the horse while the drip was being administered, but they had no idea what was in the drips. Dr Brennan was not sure if Kavanagh had seen the bottle before, although he had been around the back of Dr Brennan’s car where it was kept. He said he could not remember showing O’Brien the bottle so he may not have seen it before.
  8. He said his relationship with Kavanagh was not great, but O’Brien had trusted him. He said when he found out that the bottle contained high concentrations of cobalt, he delayed telling O’Brien because he thought O’Brien would fire him. Dr Brennan said he realised he was in trouble when he saw the photo of the bottle of vitamin complex at the stewards’ inquiry.

Dr Brennan’s evidence before the RAD Board on 1–4 December 2015

  1. Dr Brennan gave evidence before the RAD Board over four days. He repeated his evidence about contacting Mr Bova to get the contents of the vitamin complex bottle tested. He said that cobalt was his major concern, and Dr Matthews had assured him there was no cobalt. He acknowledged that a test for cobalt would only have cost him around $200. He agreed that he should have contacted RASL and requested elective screening.
  2. Dr Brennan said that he spoke to Kavanagh at his stable a day or two after he first spoke to Mr Bova about testing the vitamin complex bottle. The bottle was sitting on top of his fridge and would have been visible to Kavanagh. Dr Brennan said that he told Kavanagh that there were 20 doses in the bottle. He had been told by Dr Matthews that there was definitely no cobalt in the bottle, but there were no guarantees. He explained that testing started at $10,000 and could be as much as $100,000. Dr Brennan said Kavanagh told him to ‘just use it’,[23] and a couple of days later, Kavanagh gave him $3,000 in cash for three bottles. Dr Brennan said he did not enter this transaction in the clinic’s books, and he gave the $3,000 to Dr Matthews. The clinic was making money charging $120 for each drip.
  3. Dr Brennan said that in mid-September 2014, he had a conversation with O’Brien about the vitamin complex, also conducted at the back of Dr Brennan’s car. He said he could not recall O’Brien seeing the bottle. Dr Brennan said that his conversation with O’Brien was similar to his conversation with Kavanagh; he told O’Brien about the cost, the doses, that Dr Matthews had sourced the bottle from Canada, and the cost of testing it. Dr Brennan said a few days later, O’Brien told him he accepted the use of the drips and provided list of five or so horses.
  4. Dr Brennan said that he picked up three bottles from Dr Matthews at the end of September at Flemington. Dr Brennan kept a bottle in the back of his fridge with the other three bottles in his vitamin drawer in the back of his car. O’Brien paid $3,000 on 19 November 2014 by bank transfer into Dr Brennan’s bank account, and Dr Brennan withdrew this and gave it to Dr Matthews. Kavanagh provided $3,000 in advance.
  5. Dr Brennan did not keep separate bottles for O’Brien and Kavanagh, and only recorded the drips as pre-race drips or recovery drips.
  6. Dr Brennan instructed a staff member to send Sam Kavanagh a bottle after Sam Kavanagh paid for it. A second cash payment of $1,000 secured a second bottle.
  7. Dr Brennan explained that Kavanagh ceased to retain the clinic or Dr Brennan at the end of October 2014 following a dispute about a veterinary fee.
  8. According to Dr Brennan, on 14 January 2015 O’Brien received a phone call advising that two of his horses had tested positive to cobalt, and that the stewards were with Kavanagh at the time of the call. Dr Brennan said that he and O’Brien had ‘a little bit of a giggle’ saying that ‘the one thing we know that’s not in those vitamins is cobalt’.[24]
  9. Dr Brennan said he contacted Dr Matthews who assured him that there was no cobalt in the bottle. Dr Matthews said he would contact someone in Canada to get more information, and he later told Dr Brennan that his contact said it was just vitamins and there was no cobalt in the bottle. When questioned about whether he asked Dr Matthews about the Canadian supplier, or got in touch with the Canadian supplier himself, Dr Brennan said ‘we didn’t do as much on that as we should’.[25]
  10. When questioned about this on the following day of the RAD Board hearing, Dr Brennan said that Dr Matthews was evasive when asked questions about the Canadian supplier, and that Dr Matthews was a very good liar. He said the story as to the identity of the Canadian contact changed, and Dr Matthews never provided any details for him despite requests to do so.
  11. Dr Brennan said Dr Matthews was later dismissed on account of a different matter.
  12. Dr Brennan said that when he returned to the clinic on 14 January 2015 he contacted Dr Ben Sykes, an internal medicine specialist, and asked him to look into the cobalt positives. He said Dr Sykes advised him that VAM would cause an over-threshold result. When questioned further about this statement, Dr Brennan responded that there were a lot of discrepancies around that and the science is very new.
  13. Dr Brennan said that he was lulled into a false sense of security that the ingredients in the bottle were vitamins and that the guidelines for vitamins are not as strict as those for scheduled drugs.
  14. Dr Brennan gave two reasons for not telling the stewards about the vitamin complex in January 2015. The first was that he did not know what was in the multivitamin, and the second was that he was assured that there was no cobalt in it, and was acutely aware that cobalt had a three year penalty associated with it.
  15. Dr Brennan repeatedly stated that neither he nor the trainers knew that the vitamin complex contained cobalt or that cobalt was being administered to the horses. He said O’Brien and Kavanagh did not want anybody knowing that they were using this product, and they conveyed that to Dr Brennan.
  16. Dr Brennan said that he always added the vitamin complex to the drips; he did not ask Ms Potter to do this. He said he did this to avoid her knowing and speaking to other veterinarians about it, who may then ask him for it.
  17. Dr Brennan said the most he would ever pay for a 100mL vitamin bottle for racehorses was between $50 and $100. As to the cost of the vitamin complex bottle in this case, he said that Dr Matthews told him he was paying $1,000, but he now knew this to be a lie.
  18. Dr Brennan said he supplied two bottles of the vitamin complex to Sam Kavanagh. The bottles were posted by Ms Potter. He threw the express post book in the bin in March 2015 because he was aware that the book would link the bottles sent to Sam Kavanagh to him and implicate him in the provision of prohibited substances.
  19. He repeated the his evidence that on 14 January 2015, he told Sam Kavanagh to get rid of the bottle,. Sam Kavanagh replied that he stopped using it in December 2014, and had gotten rid of it a long time ago. However on 4 February 2015, Sam Kavanagh called Dr Brennan and told him his stables had been raided, and the NSW Stewards had taken a bottle of vitamins. Sam Kavanagh lied and said it was not the bottle provided to him by Dr Brennan.
  20. Dr Brennan said that in late February 2015, Sam Kavanagh told him that he was on his way to see the NSW Stewards and he would name Dr Brennan as the supplier of the vitamin complex bottle. Dr Brennan attempted to dissuade him stating that he thought that Sam Kavanagh had told him it was not his bottle, ‘some bloke had dropped it off’.[26]
  21. Dr Brennan said that he did not tell Dr Amy Kelly about sending Sam Kavanagh the vitamin complex because Sam Kavanagh asked him not to tell her. He also deliberately kept the information from Dr Catherine Brown, who administered drips to the Sam Kavanagh’s horses Feels Like Home, Beauty’s Beast and Keep De Rose, even after she contacted him about Feels Like Home appearing to have an adverse reaction to the drip.
  22. Dr Brennan said that he was deceived by Dr Matthews, and that this deceit led him to deceive the trainers. He said that he did not intend to deceive the trainers, and that he did not know at the time he was deceiving them.
  23. Dr Brennan said that in late February or early March 2015, Kavanagh attended the clinic. Dr Brennan told him that he had sent two bottles of vitamin complex to Sam Kavanagh, and had since told him to get rid of them. He said Kavanagh was not happy about this.
  24. Dr Brennan admitted that he had failed to tell the NSW Stewards Inquiry some two weeks after he had apparently made a clean breast of things, that he had disposed of a bottle of the vitamin complex in a dumpster. He said the omission was a mistake, and denied that there were other important matters in respect of which he was still not telling the truth.
  25. Dr Brennan agreed that he had attempted to remove any capacity for those bottles to be linked back to him in any way. This included personally disposing of the bottle that was in his possession, instructing Sam Kavanagh to dispose of any bottles he had, and confirming with Dr Matthews that he no longer had any bottles in his possession. Dr Brennan agreed that from 14 January 2015 until 4 February 2015, he believed that there were no bottles anyone could ever find.

Dr Brennan’s evidence before the Racing NSW Panel on 10 February 2016

  1. Dr Brennan appealed the decision of the NSW Stewards and the appeal was heard by a panel appointed by Racing NSW on 10 February 2016.[27] In his evidence before the panel, Dr Brennan said he did not give the bottles of vitamin complex to O’Brien and Kavanagh; he retained the bottles himself and administered the drips. He said that he acquired eight bottles in total from September 2014 until January 2015. He said that O’Brien paid for three bottles as did Kavanagh, while Sam Kavanagh purchased two.
  2. Dr Brennan denied that he was the supplier of the vitamin complex. While he spoke to Dr Matthews about the supplier in Canada, he did not ask for the name of the supplier or follow it up as much as he should have. He did not ask Dr Matthews to return from leave early or require him to provide the name and address or contact number of his contact in Canada immediately.
  3. Dr Brennan said that he was never going to stand Dr Matthews down over cobalt because he was as guilty as Dr Matthews was. Dr Matthews was terminated for a reason other than the cobalt issue. Dr Matthews had been on sick leave from 17 March 2015 following a meeting on that day, and was then terminated.
  4. Dr Brennan explained that while the staff made up the drips, he added 5ml of vitamin complex from the back of his car. He accepted that he administered the vitamin complex to O’Brien and Kavanagh’s horses and that he sent one bottle to Sam Kavanagh in each of September and October 2014.
  5. Dr Brennan admitted that he had not told Dr Brown about the administration of the vitamin complex in the drip administered to Feels Like Home and Keep De Rose despite the fact that she was a colleague vet reporting an alarming condition in horses that he cared for.
  6. He admitted that he ‘didn’t get proper [provenance]’[28] on the bottles so he spoke to Nick Bova about getting the vitamin complex tested. He agreed that his concern was about cobalt, however he said he did not ask Mr Bova how much it would cost to conduct a cobalt test because Dr Matthews had assured him that there was no cobalt in the vitamin complex.
  7. Dr Brennan said that he did not tell Dr Church that the vitamin complex bottles contained high quantities of cobalt until June 2015. He agreed that he had kept Dr Church in the dark because he knew it was risky and he did not want to compromise Dr Church. Dr Brennan also agreed that he should have spoken to him when the vitamin complex first came to his notice.
  8. Dr Brennan said that he had not told Mr Corby about the vitamin complex before Mr Corby went to Sydney to speak with Sam Kavanagh about it because he did not want to implicate Mr Corby in this matter. He said Mr Corby would have had a duty to notify the stewards about it.
  9. Dr Brennan agreed that he had retained Dr Sykes to look into the science behind the cobalt findings but did not tell Dr Sykes the truth about his use of the vitamin complex. He admitted that he suspected there was cobalt in the vitamin complex bottle when he sought Dr Sykes’ opinion to whether VAM could have caused the cobalt positive. He said he was trying to get his head around the cobalt science and wondering if that could have explained it. He did this after he had eliminated the possibility of anyone testing the vitamin complex as he had disposed of the bottle and instructed Sam Kavanagh to do the same.
  10. Dr Brennan admitted he deliberately lied to the stewards about the bottle on 14 January 2015 when the positive results were returned, despite being aware that there were penalties for lying to the stewards. He said it was not until the RAD Board hearing in December 2015 that he told the hearing that he had thrown away the vitamin complex on 14 January 2015. Dr Brennan said that was a mistake, and he could have advised the stewards of it in July 2015 but did not. He said that after the positive cobalt swabs were returned for O’Brien and Kavanagh he threw out the remains of the vitamin complex that he had.
  11. Dr Brennan admitted that he disposed of the postal record that showed that the clinic had sent vitamin complex bottles to Sam Kavanagh. He admitted that he had falsely said that Ms Potter was wrong in the evidence she gave.
  12. Dr Brennan said that he threw the bottle of vitamin complex that he had into the skip bin near another trainer’s stable. Dr Brennan said that the day after he disposed of the bottle, he went back to the bin where he had thrown out his bottle, but the bin had been emptied.
  13. He admitted lying at his interview on 9 June 2015 when he said that he had only seen a photo of the bottle, and not the bottle itself. He had lied about sending bottles to Sam Kavanagh. He said that he had also lied about a thousand dollars in cash, received for drenches, being divided between himself and Dr Church.

Dr Brennan’s evidence at the Tribunal on 3–5 August 2016

  1. Dr Brennan gave evidence before the Tribunal over a three day period.
  2. When asked about his involvement in the ‘supplementation program’ that resulted in the proceeding before the Tribunal, Dr Brennan said that in early September 2014, Dr Matthews visited him at home and had a 100mL brown bottle of vitamin complex. He said Dr Matthews told him he had been using it extensively in the harness racing industry for the past two to three months. He said that it was a formulation of concentrated vitamin B12. He told Dr Brennan that he added a 5mL dose to a litre of Darrow’s drip with Ferrocyl, VAM and vitamin C. He said Dr Matthews told him he procured the bottle from Canada, and that it was a new supplement used to aid recovery in racehorses. Dr Matthews told him it was ‘totally natural and it had no swab time and it contained no prohibited substances’.[29]
  3. Dr Brennan said he asked Dr Matthews about cobalt and Dr Matthews specifically reassured him that it was fine. Cobalt was the only prohibited substance Dr Brennan asked about. Dr Brennan said he was very anti-cobalt.
  4. When asked whether he had any doubts about Dr Matthews because Dr Matthews had previously worked for the clinic and left in questionable circumstances, Dr Brennan said he did not. When asked why he had given precisely the opposite answer in his evidence at the RAD Board, Dr Brennan answered that he was under a lot of pressure at that time, and that it was not black and white. When pressed about his earlier answers, Dr Brennan said that he had more of a niggling doubt about the bottle.
  5. In response to a question from the Tribunal as to whether Dr Matthews had any contacts in Canada, Dr Brennan said that Dr Matthews said he was he was friends with international trainers in Canada and that he had been introduced to a chemist in Canada. Dr Brennan added thinking about it now he does not believe a word Dr Matthews said about Canada, and that he now thinks he was getting the vitamin complex off someone else. In further evidence, Dr Brennan said he had doubts about the Canada story. He agreed that Dr Matthews was not a partner, and Dr Brennan could have sacked him if he wanted to do so, but he did not do that.
  6. When questioned about why he did not query the price for the vitamin complex on the grounds that vitamins could be purchased for around $50, Dr Brennan said he just did not have that conversation, and that Dr Matthews had said there were 20 doses in the bottle and it was supposed to be concentrated. Dr Brennan denied that he did not ask further questions because he knew there was more than vitamins in the vitamin complex.
  7. Dr Brennan said that Dr Matthews gave him a bottle of vitamin complex. On 11 September 2014 he called Mr Bova, who Dr Brennan had used for a number of years, and told Mr Bova that Dr Matthews had given him a bottle of multivitamins that was supposed to contain concentrated vitamin B12, but there was no product list on the side of the bottle and he didn’t have proper provenance on it. Dr Brennan said that he asked about testing the contents of the bottle, and Mr Bova told him that testing starts at $10,000 and can go up to $100,000. He did not ask Mr Bova about the cost of a test for cobalt alone.
  8. Dr Brennan agreed that Kavanagh was already giving multivitamins and the like to horses after hard work. This was a normal practice in stables. The clinic often administered electrolyte drenches and drips as needed. Dr Brennan explained that drips were a different method of helping a horse’s recovery after work.
  9. Dr Brennan said he had a conversation with Kavanagh about the bottle at his car at Kavanagh’s stable. He said the vitamin complex bottle was on top of his fridge at the back of his car. Dr Brennan said that he told Kavanagh that Dr Matthews had procured the bottle from Canada, that it was an all-natural form of B vitamins and concentrated B vitamins specifically used for the recovery of horses after hard gallops.
  10. According to Dr Brennan, he told Kavanagh the price, dosage and when to use the vitamin complex. He also reiterated the information about the cost of testing the product, and that he could not give any guarantees about the product. Dr Brennan said that Kavanagh said to use it, and when asked for exact words, Dr Brennan said Kavanagh said ‘let’s use it’. Dr Brennan said that a few days later while he was at Kavanagh’s stable, Kavanagh brought him $3,000 cash and told him it meant he was in front. He said that Kavanagh gave him verbal instructions about which horses to provide the drip to, and he updated this from time to time.
  11. Dr Brennan said that prior to the latter part of 2014, O’Brien did not use drips on his horses on a systematic basis, only when drips were needed. O’Brien had introduced trials of certain medications into his stable before, including different ulcer treatments and medications to help with horses’ joints. It was not unusual for him to try new systems to try to improve best practice in the stable. O’Brien’s stable was a sophisticated, professionally run organisation.
  12. When asked about O’Brien, Dr Brennan said that the day after speaking with Kavanagh about the vitamin complex, he spoke to O’Brien during the morning rounds at O’Brien’s stable and told him that he had a new bottle of B vitamins that would help aid recovery of horses after fast work. He did not show O’Brien the bottle. He repeated the information given to Kavanagh regarding Dr Matthews sourcing the bottle from Canada, when to use the product, the cost of testing it and that he did not have 100% provenance on the bottle. He told O’Brien that Dr Matthews had used it in harness racing and had winners.
  13. Dr Brennan said that O’Brien had a think about it for a couple of days and then returned with a list of four or five horses he wanted to use the vitamin complex. He said that O’Brien gave verbal updates of the horses that should receive the drip around every 10 days.
  14. Dr Brennan said that he started using the drips in O’Brien’s stable on about 25 September 2014, and stopped them at the end of December 2014 because the horses were then going out of work, he was going on holidays, and the Magic Millions Sales were coming up.
  15. Drips at Kavanagh’s stable started on about 26 September 2014 and stopped around 24 October 2014. Kavanagh told Dr Brennan that the drips weren’t working and to stop using them.
  16. Regarding the delivery of the vitamin complex, Dr Brennan said that he added it to the drips which were usually prepared by Ms Potter. He did this at the back of his car and then administered the drip into the jugular vein of the horse. Dr Brown administered some drips at Barwon Heads for O’Brien and Sam Kavanagh administered drips to his horses himself.
  17. Dr Brennan also agreed that he made a conscious decision not to tell Dr Brown (who had administered drips to which Dr Brennan had added the vitamin complex) about the vitamin complex. He told her to administer the drips, but did not tell her that the vitamin complex was in the drips because he did not want his vets to know about the bottle until he had the full details of its provenance. When asked what he did to determine the provenance of the bottle, Dr Brennan responded that his call to Mr Bova was the only step he took.
  18. Dr Brennan admitted that he lied to Dr Church. He told Dr Church the truth on or after 20 July 2015.
  19. According to Dr Brennan, the trainers bought the bottles, and he just acted as a conduit for the trainers to get the bottles. Dr Brennan said that the bottles of vitamin complex were not put through the books. This was a conscious decision by him because the trainers had purchased them from Dr Matthews. He was only acting as a conduit.
  20. When asked about when he found out about the cobalt positives, Dr Brennan said that O’Brien called him and told him that Peter Moody[30] called O’Brien to tell him Kavanagh had a cobalt positive, and word was that O’Brien had multiple cobalt positives. Dr Brennan said he told O’Brien that cobalt was the one thing they knew was not in the bottle. Dr Brennan then called Sam Kavanagh and told him that his father had a positive.
  21. Dr Brennan said that he received a call from Kavanagh after he was notified of the cobalt positives. Kavanagh was angry and told him that the stewards were at his stable and wanted to interview Dr Brennan straight away. Dr Brennan called Dr Matthews who assured him that there was no cobalt in the bottle.
  22. Dr Brennan agreed that he was not truthful to the Victorian or New South Wales stewards. He said he lied to protect himself and the trainers. He said he felt extremely guilty; he was the primary care veterinarian and the trainers had a trust in him, built up over a number of years. He said he was hoodwinked by an associate who he had trusted
  23. Dr Brennan admitted that he had not told RVL about the vitamin complex and that he maintained the lie until 20 July 2015. He said that he consulted a colleague about VAM and its effect on cobalt readings on 14 January 2015, but he did not tell this colleague about the vitamin complex. He said he received a call from a friend in Hong Kong who told him that vitamins would have been the reason why the result was over-threshold. He said ‘so armed with all that, we got onto the VAM bandwagon and we just rolled with it’.[31] He said that later, things started to compound.
  24. Dr Brennan agreed with Ms Potter’s evidence that she did not see the vitamin complex at, or ordered through, the clinic. He said he was hiding the vitamin complex bottle from the clinic ‘to a degree’. The bottles always stayed in his car and he did not put them on the shelf at the clinic, however he did not completely hide it from his staff because he gave a bottle to Ms Potter to send to Sam Kavanagh on two separate occasions.
  25. Dr Brennan agreed that he reached the point where he realised that employees of the clinic were being unfairly dragged into this matter, and being called dishonest because he was concealing his involvement in the matter. He agreed that he could not solve this problem for Ms Potter without inflicting some collateral damage on O’Brien, Kavanagh and himself.
  26. Dr Brennan said that he still had a bottle of vitamin complex in his car when he became aware of the cobalt positives. He admitted he threw the bottle out in what he described as ‘a moment of panic’ at the Flemington Racecourse. He did not volunteer the fact that he had done this in his interview with RVL on 20 July when he was asked about whether he had since had the bottle tested. He said he did not take the bottle of vitamin complex that he had straight into the stewards to be tested as he knew that there was a three year disqualification attached to cobalt.
  27. Dr Brennan was presented with a bottle of vitamin complex at the hearing before the Tribunal. When asked about why the label of the bottle said ‘to be administered orally’ but the bottle cap was accessible by syringe, he said that he could not remember the bottles that he was using saying ‘to be administered orally’, but they may have. Dr Brennan agreed that the following characteristics of the bottle would have caused him to be suspicious about it:
  28. Dr Brennan said that if Ms Potter had seen the bottle, she probably would have asked some questions. He stated that while he thought she would have had full trust in him, he did not know the provenance of the bottle, and did not want her talking to other veterinarians about it until it had been properly tested. As this was not done, he kept the bottle from her.

Clinic veterinarians and staff

  1. A number of veterinarians and clinic staff gave evidence. I have no hesitation in accepting the evidence of Dr Stuart Vallance, Dr Catherine Brown, Dr Emma Wood, and Ms Samantha Potter. They are honest and competent veterinarians and staff who unfortunately found themselves in a web of deceit and malpractice instigated by Dr Brennan.

Dr Stuart Vallance

  1. Dr Vallance was first interviewed by the Victorian stewards in May 2015. He told the stewards that during the 2014 Spring Racing Carnival, Dr Brown asked him if he knew what was in some drips, because Dr Brennan had advised her that there could be a reaction by a horse administered a drip at the O’Brien stable but he did not tell her what was in the drips.
  2. Dr Vallance was interviewed by the New South Wales stewards twice in June 2015. He said that in Spring 2014 he had seen the vitamin complex bottle in the back of Dr Brennan’s car in his car fridge. He did not know what the product was.
  3. In evidence before the Tribunal in August 2016, Dr Vallance said that on the day he saw the vitamin complex bottle in Dr Brennan’s car, the car was parked at the front of the clinic. He went to Dr Brennan’s car fridge to get another product and the vitamin complex bottle caught his eye because it was not stocked on the shelves and he had not seen it at the clinic. He had been alerted by Dr Brown that there was potentially something in drips that was causing adverse reactions. He noticed that the bottle was not a normal drug bottle; it had no manufacturer’s address, and looked very different from a standard, legitimate veterinarian supplementation product. He did not know what was in it.
  4. Dr Vallance explained that after 20 July, Dr Brennan sat him and Dr Wood down and told them that Dr Matthews came to him with the vitamin complex bottle which was said to be obtained from Canada, and that the vitamin complex was put into drips. He said no one could tell him what was in it, but it turned out it had cobalt in it. Dr Vallance said he ended his employment with the clinic within a week of this conversation on the basis of Dr Brennan’s misconduct and change of evidence. He did not want to be associated with the clinic anymore. Dr Vallance said that he was disappointed because he had seen the vitamin complex bottle in the Spring, and had been lied to by Dr Brennan for six months.
  5. Dr Vallance referred to a clinic practice meeting in January 2015 following the cobalt positives of O’Brien and Kavanagh. All of the vets, Mr Corby, and the office staff were required to attend. Dr Brennan explained ‘the situation’ and proposed new swab times for vitamins and other substances, and other directions for the administration of vitamins.
  6. Dr Vallance said that over the entire time that he had known them, O’Brien and Kavanagh had been horse trainers of the utmost integrity. They ran professional stables. Both employed vets to give all injections and drenches.

Dr Catherine Brown

  1. In her evidence before the Tribunal in August 2016, Dr Brown described the way drips were administered by her to O’Brien’s horses when she was at Barwon Heads. The work was dictated by Dr Brennan in an email outlining a pre-race plan. In his email to her on 29 October 2014, Dr Brennan named Beauty’s Best, Feels Like Home, Keep De Rose and Caravan Rolls On. On receipt of the pre-race plan, Dr Brown spoke to Dr Brennan by phone. He said that a few of the horses he had treated with the drip at the O’Brien stable at Flemington had sweated up while the drip was being given and that she was not to worry about that if her horses did the same. He told her to come to Flemington to pick up drugs from Ms Potter who would make up the drips. This was the only time Dr Brown collected pre-made drips as normally she would pick up drugs and bags of fluids and make up the drips herself.
  2. Dr Brown described two occasions when horses reacted to the use of drips as directed by Dr Brennan at the O’Brien stable during the Spring Racing Carnival in 2014.
  3. The first occasion was with Feels Like Home on 30 October 2014. Dr Brown said that as she was running the drip the horse started to sweat up and show small peripheral vacuo dilation. As a result, Dr Brown completed the drip at a slower rate. The horse did not get any worse so she continued the drip at the lower rate and the horse recovered quickly. In a text message to Dr Brennan, she described Feels Like Home as having ‘sweated up like crazy. All veins popping out of her skin.’[32] Dr Brennan’s response to Dr Brown’s message was ‘Sweet, thanks’.[33] He did not comment further or call her.
  4. The second occasion was with Keep De Rose on 1 November 2014. She described this horse’s reaction as appearing to have a mild case of synchronous diaphragmatic flutter, or ‘the thumps’ because it looked like her muscles were twitching on her flank. When Dr Brown reported Keep De Rose’s reaction to Dr Brennan, he did not reply but they discussed the reaction later and Dr Brennan told her not to worry about it.
  5. After the reactions of these two horses, Dr Brown disposed of the remaining drips because she was concerned about them. She discussed the drips with Dr Brennan on multiple occasions. She also spoke to Ms Potter and asked her what was in the drips. Ms Potter said that she had seen Dr Brennan put something else from a bottle into one of the drips given at the O’Brien stable at Flemington. Dr Brown discussed the drips with Dr Vallance, who said Dr Brennan had not asked him to give any of the drips and he did not know what was in them.

Dr Amy Kelly

  1. Dr Kelly was interviewed by the NSW Stewards and by the Victorian stewards. In her interview with the NSW Stewards in March 2015, she gave evidence of a conversation with Sam Kavanagh after the NSW Stewards found a bottle in his house. He told her that he got the bottle from Dr Brennan. He told her it did not have a Flemington Equine label on it. At this stage Dr Kelly said she started to become concerned about what was going on. She said the fact that the bottle came from Dr Brennan was fairly alarming to her. Sam Kavanagh said that the bottle was posted to him and that Dr Brennan had assured him that it was not cobalt. Sam Kavanagh told her in a number of conversations that Dr Brennan had said the vitamin complex would be fine.
  2. Dr Kelly said that on 24 February 2015, Dr Church rang her to advise that Sam Kavanagh had a positive to cobalt. He told her that Dr Brennan and Mr Corby did not want to call her because they thought their phones were bugged. He told her it was all going to be fine. Dr Kelly asked about the bottle that Dr Brennan had given to Sam Kavanagh. She said in evidence that she thought Dr Church was not aware that she knew about the bottle. Dr Church told her that the bottle was fine, it was just a vitamin thing. When Dr Kelly responded that if it were a vitamin thing, she would have been selling it, Dr Church responded that he had only just found out about this too, and it was best that she forget she knew about the bottle.
  3. Dr Kelly also gave evidence of a conversation with Sam Kavanagh on 25 February 2015 in which he told her that Dr Brennan told Kavanagh that he had a new drip which was great and definitely fine. When he gave the drip to Magicool the horse had a reaction and Kavanagh then told him he did not want any more of it.
  4. Dr Kelly said Dr Church called her again on 26 February 2015. He told her that Sam Kavanagh would have to do time. Dr Kelly questioned what would happen to Dr Brennan, and Dr Church told her that Dr Brennan did not know it was cobalt. She told him that he needed to tell Dr Brennan to own up to what was happening, because he was going to bring everyone else down. Dr Church said they could not do that, insurance would not cover it and the practice would go under. He said he did not know Dr Brennan was selling the vitamin complex. When asked why Dr Brennan would do it, Dr Church replied that he was under a lot of pressure from Kavanagh to get winners.
  5. Dr Kelly said that Mr Corby called her later that evening, and when she did not answer, sent a text message instructing that no one was to go to Sam Kavanagh’s stable from the practice. She spoke to Mr Corby the following morning. He told her that Sam Kavanagh was a liar and a desperate man, and he had told the stewards he got some stuff from Dr Brennan.
  6. Dr Kelly said that Kelly Fawcett, Sam Kavanagh’s fiancée, told her that Mr Corby had flown up to Sydney under the pretence of providing literature proving that cobalt can be pushed above the threshold by the accumulation of vitamin injections. However, the real purpose was to silence Ms Fawcett and Sam Kavanagh so that they did not tell the stewards where they got the bottle from. Ms Fawcett told Dr Kelly that they had already spent two hours with Mr Corby when he was in Sydney when Dr Kelly saw Mr Corby, but they all pretended they had not seen each other.
  7. Dr Kelly told the NSW Stewards that Sam Kavanagh told her that Dr Brennan got the bottle from Dr Matthews. Sam Kavanagh said that when he was in Queensland with Dr Matthews, Dr Matthews told him that he had started giving horses 10ml of the vitamin complex and it improved the horses ‘out of sight’.[34]
  8. Dr Kelly was interviewed by the Victorian stewards in May 2015. In this interview, she recalled a conversation with Sam Kavanagh on 25 February 2015, immediately after he was interviewed by the NSW Stewards. She said that he was very stressed and told her that the bottle had been tested, and was pure cobalt. He described himself as a small piece in the puzzle, with the whole inquiry being geared at Flemington Equine. He told her he had been told to keep quiet by Dr Brennan, Mr Corby, O’Brien and Kavanagh – all of whom told him to stick to the story that someone had dropped off a bottle, and that he had been told to use it as an appetite stimulant and he had been giving it to his horses in low doses over the tongue. Sam Kavanagh told her he felt like he had no option.

Dr Emma Wood

  1. In her evidence before the Tribunal in August 2016, Dr Wood said that she treated Bondeiger during the 2014 Spring Racing Carnival following a call from Dr Brennan. She collected a drip from the Flemington office of the clinic and administered the drip at the O’Brien stable. Dr Brennan advised her that he had already billed the drip out. As a result, Dr Wood did not record the administration of the drip in the trainer’s treatment diary.

Samantha Potter

  1. Ms Potter was interviewed by the Victorian stewards in January 2014, and in March and May 2015She advised that she ordered and maintained the supply of drugs at the clinic. She prepared drips administered to horses trained by O’Brien and Kavanagh as directed by Dr Brennan. She was employed full time during the 2014 Spring Racing Carnival. She.
  2. During her interview in March 2015, Ms Potter said that on a handful of occasions she had seen Dr Brennan put a substance or medication into a drip after she had made it up. The bottle Dr Brennan used was an orange 100mL bottle marked ’Vitamin and Mineral’. She did not think anything of this at the time.
  3. In her interview in May 2015, Ms Potter confirmed that she had sent one or two lots of the vitamin complex bottle to Sam Kavanagh as instructed by Dr Brennan. The product was not ordered by the clinic; it came directly from Dr Brennan and she did not know from where he got the bottles. Ms Potter said she had sent possibly three bottles to Sam Kavanagh wrapped in bubble wrap by express post. The postal tracking book recording the outgoing mail had gone missing a couple of weeks later. She described the postal book as an A4 notebook which recorded the date, address and content of mail and any stickers.
  4. In evidence to the Tribunal, Ms Potter stated that it was Dr Brennan who came up with the quantities of the constituents of the drips. She agreed that Drs Wood and Brown collected a drip from her on 30 October 2014. She also confirmed that there was a dark brown/orange 100mL bottle in Dr Brennan’s fridge in the rear of his car. She had seen Dr Brennan draw the substance out of this bottle. She had never seen the bottle before or been asked to order it. When she saw the bottle at O’Brien’s stable, she was doing the rounds with Dr Brennan and she saw him draw up 5mL in a 10mL syringe.
  5. Ms Potter confirmed that she had been asked by Dr Brennan to post bottles similar to that in Dr Brennan’s fridge to Sam Kavanagh, and he told her the bottle was expensive, and not to let it break. She said that she recorded the despatch of the bottle in the postage book that had gone missing.
  6. As an equine nutritional adviser, she met with O’Brien to discuss a dietary plan for a horse, and what he would like to do. Ms Potter confirmed that O’Brien and his stable were completely professional. He did not ask her to source any illegal products or the like.

Dr Ian Church

  1. Dr Church gave evidence before the Tribunal in August 2016. When asked about the vitamin complex bottle, he said that the bottle was a product of a type that would not have been used by the clinic. It was unusual and suspicious; there was no manufacturer; the label said that the product was to be administered orally and yet it was a 100mL bottle with a top on it that would probably be used for injections not oral administration. The constituent parts were not set out on the bottle.
  2. Dr Church said that in February 2015, Sam Kavanagh was proposing to reveal to the NSW Stewards that the bottle had come from Dr Brennan. This concerned Dr Church greatly. On 24 February 2015, he spoke to Dr Kelly to see what she was going to say in relation to the vitamin complex bottle, and to placate her as she was fairly angry. Dr Church agreed that he probably told Dr Kelly that it was best if she forgot about the bottle.
  3. Dr Church said that he regretted that he had said to Dr Kelly that she should forget that she had ever seen the bottle, and that he had acquiesced when Dr Brennan misled the stewards. He had no memory of speaking to Dr Matthews at all about the vitamin complex. He agreed that if Dr Brennan had told him the story about Dr Matthews before Dr Matthews employment ended in March 2015, he would have raised that matter with Dr Matthews.
  4. Dr Church said that initially Dr Brennan told him that the bottle contained a special vitamin injection and he had sourced it from Dr Matthews who vouched for it as a useful product for horses. He said Dr Brennan said a lot of Dr Matthews’ harness racing clients had used the product over the previous 12 months and none had any issues with positive swabs.
  5. Dr Church said that from March to June, and the first part of July 2015, he knew that Dr Brennan was not telling the full truth to the stewards. Dr Brennan told Dr Church that while Dr Matthews was at Kavanagh’s stable on a Sunday, Kavanagh asked Dr Matthews if he had any new products, and Dr Matthews said there was ‘this vitamin stuff’ that a lot of the harness racing trainers had been using and they had been very happy with it. When Dr Brennan went to Kavanagh’s stable on Monday, Kavanagh asked him to source some of it. Dr Brennan then asked Dr Matthews, who sourced some of the vitamin complex. Dr Church said he did not know any further details about it.
  6. Dr Church said that Dr Brennan told him that he told O’Brien and Kavanagh that he did not know what was in the vitamin complex. He told Dr Church that he called Mr Bova who told him it would it would cost between $10,000 and $100,000 to get the contents of the bottle completely analysed. Dr Brennan told Dr Church that O’Brien and Kavanagh decided that this was too expensive, and that they would just use the product.
  7. Dr Brennan told Dr Church that following the discussion with Mr Bova, he went back to Kavanagh and said that it was going to cost $10,000–$100,000. There were at least two conversations with Kavanagh before Kavanagh agreed to use the substance. Dr Brennan did not tell Dr Church how he introduced the bottle to O’Brien, or that O’Brien had paid him any money.
  8. Dr Church agreed that the stables of O’Brien and Kavanagh were big in the context of Dr Brennan’s practice. They were the two biggest stables by number of horses. Dr Church was overseas from the start of May 2015 and resumed work on 1 August 2015. He was away when Dr Brennan attended the stewards on 20 July 2015.
  9. Dr Church agreed that when he left, he had an understanding with Dr Brennan that the ‘line’ to be taken about this matter was that the clinic had nothing to do with the bottle. Dr Brennan did not give notice to Dr Church that he was going to the stewards on 20 July 2015.
  10. Dr Matthews’ employment with the clinic ended on 1 April 2015, however he had stopped working at the clinic a number of weeks before that. Dr Church did not raise the issue of the bottle with Dr Matthews.
  11. In cross-examination, Dr Church agreed that if a veterinarian said to O’Brien or Kavanagh that they should try a product costing $1,000 a bottle, but the bottle’s contents were unknown and there were no promises, you would expect to be thrown out of his stable.
  12. Dr Church confirmed that Dr Brennan told him that he did not start this; it was Dr Matthews who approached Kavanagh and Kavanagh then approached Dr Brennan; Dr Brennan was the innocent agent of Kavanagh as a result of what Dr Matthews had told him. As a result of this Dr Brennan went to see Dr Matthews. Dr Brennan had a discussion with Kavanagh about getting it tested.
  13. Dr Church said that Dr Brennan had betrayed the trust that he had in him. Dr Brennan had consistently said that he believed the bottle was vitamins, in fact concentrated B12.

Aaron Corby

  1. Mr Corby was interviewed by stewards on four occasions. In his interview on 25 May 2015, he was asked about his trip to Sydney on 17 February 2015. He explained that Sam Kavanagh and Ms Fawcett picked him up from the airport, and they went and had brunch at which they discussed Sam Kavanagh’s concerns over caffeine and also the scientific evidence about cobalt. Mr Corby met with Dr Kelly later that day but did not disclose his earlier meeting with Sam Kavanagh and Ms Fawcett.
  2. At the hearing before the Tribunal, Mr Corby said that he spoke to Sam Kavanagh when Sam Kavanagh was at his solicitor’s office on 25 February 2015. Sam Kavanagh was distraught and made accusations that the vitamin complex bottle had come from Dr Brennan. Mr Corby told Sam Kavanagh that was not what he had heard, and then it was backwards and forwards along those lines. At the end of the phone call, Mr Corby said to Sam Kavanagh ‘You’ve got to do what you’ve got to do, tell the truth’.[35]
  3. In another interview with the stewards later in May, Mr Corby was asked why Sam Kavanagh would tell the stewards that he got the vitamin bottle from the clinic and he responded ‘Try and get himself off the hook, He figures that he’ll get a lesser sentence or somehow improve his position by pointing the finger at somebody else’.[36] Mr Corby said that he had never had a discussion with Dr Brennan about the vitamin complex bottle or its contents. Mr Corby was asked about the postage book recording items sent from July 2012 to March 2015 and he responded that it would have been thrown out once it was completed.
  4. At an interview with the NSW Stewards in June 2015, Dr Brennan and Mr Corby were represented by the same barrister. Dr Brennan denied sending the bottle to the Sam Kavanagh stable. In his evidence before the Tribunal on 5 August 2016, Mr Corby said that he did not know at that time that Dr Brennan’s answer was false and he was lying to the stewards. Mr Corby told the Tribunal that he became aware that Dr Brennan had arranged for the bottles to be sent to Sam Kavanagh on or about 20 July 2015.
  5. Mr Corby said that he was previously employed by O’Brien as Racing Manager for four years finishing up eight years ago. He liked and respected O’Brien. He had known Kavanagh for 10–12 years, and always had a good relationship with him socially.

Dr Adam Matthews

  1. Dr Matthews was interviewed by the stewards in January and April 2015. In his interview on 20 January 2015, he said that he had never used cobalt chloride prior to the introduction of the new rule regarding cobalt on 14 April 2014. To his knowledge there had not been any purchase of cobalt chloride through or outside the clinic, and he had never been approached to use cobalt chloride.
  2. In his interview with the stewards on 30 April 2015, Dr Matthews said that as far as he was concerned there was no use of cobalt in the clinic. He said that he had not seen the vitamin complex product before. He had never seen anyone at the clinic use the product.
  3. Dr Matthews was interviewed by the NSW Stewards by teleconference on 21 July 2015 while he was overseas. He said he had no personal relationship with Sam Kavanagh. He was not aware of the vitamin complex bottle and had not seen the bottle before it was shown to him by the Victorian stewards. He said that he did not provide it to Dr Brennan or speak about it with Sam Kavanagh at the Magic Millions Sales.
  4. When Dr Brennan’s account of Dr Matthews’ role in obtaining bottles of vitamin complex was put to Dr Matthews, he described it as totally false. When asked why Dr Brennan would make false allegations about him, he responded that he was no longer at the clinic and had a disagreement with Dr Brennan and another partner. Dr Matthews is proceeding with legal action against them.
  5. Dr Matthews said that 21 July 2015 was the first time he had heard this account by Dr Brennan. He said that none of his trainers has had any positive test results. He said that he had never used the vitamin complex, or supplied it to Dr Brennan or Sam Kavanagh, nor had he sourced products from Canada. He said that Dr Brennan was lying when he said this. He was aware that Dr Brennan was using pre-race drips during the 2014 Spring Carnival. He saw pre-made drips in the back of Dr Brennan’s car which were ‘reddy, kind of orangey in colour’.[37] Dr Matthews gave evidence that Dr Brennan said that he was using a new drip at the start of Spring. He said Dr Brennan was secretive about it and no one knew what was in it.
  6. Dr Matthews said that his phone records would show that he had never spoken to any manufacturer in Canada.
  7. Dr Matthews said that he had never had a conversation with Sam Kavanagh about vitamin complex, later adding ‘Who knows what Tom has told him’.[38]
  8. On 11 February 2016, Dr Matthews gave evidence before the Appeal Panel of Racing NSW.[39] He said that the first time he became aware of vitamin complex was his second interview with the Victorian stewards. He said that Dr Brennan’s evidence that he had sourced the material from Canada was completely false. He had given his phone and iPad to the stewards straight after the inquiry. He had never had any contact with Canada whether by email, fax or other means.
  9. Dr Matthews described Dr Brennan as a mentor to him. He said he always went to Dr Brennan if he had major issues, and he trusted him.
  10. In his evidence before the Tribunal on 21 September 2016, Dr Matthews said that he was a paid employee of the clinic in early September 2014. He was not a director or shareholder of the clinic. He worked under the direction of Dr Brennan and Dr Church. A junior partnership agreement had been prepared but not signed.
  11. Dr Matthews said that he went to look at Dr Brennan’s house after Dr Brennan bought the house. He did not recall any occasion when he went to the back of Dr Brennan’s house, and he did not take any veterinary products with him on any occasion that he might have gone to Dr Brennan’s house. He said that he did not and would not supply a bottle containing or possibly containing cobalt to Dr Brennan.
  12. When Dr Brennan’s evidence regarding a conversation with Dr Matthews in about September 2014 was put to Dr Matthews, he denied having a discussion with Dr Brennan about a product that he had been using with success in the harness racing industry. He explained that he used a drip based on what a horse’s bloods said, he did not use Ferrocyl or VAM and used vitamin C occasionally.
  13. Dr Matthews said that he did not get a product from Canada. His only contact with Canada was his sister-in-law, who he thought came from Canada. He first heard that Dr Brennan was claiming Dr Matthews got the vitamin complex from Canada when he read it in the newspaper. He said that Dr Brennan was using him as a scapegoat.
  14. Dr Matthews said he saw drips being made up for Dr Brennan for the Spring Racing Carnival in 2014 with vitamins that the clinic did not commonly use or stock such as Ferrocyl and VAM.
  15. Dr Matthews said that Dr Brennan called him on the day that O’Brien and Kavanagh first received cobalt positives. Dr Matthews was on holidays as the Magic Millions had just finished. Dr Brennan first asked about the Magic Millions catalogue and later in the day, asked about VAM and the contents of the drips. Dr Brennan was worried that VAM had caused the positives. Dr Matthews said that he knew that Dr Brennan was providing drips for trainers, but didn’t know the specific trainers.
  16. Dr Matthews was asked about his attendance at Kavanagh’s stable on 25 October 2014. He explained that he was on duty, and Magicool suffered a low grade spasmodic colic. No drugs were used that would limit the horse from racing the following week in the Victoria Derby, and Magicool subsequently raced in the Derby. Dr Matthews said that he was there for a few hours to ensure the horse was 100% fine. He said the horse was not sweating profusely. Dr Matthews was in frequent contact with Dr Brennan while at Kavanagh’s stable, and was taking instructions from Dr Brennan on the treatment for Magicool.

Nick Bova

  1. Mr Bova is a pharmacist and the owner of Bova Compounding Pharmacy in New South Wales. In his interview with the stewards in January 2015, Mr Bova said that he had cobalt chloride in stock but had never sold products containing cobalt to the clinic. His business could only supply to veterinarians.
  2. Mr Bova also gave evidence before the Racing NSW Inquiry in August 2015. He recalled a conversation with Dr Brennan around 20 September 2014 in which Dr Brennan asked how he could test a product to find out exactly what was in it, and the cost of such a test. Dr Brennan said that it was a liquid product and that he didn’t know what it was. Mr Bova arranged for one of his staff to speak to the people who undertook tests. The response was that if you do not know what you are testing for, the price range can be very wide. Mr Bova got back in contact with Dr Brennan and told him the price ranged from $10,000–$100,000.
  3. In response to a question, Mr Bova said that if he knew what he wanted to test for, the cost would be a few hundred dollars. Testing for cobalt would be a few hundred dollars.
  4. Mr Bova said that he was unaware of any supplier in Canada supplying a vitamin product with cobalt in it into the Australian market. He said that cobalt chloride was not an expensive product; a 100mL injectable bottle of cobalt chloride, made sterile, would cost around $40. He said that the actual material would cost considerably less, but a lot of labour goes into making the product sterile.

Sam Kavanagh

  1. Sam Kavanagh was interviewed by the NSW Stewards and Victorian Stewards in February, March, May, June, August and October 2015, and by the NSW Appeal Panel in February 2016. He also gave evidence before the Tribunal hearing in August 2016. Significant evidence from each interview is set out separately.

Sam Kavanagh’s interview on 25 February 2015

  1. In his interview with the NSW Stewards on 25 February 2015, Sam Kavanagh was questioned about the vitamin complex bottle found in the kitchen area above his stable which was found to have a heavy concentration of cobalt. He stated that the vitamin complex bottle was dropped off as a sample by a vet, and later named the vet as Dr Brennan. He said that it was given as an oral tonic administered in 5mL doses over the tongue. He said he had not used it in a drip. Sam Kavanagh said it was organised through the clinic and he had discussed the vitamin complex with Dr Brennan, who told him the vitamin complex did not contain cobalt.

Sam Kavanagh’s interview on 30 March 2015

  1. In this interview with the NSW Stewards on 30 March 2015, Sam Kavanagh was questioned about his second phone. He stated that he had been advised by Mr Corby to get a second phone in case his phone was tapped. He had later disposed of it.

Sam Kavanagh’s interview on 19 May 2015

  1. Sam Kavanagh and Ms Fawcett were interviewed by the Victorian stewards on 19 May 2015. Sam Kavanagh said that he received the bottle of vitamin complex from Dr Brennan in about September or October 2014. He received two bottles; one was unopened and unused and it was given to the NSW Stewards.
  2. Sam Kavanagh explained that the vitamin complex was to be given after hard gallops. It was $1,000 a bottle, or $50 a drip. Sam Kavanagh said he asked Dr Matthews about the product as well. He explained that he spoke to Dr Matthews regularly. He could not recall the first time he spoke to Dr Matthews about the vitamin complex. He said Dr Matthews told him that it was just vitamins and was ‘absolutely within the rules’.[40]
  3. Sam Kavanagh said that he had a conversation with Dr Matthews at the Magic Millions sales in Queensland. He had stopped using the vitamin complex at this stage and told Dr Matthews he did not know about the vitamin complex. Dr Matthews said that it was better to use 10mL not 5mL.
  4. Sam Kavanagh explained that he stopped using the vitamin complex at the end of December 2014 after the horse Midsummer Sun had a reaction to the drip. He said the horse shook and sweated one night and was stressed.
  5. He agreed that he purchased the vitamin complex through Dr Brennan and the clinic sent it up by post; the bottle was not dropped off to him as a sample as stated at his interview on 25 February 2015. He said he was told to give the previous story by the clinic.
  6. During this interview, Ms Fawcett described what happened during Mr Corby’s visit to Sydney on 17 February 2015. She said that Mr Corby told them to get rid of their phones and computers, and not to say that the bottle came from the clinic. They were told not to panic, it was all vitamins. She said Mr Corby did not want any of the other practice staff to know that he had seen them, so when they met Dr Kelly, they pretended they had not met Mr Corby earlier in the day.

Sam Kavanagh’s evidence at the Racing NSW Inquiry on 9 June 2015

  1. At the Racing NSW Inquiry on 9 June 2015,[41] Sam Kavanagh reiterated that two bottles of vitamin complex were sent to him by the clinic after a discussion with Dr Brennan. Mr Tony Hartnell, the lawyer assisting Sam Kavanagh, said that he was involved in a conversation on speaker phone with Sam Kavanagh, Dr Brennan and Mr Corby in Mr Hartnell’s office in which Sam Kavanagh told them he would be telling the NSW Stewards where he got the bottle from. After this conversation, Sam Kavanagh had a second conversation with Dr Brennan and Mr Corby to which Mr Hartnell was not a party. Mr Hartnell said that when he got off the phone, Sam Kavanagh told him that they had threatened defamation proceedings against him if he mentioned Dr Brennan or the clinic, and that they were also going to bring proceedings to bankrupt him in relation to his existing debt to the clinic.
  2. When questioned about this conversation, Sam Kavanagh added that Dr Brennan and Mr Corby also said that naming the clinic would have a negative effect on his father’s case in Melbourne because he also had a cobalt positive. Naming the clinic would be sentencing them and everybody. They told him he did not have much room to move because he owed the clinic a lot of money and they were going to deny all accusations. He said he was asked to put forward a different explanation, namely that the sample had been dropped off by another vet that Dr Brennan knew the NSW Stewards were looking at.

Sam Kavanagh’s evidence at the Racing NSW Inquiry on 18 June 2015

  1. Sam Kavanagh was called to give additional evidence at the Racing NSW Inquiry on 18 June 2015. He said that in the weeks following the supply of the bottle in September or October 2014, he spoke to Dr Brennan. They used to talk every day. Sam Kavanagh explained that other stables for which Dr Brennan did the work were performing particularly well. He was under the impression that Dr Brennan had produced a cutting edge product so he asked if other trainers were using it. He said Dr Matthews told him he had several other trainers using it, it was a safe vitamin product, and it was a better product with a double dose.

Sam Kavanagh’s evidence at the Racing NSW Inquiry on 4 August 2015

  1. In further evidence before the Racing NSW Inquiry on 4 August 2015, Sam Kavanagh said that in Dr Brennan rang him and told him that he had a multi vitamin drip in about September 2014. He told him he could not guarantee that it would help or that it was worth $1,000 because it was a new product. He assured Sam Kavanagh that it was not a prohibited substance. Sam Kavanagh said Dr Brennan told him it was a refined form of B vitamins to aid horses’ recovery, as a ‘pick-me-up’ for post gallop or recovery. Sam Kavanagh said that he did not know at the outset that the vitamin complex came from Dr Matthews.
  2. Sam Kavanagh was asked about the telephone conversation he had with Dr Brennan and Mr Corby in Mr Hartnell’s office on 25 February 2015. He said that the evidence he gave about this on 9 June 2015 was truthful. He added that Mr Corby told him if he named the clinic it would impact on Sam Kavanagh financially. Mr Corby also said that the clinic would vigorously deny the allegations, there was no paper trail and Sam Kavanagh would be opened up for defamation. Sam Kavanagh was told that if he brought the clinic into it, it would directly implicate the Melbourne trainers, O’Brien and Kavanagh.

Sam Kavanagh’s evidence at the Racing NSW Inquiry on 28 October 2015

  1. Sam Kavanagh gave evidence before the Racing NSW Inquiry regarding the charges against Dr Matthews on 28 October 2015.[42] He said that most major products and items were sent up through Dr Brennan because he had to approve everything first as Sam Kavanagh was in debt to the clinic.
  2. Sam Kavanagh said that when Dr Brennan learnt that he had not thrown out the bottle, he was angry and told him off. Mr Corby told him not to panic because cobalt itself was not prohibited, it was only prohibited if it was over the threshold. But he still told Sam Kavanagh not to disclose where he got the bottle.
  3. Sam Kavanagh said that he had blind confidence in Dr Brennan, who had told him it was a complex vitamin that Dr Brennan had paid top dollar for. He said he assumed Dr Brennan was correct. Although he would not expect Dr Matthews to cause him to get a positive test result, he did not have the same confidence in Dr Matthews. He said he had a very close relationship with Dr Brennan and would have trusted him with his life.
  4. Sam Kavanagh said he thought Dr Brennan had obtained the vitamin complex from a proper supplier or made it himself. It was in around December 2014 that Dr Brennan told Sam Kavanagh that the product came from Dr Matthews.

Sam Kavanagh’s evidence before the NSW Appeal Panel on 8 and 9 February 2016

  1. Sam Kavanagh gave evidence before the NSW Appeal Panel on 8 and 9 February 2016.[43] He said that Dr Brennan first mentioned the drips to him in a phone call in September 2014. He told Sam Kavanagh that the drip was just vitamins, was legal, and was used for recovery after gallops. He said there were a few trainers using it and they were doing really well.
  2. Sam Kavanagh said that he trusted Dr Brennan. The bottle’s packaging did not bother him as Dr Brennan had a lot of products made up by compounding. The payments of $1,000 for the bottles were recorded in his books. He understood his father and O’Brien were using the product, as well as other trainers.
  3. Sam Kavanagh said that when he learnt how high the concentration of cobalt was, he was extremely angry. He said he had some heated conversations with Dr Brennan. Dr Brennan told him to tell the NSW Stewards that the bottle had been dropped off by a vet who he knew the stewards were looking for regarding cobalt.
  4. On 2 March 2015, Sam Kavanagh met with his father and Matt Rudolph, who at the time was a senior racing official at the Australian Turf Club, at the Lord Dudley Hotel (‘the Lord Dudley meeting’). Mr Rudolph told him that Dr Brennan would not have sold him cobalt, and ‘throwing people under the bus’ would make it very difficult for him to return to the industry. Sam Kavanagh agreed that Mr Rudolph was putting pressure on him to lie.
  5. Sam Kavanagh named Dr Brennan as the source of the vitamin complex on 25 February 2015. He did not mention Dr Matthews until 13 May 2015 at which point he told the stewards he had conversations with Dr Matthews about the vitamin complex in January 2015. He was aware that Dr Matthews was using the product because they discussed the dosage. He said he was under the impression that Dr Matthews had supplied the vitamin complex.

Sam Kavanagh’s evidence before the Tribunal on 8–10 August 2016

  1. Sam Kavanagh gave evidence to the Tribunal on 8–10 August 2016. He was asked about how he was first introduced to the vitamin complex, and responded that Dr Brennan called him at the end of September 2014 and told him he had found a vitamin drip that the other trainers were using. He told Sam Kavanagh that it was good for the horses, their appetite and their well-being, and was used regularly at other stables with success. Sam Kavanagh said he told Dr Brennan that if Dr Brennan thought it was good, he would give it a try. He asked if it had a withholding period or there was anything prohibited in it and Dr Brennan said there was not, it was just vitamins and was totally safe and a genuine product.
  2. Sam Kavanagh described his relationship with Dr Brennan as like an older brother; he used to talk to him three or four times a day and they would talk about everything.
  3. Regarding the cost of the vitamin complex, Sam Kavanagh said that the price of $1,000 for a bottle covered twenty drips meant $50 a drip. He was asked about the cost of drips and advised that he purchased some drips from the feed store rather than the vet, and the cost depended on the drip. A Darrow’s drip would cost around $15 and amino drips were over $50 per drip.
  4. Sam Kavanagh said on both occasions that he purchased the vitamin complex, it was recorded in the stable books of account; there was no attempt to hide it. He trusted Tom and thought it was a complex vitamin constitution in the bottle.
  5. Sam Kavanagh confirmed that the person who supplied him with the vitamin complex bottle was Dr Brennan, not Dr Matthews. He said that he asked Dr Matthews whether the product was okay because he knew he was using it too.
  6. Sam Kavanagh said that after news of O’Brien’s and Kavanagh’s cobalt positives, Dr Brennan told him not to use the vitamin complex bottle and that they needed to check to make sure it was not lifting cobalt levels. Sam Kavanagh told Dr Brennan that he had stopped using it anyway.
  7. Sam Kavanagh said that on 4 February 2015, after he was notified that his horse Midsummer Sun had a caffeine positive, the NSW Stewards found a bottle of vitamin complex in a kitchen cupboard in a unit above his stable. He had another bottle of unopened vitamin complex in the feed room which he later provided to the NSW Stewards. He was subsequently notified of a cobalt positive for Midsummer Sun on 16 February 2015. On 25 February 2015, the NSW Stewards advised him that the vitamin complex bottle they had found in his kitchen cupboard had a very high concentration of cobalt.
  8. Sam Kavanagh said he stopped using the vitamin complex because of the reaction of Midsummer Sun. He said that he sought and was provided with reassurance from Dr Brennan that there was no prohibited substance on a couple of occasions. He sought this reassurance because he was always very careful, and Ms Fawcett was not happy with the labelling on it.
  9. Sam Kavanagh recounted Mr Corby’s visit to him in Sydney on 17 February 2015. He said Mr Corby told him to forget about the bottle, it was irrelevant, and he should not tell the NSW Stewards that he got the bottle from the clinic or from Dr Brennan. He showed him papers which argued that the cause of the cobalt positives was the VAM that was in the vitamin drips and that the vitamin complex was irrelevant. It was later that Dr Brennan suggested say that a travelling vet dropped the vitamin complex off.
  10. Mr Corby told Sam Kavanagh to throw his first phone in the Parramatta River, and get rid of his computer and iCloud. He reiterated that after Mr Corby saw himself and Ms Fawcett, he had a meeting with Dr Kelly, but when they all met later that day, Sam Kavanagh and Ms Fawcett pretended that they had not met that morning.
  11. Sam Kavanagh said that he had three phone conversations with Dr Brennan before he went to the stewards on 25 February 2015. In the first conversation, he told Dr Brennan that the bottle had tested positive to cobalt. He said he was angry when he got these results.
  12. Sam Kavanagh explained that there was a second conversation at Mr Hartnell’s office in which Dr Brennan, Mr Corby and Mr Hartnell were also involved. Then there was a third conversation from which Mr Hartnell was excluded in which Dr Brennan and Mr Corby told him that if he put them in, he was sentencing everybody. They would deny it every step of the way and sue him for his debts and bankrupt him.
  13. Sam Kavanagh said that when the vitamin complex was found in his kitchen cupboard by the NSW Stewards, Dr Brennan said it would not matter because it was only vitamins and VAM had caused the problems. He said they fell out on 16 February 2015 when the test results were released showing the bottle had cobalt in it.
  14. Sam Kavanagh said that after he named Dr Brennan as the source of the vitamin complex on 25 February 2015, Dr Brennan and Mr Corby put him under significant pressure. He said they had pleaded their innocence to O’Brien and Kavanagh and said that it wasn’t their product that had caused their problems. He said that Dr Brennan and Mr Corby poisoned his credibility and blamed him to get themselves out of trouble.
  15. When Dr Brennan’s evidence regarding his conversations with Sam Kavanagh about disposing of the bottles was put to Sam Kavanagh, he said that he told Dr Brennan that he had stopped using the vitamin complex, not that he had gotten rid of the bottles. He said that originally he wanted to get the bottle tested and he asked a client who is a pharmacologist about it, but he could not afford to get it tested. He said the NSW Stewards found one bottle. He handed the other bottle, which was full, to the NSW Stewards at the start of February.
  16. Sam Kavanagh said that at this time, he still did not know whether it was the vitamin complex that caused the cobalt reading as Dr Brennan told him that they did not believe it was the vitamin complex. They believed it was the VAM in the drips. He thought Dr Brennan’s instruction to throw the bottle out was about Dr Brennan trying to cover himself. Dr Brennan presented him with a lot of documentation on how VAM and other products can lift cobalt levels.
  17. When questioned about the Lord Dudley meeting, Sam Kavanagh said that Dr Brennan had convinced Kavanagh that the bottle he had given the stewards was nothing to do with Dr Brennan. After the meeting, Sam Kavanagh sent a text message to Dr Brennan that said ‘Getting Matt Rudolph to risk his job when you told him lies. Smart play, mate. If my daughter grows up without a father, I hope you can’t sleep’.[44] He said he was enraged because his father did not believe him.
  18. Later in his evidence, Sam Kavanagh said when his father arrived for the meeting, Sam Kavanagh told him the truth about the where the bottle had come from. However his father asked him to explain the caffeine positive and he could not.

Danny O’Brien

  1. O’Brien was interviewed by the stewards in January 2015, February, May and July 2015. He also gave evidence to the RAD Board in December 2015 and the Tribunal in August and September 2016.

O’Brien’s interview on 14 January 2015

  1. O’Brien was interviewed by the stewards on 14 January 2015 following the cobalt positives in relation to Caravan Rolls On, Bondeiger and De Little Engine. After the certificates were read to him, he said he had no experience of how to administer cobalt, so he was stunned as to how the results came back well in excess of the threshold. He said he had no explanation and asked the stewards what and when would something be administered to cause a horse to go so high over the threshold.
  2. He said his knowledge of cobalt was not even basic and he had not followed the introduction of the law other than seeing there was a limit. He said he did not know how a horse would go close to the limit. Although he could give an intravenous injection, he had not given one for around five years; all intravenous treatment was done by the vet because it was too dangerous to have him or his staff doing it.
  3. O’Brien said that he had not had any discussions about cobalt with Dr Brennan or anyone else. When asked whether he had changed anything in relation to feed, supplements or medication, O’Brien said that he would have to ask Dr Brennan. He said the horses received pre-race and post-race drips. He said this was standard for runners. He said he would be calling Dr Brennan after the interview and asking him if there was something he could explain, because as far as he was concerned ‘everything that happens within the four walls of the stables is very much the same as it’s always been’.[45]
  4. The stewards mentioned a media release regarding Peter Moody, another trainer who received a cobalt positive. They asked O’Brien whether he had received any phone calls or information about Mr Moody or himself prior to the stewards arriving at his stable that morning. O’Brien said he had not.

O’Brien’s interview on 24 February 2015

  1. O’Brien was interviewed by the stewards on 24 February 2015 following a cobalt positive recorded by Bullpit.
  2. He said that Dr Brennan was the only person who could give the breakdown of the vitamin drips. When asked whether he was satisfied with the explanation Dr Brennan had given, O’Brien said:

Absolutely, yes ... Tom is only going to give regulated products that I agree with. He’s not going to be going rogue on me ... I just can’t imagine a vet of his stature doing something silly like that. We’re talking about proper racehorses. Like, Caravan Rolls On is owned by Sheikh Fahad.[46]

  1. He later said:

Cobalt chloride does not seem like a substance that you would – that a person who looks after their horses would properly would be wanted to get involved with the horse’s physiology at any stage. ... And I certainly don’t think a top-line vet of Tom Brennan’s stature would be – you know, not in our stable. He knows what our policies are and he’s just not that sort of person ... he wouldn’t be my vet if I thought he was like that.[47]

  1. O’Brien was asked whether there was a discussion with Dr Brennan as to the use of the vitamin drip. He said they were always looking to get more sophisticated with the horses’ recovery and they thought that the more fluids and more vitamins a horse had, the less it will have to replace after a race, making it more likely that the horse would recover quickly. He said that Dr Brennan was of the opinion that with intravenous (‘IV’) drips and supplementation, the horse should be in a better physiological position to take the race, and better recover for the next one.

O’Brien’s interview on 13 May 2015

  1. O’Brien was shown the vitamin complex bottle in his interview with the stewards on 13 May 2015. He said that he had seen many bottles in the back of vets’ trucks but not anything of this type. When informed that it had been confiscated from a stable and was high in cobalt, O’Brien said that he had been made aware of the whole Sam Kavanagh situation by Dr Brennan, and to some lesser extent by Kavanagh, however it was of no relevance to him.
  2. When questioned as to what he knew, O’Brien said that Dr Brennan had told him that Sam Kavanagh was in possession of unregistered, unlicensed products that he was conveniently trying to say came from the clinic. When asked whether he believed Dr Brennan, O’Brien said that he knew both people very well, and that he did not believe Sam Kavanagh.
  3. Regarding the drips, O’Brien explained that the use of drips was recommended by Dr Brennan. They had discussions all the time and he was aware that other stables had started to use pre-race and post-gallop drips and were still continuing with them so he thought it would be worth trying. O’Brien said that he did not get into the specifics of what was included in a drip. When questioned further he said they were supplements, electrolytes and vitamins. He said that Dr Brennan did not explain the exact recipe at the time. The drips cost $120.00 and the horses selected were horses that they could justify the cost on; better horses that were aiming for better races and bigger prize-money.
  4. O’Brien said that he was rarely present when Dr Brennan administered drips. Most vet work was done by the foreman and Dr Brennan. He had no concerns with the condition of horses receiving a vitamin drip and there were no adverse reactions. He was unaware of any problem experienced by Dr Brown with the horse Feels Like Home.
  5. When he was told that Ms Potter said she saw Dr Brennan add a substance from the vitamin complex bottle into a drip at his stable, O’Brien said he did not know Ms Potter and he did not believe that evidence. He said there were a hundred bottles in the back of every vet’s vehicle. He said it did not add up that Dr Brennan would knowingly use anything like that, it would be reckless.
  6. O’Brien said his position was simple: Dr Brennan suggested the horses get drips and he agreed to a trial. He never would have agreed if he knew that he was taking any sort of risk.

O’Brien’s interview on 21 July 2015

  1. At the commencement of the interview with the stewards on 21 July 2015, O’Brien said that he had been informed by Dr Brennan that the drips were definitely the reason why his horses had gone over the cobalt threshold. He said that he was not aware of that, and was also not aware that there was a product that was in any way, shape or form containing cobalt.
  2. He explained that at the start of Spring, Dr Brennan told him he thought he could help O’Brien’s horses’ recovery by implementing an IV drip regime. He started to trial this over the Spring on a select group of horses. O’Brien said that Dr Brennan specifically told him that there were no prohibited substances in the drips. They were supposed to contain vitamins, minerals and electrolytes, B12, VAM. O’Brien said ‘It was [Dr Brennan’s] recipe and he was very specific that there was absolutely nothing that would be any problem ...’[48]
  3. When told that Dr Brennan told RVL that he had indicated to O’Brien that there was an opportunity to get the drips tested, O’Brien said that he had no recollection of that. He said he had no recollection of Dr Brennan saying that there were no guarantees about this substance or these vitamins, and it would cost $10,000–$100,000 to get it tested. He said that Dr Brennan was just not the sort of person that would use a product knowing that it was a prohibited substance.
  4. When O’Brien was asked whether he made a payment himself for the items, he responded that Dr Brennan had told him that he’d add a cost for them on top of what would be billed out to the owners. O’Brien explained that he subsidises a lot of things in his stable, particularly if they are on trial, which these drips were. Until he was prepared to back the product and believed in it himself, he was not prepared to check out the complete cost to the owners. While there was a trial period, he would foot the bill. He had trialled other products on a similar scenario, and later gave an example of a trial of an algae supplement that had just concluded, which cost him $6,000–$8,000.
  5. O’Brien said that Dr Brennan was not specific about the costs. He said it would not be much. On 19 November, he asked O’Brien for $3,000 to cover the drips that had been used during the trial period. Dr Brennan told O’Brien that he was going to be out of pocket because of the trial and O’Brien would have to fund some of it.
  6. O’Brien said he first found out that the bottle of vitamin complex was administered to his horse on the morning of the interview. He said Dr Brennan told him that 5 mL from the vitamin complex bottle has gone into the drips. He said that until last night, he believed that the defence was to be that the VAM, Cophos and Ferrocyl had lifted the cobalt levels. They had done a lot of research and spent a lot of money on scientists who were adamant that it can cause a lift in cobalt levels.
  7. When it was put to him that Dr Brennan told RVL that he had said to O’Brien that he could not give any guarantees that was no prohibited substance in this product, O’Brien said that the possibility of the presence of a prohibited substance was not even brought up; Dr Brennan never ‘red-flagged’ any issues at all.
  8. When pressed as to why he had not mentioned the drip trial previously, O’Brien said ‘... as far as it was told to me, it was not an unknown substance. There was a recipe for his drips and obviously this is one of the parts of it.’[49] O’Brien said: ‘It never occurred to me to mention it’.[50]

O’Brien’s evidence before the RAD Board on 4 and 7 December 2015

  1. O’Brien gave evidence before the RAD Board on 4 and 7 December 2015. He said that anyone who knew him would not get the words out to offer him a product costing $1,000 that they could not vouch for and needed to be tested. As to accepting such an offer, O’Brien said:

it would be suicide for me to be even thinking along those lines, and it’s just not something I would even contemplate. People know me. They wouldn’t come near me with that sort of suggestion’[51]

  1. As to the drips, O’Brien said he was aware that a couple of stables used IV fluid replacement drips, however it was not something he had ever used in his stable. He had probably given 10 drips in the whole 20 years. Dr Brennan approached him and suggested that he trial some IV vitamin and mineral supplement drips. The concept was that the IV got the fluids in more quickly straight after the gallop. O’Brien said that as he knew that veterinary work was expensive, when he agreed to the trial, he told Dr Brennan that if the trial was costing too much, he was happy to put in some money. No actual figures were discussed.
  2. O’Brien did not discuss the specific cost with Dr Brennan before he requested $3,000 in the middle of November 2014. Dr Brennan made the request in the morning at the O’Brien’s stable and O’Brien agreed to transfer the money, which he did by his phone later that day. He used the only account he had access to; all the business accounts are run out of the office and Dr Brennan seemed like he wanted the money that day.
  3. As to the ingredients of the drip, there was not a specific discussion but O’Brien said he understood the drip was going to be electrolytes, minerals and vitamins. He said at the time, he was interested in the concept of IV replacement and he trusted that his vet would be far more sophisticated in his knowledge of what specific vitamins and electrolytes should be in the drip, but it was very much the concept of an IV drip with vitamins, electrolytes and minerals.
  4. O’Brien said that he only had two conversations about cobalt prior to 14 January 2015. One was with Dr Brennan about the use of cobalt in horses in South Australia where horses were not as stringently regulated as in Victoria. The other was with Mr Bailey while they were in the mounting yard at Sandown.
  5. O’Brien said that although he knew the rule had come in, he did not know anything else about cobalt. In the course of his conversation with Dr Brennan, he learned that cobalt was carcinogenic and not something that could be handled. That was the only scientific knowledge he had. He knew nothing about the duration of its efficacy.
  6. Asked why he did not volunteer the information about the $3,000 in his interview on 14 January 2015, he said that he was not asked the question. He said that he had referred to pre and post-race drips, but did not use the word ‘trial’.
  7. O’Brien said that he had never previously had a positive for anything. In cross-examination, he denied that he lied in his interview on 21 July 2015 when he said that there had been no discussions with Dr Brennan about any new products. He explained that while drips were being trialled, the IV supplements were products that had always been around, it was just the way they were being used that was being trialled.
  8. Cross-examined about his payment of $3,000 to Dr Brennan, O’Brien said that on 21 July 2015 he was angry with Dr Brennan for a lot of things; he had just been told that his drips had had 5mL of vitamin complex in them. He said that Dr Brennan’s disclosure of the $3,000 payment was not the number one thing that he was angry with Dr Brennan about.
  9. O’Brien was asked about whether his answers to RVL on 14 January 2015 in relation to contact with Mr Moody prior to the stewards’ arrival at his stable were truthful. He said when Mr Moody called him, he did not know whether he was telling him the truth or if it was just a rumour. He said that later he had brought up the phone call with Mr Bailey. He said at the time, he did not tell the stewards about the phone call because he did not want to bring Mr Moody into his situation until he knew what had happened.
  10. Asked in further cross-examination whether the amount of $3,000 was a large amount to trial a new product in the context of his business, O’Brien said it was not given the breadth, scope and amount of drips that were given.

O’Brien’s evidence to the Tribunal 26 September–14 October 2016

  1. O’Brien said that he had been in the racing industry for 25 years and had never been charged with an offence against the Rules of Racing in relation to prohibited substances.
  2. Prior to 14 January 2015 when he was informed of the cobalt positives, he had complete faith in Dr Brennan. Nothing Dr Brennan had said or done indicated that his trust was misplaced.
  3. O’Brien said three or four weeks prior to the implementation of the drip trial, Dr Brennan told him that he had seen Chris Waller’s yard and they were using IV drips a couple of times per week to put vitamin and electrolyte supplements into horses. He said they were doing this post gallops and on a more systematic basis than what O’Brien was doing. He explained that Mr Waller was considered to be outstanding in the last four or five years, and is probably the best trainer in Australia.
  4. O’Brien explained that if the drips were going to be rolled out bi-weekly, he did not want it to become onerously expensive for his clients. It was going to be more expensive than the system he previously had in place, and he was happy to pay some of the costs out of his stable budget rather than bill the full amount to the owners.
  5. O’Brien said that there was no specific discussion with Dr Brennan about the ingredients of any IV drips.
  6. As to the payment of $3,000, O’Brien said that Dr Brennan asked him to contribute this amount. O’Brien saw this as a contribution to keep costs for the trial under control. He said in the scheme of the size of the operation, it was not a big expense. He used his personal account, which he could operate from home. Dr Brennan did not ask him to pay in cash.
  7. Regarding the phone-call with Mr Moody, O’Brien said that Mr Moody called him on 14 January 2015 and informed him that Kavanagh had a positive to cobalt and that he had heard a rumour that O’Brien also had a positive to cobalt as well.
  8. O’Brien said that the first time he saw a photograph of the vitamin complex bottle was in his interview with the stewards on 13 May 2015. At that time, he was aware that Sam Kavanagh was alleging that the bottles found in his stable complex had been provided by the clinic, and that the clinic, through Dr Brennan, said that was completely untrue. When questioned about this inconsistency, O’Brien said that it was not a dilemma for him; it seemed beyond doubt that Sam Kavanagh was not telling the truth.
  9. O’Brien said that prior to the meeting with Dr Brennan on 21 July 2015, he had no knowledge that the vitamin complex had been added to the drips. At the meeting, Dr Brennan said that he had not been honest as to the complete contents of his drips. O’Brien questioned him about this, and Dr Brennan told him he was sorry. O’Brien said that he was horrified and said to Dr Brennan: ‘You can’t be serious, Tom. We’ve come all this time and now you’re telling me the truth’.[52] He said that Dr Brennan told him it was something that Dr Matthews had suggested he trial.’
  10. O’Brien said that he had very little interaction with Dr Matthews and in the time following the positive results there had been no mention of him. Nor had there been any mention of Dr Matthews in the context of the move from using drenches to IV drips. O’Brien said that he was incredulous that Dr Brennan would use a product because Dr Matthews had vouched for it. Dr Brennan had previously made disparaging remarks about Dr Matthews. Dr Matthews was not seen as measured and professional as someone like Dr Brennan.
  11. During this conversation, Dr Brennan also told O’Brien that he had informed the stewards of the $3,000 payment. He said he told RVL O’Brien made a $3,000 contribution to the drip regime. He did not say it in the terms that it was later put to O’Brien, namely that it was $3,000 for three bottles at $1,000 each.
  12. O’Brien said that Bullpit received a vitamin drip on 17 December 2014. If it was known at that stage that other horses had gone over, the drip should not have been provided. O’Brien said that he should have been told that there was a problem in the stable with horses going over the threshold. O’Brien did not say that there was any obligation to notify him of Magicool’s positive. There was no contemplation of continuing the drips after 14 January 2015.
  13. In cross-examination, O’Brien said that he did not know what the cost per drip was. He agreed that he did not ask Dr Brennan what the cost would be for months.
  14. When the cobalt threshold was introduced on 14 April 2014, O’Brien said he read that there was a threshold of cobalt of 200. He said he could not recall any literature that came out at the time about it, but he would have read whatever literature was presented by RVL.
  15. O’Brien explained that the drip trial was about changing the method of delivery for vitamins; instead of using a saline drench they would use IV drips. When Dr Brennan’s evidence of the conversation he had with O’Brien about the vitamin complex was read to O’Brien, he said everything that had just been read out was a complete fabrication. He had a discussion with Dr Brennan about trialling IV drips, and Mr Waller was mentioned during this conversation. O’Brien later went back to Dr Brennan and told him in which they agreed to trial a drip program. O’Brien said it did not occur him at the time to think about informing owners, or to ask others in his stable about whether it was a good idea or do any research.
  16. When questioned, O’Brien agreed that he did not use the word ‘trial’ in his interview with the stewards on 14 January 2015.
  17. Apart from a discussion about it not being too expensive for the owners, O’Brien did not ask Dr Brennan about the cost of the drips. He did not look at the vet bills to see that $120 per drip was being charged. Dr Brennan did not say that an additional $1,000 a bottle was to be paid for the vitamin complex. O’Brien did not conduct any review as to the efficacy of drips in October or November 2014. By the end of December 2014, his horses had received about 80 drips. This amounted to about $9,600 plus his contribution of $3,000.
  18. O’Brien said that when Dr Brennan asked for $3,000 he had never seen or heard of the vitamin complex bottle. He did not think $3,000 was a lot to ask for vitamins, minerals or electrolytes. He did not know exactly how many mLs of vitamins were being added to each drip. He did not hear of the vitamin complex bottle until 21 July 2015.
  19. At the time Dr Brennan asked for $3,000, O’Brien had an approximate idea of how many horses had received drips, but he could not recall the number now. He estimated that about 20 horses had received about 50 to 60 drips. He did not know how the $3,000 was broken down into drips. As at November 2014, O’Brien estimated that the total vet spend by his clients was anywhere from $30,000 to $50,000 a month.
  20. O’Brien said that if Dr Brennan had said to him that the contents or parts of the contents of the IV drips were being sourced from Dr Matthews, that would have rung some alarm bells. O’Brien said at the time he agreed to the drip trial, he did not suspect in the slightest that there was any possibility that the drips would contain cobalt or any prohibited substance. He had no doubt for the entire period that the drips were being administered, and when he was notified of the cobalt positives he had nothing to hide.
  21. O’Brien said he had known Sam Kavanagh since he was a young boy as O’Brien was friends with his father and Sam Kavanagh was someone for whom he had a lot of time. O’Brien said that he ceased contact with Sam Kavanagh in late February 2015 when he learned about some unsavoury aspects of the trouble Sam Kavanagh was in.
  22. O’Brien said that at no stage did Sam Kavanagh mention the fact that he had used a vitamin complex from Dr Brennan. Sam Kavanagh did not mention to him that Mr Corby had come to Sydney to try to persuade him to forget about the vitamin complex bottle. O’Brien only found out about this later.
  23. O’Brien said that even at his interview on 13 May 2015, he dismissed it out of hand that a vet would be using an unlicensed product in a drip. He considered that it was outrageous to accuse Dr Brennan of that. Dr Brennan remained O’Brien’s vet until June 2015.
  24. O’Brien said that by 2014, his stable had 180–200 horses and 90 boxes under management in Barwon Heads and Flemington. He now had 70–75 horses. At the start of 2015, he had about 50 staff. Staff numbers were now down to about 30.

Mark Kavanagh

  1. Kavanagh was interviewed by the stewards in January, May and July 2015. He was also interviewed by the Racing NSW Panel in March and August 2015. He gave evidence before the RAD Board in December 2015 and before the Tribunal in October 2016.

Kavanagh’s interview on 14 January 2015

  1. Kavanagh was interviewed by the stewards on 14 January 2015 about a post-race urine sample taken from Magicool on 4 October 2014. Kavanagh stated that he had never used cobalt and had never had cobalt on the premises. He said his vet did everything; his stable did not do any administration of substances to horses. He had not treated a horse or given a horse a needle for at least eight years.
  2. As at 4 October 2014 Dr Brennan was his vet, but was not any more. Kavanagh said there were no issues with Magicool on 4 October 2014. His stable had a normal protocol, and he was concerned that if Magicool had a positive there may be other horses if there was a mistake at some point. He said everything was by the book at his stable. He said he was totally dumbfounded.
  3. When asked to explain what treatments and substances Magicool received in the weeks leading up to the race on 4 October 2014, Kavanagh replied that he could not say off the top of his head, but they had a normal protocol, and did not even inject vitamins. The injectable substances were stored in his stable. He did not know what substances the stable would have off the top if his head. When asked, he replied that his stable did not use VAM or vitamin B12, amongst other products that might contain cobalt.
  4. He said that Dr Brennan would have done a race-day drench on the Thursday preceding the race. In the weeks leading up to 4 October 2014, Magicool did not leave the property or the stable. He was a fit and healthy horse. There was nothing of note.
  5. Kavanagh said that he was not aware of the stable using any products or any new substances, and Dr Brennan had not recommended the use of any new products around this time.

Kavanagh’s interview on 18 March 2015

  1. Kavanagh was interviewed by the Honourable Keith Mason QC AC on 18 March 2015 as part of an investigation by Racing NSW. He was asked about the Lord Dudley meeting on 2 March 2015. Kavanagh said that the day before this meeting, he had become aware that the inquiry might focus more widely on Dr Brennan or on the supplier of the product that was put into Midsummer Sun.
  2. Kavanagh explained that they day before the Lord Dudley meeting, he was at the horse sales in Oakland Junction in Victoria. Dr Brennan asked to meet him and when he did, told him that Sam Kavanagh was in extreme financial trouble and was lying to the stewards. Sam Kavanagh had named Dr Brennan in the NSW Stewards’ Inquiry. Dr Brennan said he saw Matt Rudolph who said it would be beneficial for Kavanagh to come up and have a meeting and try and clarify the whole situation. Dr Brennan told Kavanagh to find out the extent of Sam Kavanagh’s problems and what was going on. He said Mr Rudolph had offered to meet with Kavanagh to try to work out a solution.
  3. Following this conversation, Kavanagh rang his son and demanded a meeting. Kavanagh informed Mr Rudolph of his time of arrival in Sydney and Mr Rudolph picked him up at the airport. Kavanagh met Sam Kavanagh outside the Lord Dudley Hotel, where they had a heated exchange in which Sam Kavanagh said that he had gotten the bottle from Dr Brennan. Kavanagh questioned him about his finances and the cobalt and caffeine positives. Both Kavanagh and Sam Kavanagh were already angry when Mr Rudolph joined them at the hotel.
  4. Kavanagh said that Mr Rudolph told Sam Kavanagh to tell the truth, come clean and retract his statement implicating Dr Brennan. He said that Dr Brennan’s insurer would be after him financially. If he told the truth, the NSW Stewards would be more lenient on him. He told him he was only young and would be quite welcome back into the industry.
  5. Kavanagh said that he added to Mr Rudolph’s remarks by questioning if Sam Kavanagh realised how serious these allegations were, and whether he could prove that Dr Brennan was the supplier. Sam Kavanagh stopped speaking and walked out of the conversation and Kavanagh brought him back. Mr Rudolph then continued to tell Sam Kavanagh that the bottle did not come from Dr Brennan. Sam Kavanagh again got up and walked out.
  6. Later in his evidence, Kavanagh said that a lot of things have surfaced that he was not privy to on that day, including that the clinic did supply the bottle to Sam Kavanagh. Kavanagh said that he had met Dr Brennan and Mr Rudolph over the years, the two were close.
  7. Asked about what has emerged since that made him think there was a case against Dr Brennan, Kavanagh said that he had since gone to the clinic and demanded to know what was going on. Dr Brennan and Mr Corby told him that they sent a bottle to Sam Kavanagh that had cobalt in it.

Kavanagh’s interview on 13 May 2015

  1. In his interview on 13 May 2015, Kavanagh was asked whether he now knew what caused the elevated levels notified on 14 January 2015. He responded affirmatively stating that the elevated levels were caused by ‘injectable vitamins’ in the drip the horse was receiving two days out from racing. He described drips administered to the horse as having injectable vitamins that could lift cobalt levels and there was no warning about the injectable vitamins when the cobalt threshold was introduced.
  2. Asked how he started using the drips, Kavanagh responded that his vet recommended them because they aid recovery and help a horse hold its condition through preparation. He said he had no knowledge whatsoever that the drips contained cobalt. The vet supplied and administered the drips. Dr Brennan never mentioned cobalt, and had given Kavanagh an undertaking that everything in the drip was above board. He said the drips were used for about a month and were useless; they did not aid recovery or make any difference, so he ceased the drip program and terminated Dr Brennan’s employment as well.
  3. Kavanagh was advised by the stewards that they had some concerns about what Dr Brennan said was actually in the drips. Kavanagh said he had no proof about what was in the drips and he did not know anything about there being cobalt in them. When he discussed the drips with Dr Brennan, Dr Brennan told him the drips contained multivitamins but did not describe the full ingredients of the drips.
  4. As to Sam Kavanagh’s positive to cobalt, Kavanagh said that he had not had any discussion with Sam Kavanagh about this.
  5. The stewards asked Kavanagh who selected which horses were to be treated with drips. Kavanagh replied that it was an expensive practice and the best horses were put on it for the Spring. Kavanagh said that the program for the administration of drips was completely in Dr Brennan’s hands. None of the horses had a reaction to the drips.

Kavanagh’s interview on 21 July 2015

  1. Kavanagh was interviewed by the stewards on 21 July 2015, the day after Dr Brennan’s interviews with the stewards and the NSW Stewards. When Dr Brennan’s evidence regarding the payment of $3,000 Kavanagh allegedly made to him was raised, he said it was totally incorrect, absolute lies, and that he would not be putting up with that. Later Kavanagh said ‘[t] here has been no authorisation of any shit to go into my horses apart from the right medications...’[53]
  2. Kavanagh said he had never seen anything like the bottle shown to him in the previous interview, including at the back of Dr Brennan’s car or in his fridge. The bottle had never been on his premises.
  3. Kavanagh rejected Dr Brennan’s statement that he had sold Kavanagh three bottles of vitamin complex. He said there was no conversation about the bottles, or about horses selected that were to be administered the product. Kavanagh said Dr Brennan told him there would be a course of vitamins in the drips. These were ‘normal vitamins’. They were paid for through billing.
  4. When asked what Dr Brennan had said about vitamins, Kavanagh said the vitamins drip was a massive dose of vitamins through a drip to enhance the horses’ recovery. He had asked Dr Brennan whether there were any problems with the multivitamin drip and Dr Brennan said there were not.
  5. Kavanagh said Dr Brennan had definitely lied to the stewards. He had never had a conversation with Dr Brennan about the product. Dr Brennan had never said to him that he could get this product tested because he could not guarantee that it did not contain prohibited substances. Dr Brennan had no authorisation to use the vitamin complex bottle.
  6. Kavanagh had not spoken with Dr Brennan since it was found that the bottle found at Sam Kavanagh’s was heavily concentrated with cobalt. Dr Brennan was not Kavanagh’s vet now and they did not converse.

Kavanagh’s evidence before the RAD Board on 7 December 2015

  1. Kavanagh gave evidence to the RAD Board on 7 December 2015. He said that there was no discussion about a product that had been successful in the harness racing industry for which Dr Brennan could not vouch or give any guarantees. Dr Brennan had never shown him a bottle, there was no discussion about paying him $1,000 per bottle and he had never paid Dr Brennan $3,000.
  2. When asked whether Dr Brennan said that it would cost between $10,000 – $100,000 to get the vitamin complex tested, and that it was sourced in Canada, Kavanagh said that Dr Brennan was a liar. He said that it was not suggested to him that Dr Matthews was in some way connected with the product.
  3. Kavanagh said that he thought Dr Brennan was going to put large doses of B vitamins, electrolytes and things like that in the drips and that it would stay in the system longer instead of flushing it straight out through the saline drench.
  4. Kavanagh explained that he got the second phone so he could speak to his son after 14 January 2015. He disputed the allegation that he got a second phone because he wanted to be able to have conversations out of any potential earshot of the stewards in relation to his cobalt positive. Kavanagh explained that the stewards told him that all that they wanted were call records up to and including 14 January 2015 and nothing after that would be checked. He did not remember how often he spoke with his son between 14 January and 21 July 2015 but said it would have been regularly.
  5. Kavanagh described the drip regime as an alternative regime rather than as a new product. It was an alternative to oral vitamins and saline drenches. He did not have a discussion about how much it was going to cost. No figure was mentioned.
  6. When questioned about Dr Brennan’s evidence that he had a discussion with Kavanagh at the back of Dr Brennan’s car, Kavanagh said that he totally disagreed with Dr Brennan’s evidence that the back of his car was open, and that the bottle was on the top of the fridge.
  7. Kavanagh said that Magicool was receiving massive doses of vitamins prior to the end of September 2014 through an IV drip administered by Dr Brennan. Kavanagh said that there is nothing out of the ordinary with a vitamin drip. When questioned about his comment in the interview with the stewards on 14 January 2015 that ‘we don’t even inject vitamins’ he said that the injection of vitamins was done through a syringe and these were dripped vitamins which are totally different.
  8. Kavanagh reiterated that after the Lord Dudley meeting he went into Dr Brennan’s office and demanded to know what was going on and Dr Brennan or Mr Corby told him that they had sent the bottle that Sam Kavanagh alleged had cobalt in it.

Kavanagh’s evidence before the Tribunal on 14 and 17 October 2016

  1. Kavanagh gave evidence to the Tribunal on 14 and 17 October 2016. He explained that in about July or August 2014, Dr Brennan replaced Dr Vallance as the principal vet in his stable. Dr Brennan came in every day.
  2. Kavanagh said that as a trainer he did everything in his power to ensure that horses under training perform at their peak, remain fit and well, and that nothing untoward or prohibited is administered to them. The system that Kavanagh put in place to ensure that nothing was inadvertently administered was to employ a vet to do the administration. Kavanagh said that when a vet is employed, the system is explained to them, as well as information about products. He sat down with a new vet and explained that there is to be nothing prohibited given to the horses. He said did that with Dr Brennan when travelling from Adelaide.
  3. Kavanagh said that at the time of the introduction of the drips on 27 September 2014, Dr Brennan had been the primary vet for about two or three months. Dr Brennan often recommended new products. Kavanagh said he trusted Dr Brennan. He was not unhappy with his performance as a vet at that time. They were going well as a trainer vet relationship.
  4. Kavanagh said that the vet did everything and was the only person who treated his horses. The vet had authority to administer a product to a horse if it was in his view appropriate to do so as a veterinarian, but he would need to consult for large injuries or unusual treatments.
  5. Asked about the commencement of the drip program, Kavanagh said that Dr Brennan told him that it would be much better to put vitamins into a horse through a drip because delivery of the vitamins and salts through a tube and saline drenches was making the horses urinate, flushing their systems out quickly. Dr Brennan wanted the vitamins to go in a drip straight into the blood. Dr Brennan said that what was going into the drips was multivitamins, VAM and B12, similar to what is in the saline drench. Cobalt was never mentioned.
  6. Kavanagh said he told Dr Brennan he would give the drips a try and if he did not like them the previous treatment would resume. Cost was not discussed before the trial commenced. He said he never paid Dr Brennan any money in relation to the drips.
  7. Kavanagh said that Dr Brennan had never shown him the vitamin complex bottle. Knowing what the bottle looks like now, he said that had he been shown it, it would not have been used on his horses. He commented that it did not look professionally labelled. Kavanagh said that he would not use a product if the vet specifically told him that he did not know what it was and could not vouch for it. The rules state that only registrable products can be used. He said that Dr Brennan’s assertion that he told Kavanagh that he could get the vitamin complex tested for between $10,000–$100,000 was incorrect, as was the assertion that he gave Dr Brennan $3,000 cash.
  8. Kavanagh said that he used the drips for about a month and stopped using them because he believed they were not working. There was no reason to believe that any of the horses had improved, and the urine of the horses had started to thicken up. He considered it more beneficial to go back to the ‘tried and true’ formula.
  9. When asked about Dr Brennan’s evidence that he told Kavanagh that Dr Matthews had obtained a new multivitamin complex from Canada that is 100% natural, Kavanagh said Dr Brennan was a liar. He had the same response when asked about Dr Brennan’s evidence that he told Kavanagh that Dr Matthews had told him that it didn’t have cobalt in it, but there were no guarantees and it would cost between $10,000 and $100,000 to get it tested. Dr Brennan also lied when he said Kavanagh told him he would get a list of the horses Dr Brennan could start using the vitamin complex on.
  10. Dr Church’s evidence that Dr Brennan had alleged that Kavanagh approached Dr Brennan as a result of a conversation with Dr Matthews was put to Kavanagh, and he responded that it was totally incorrect. He had not heard that allegation before Dr Church gave evidence.
  11. He did not have a discussion with Dr Matthews on a Sunday in which he asked him if he had anything new available. He said Dr Brennan’s allegation that Kavanagh then approached him the following Monday and asked for a substance Dr Matthews had mentioned, and that Dr Brennan then sourced the substance through Dr Matthews, was a total lie.
  12. Asked about Magicool on the evening of the Cox Plate in 2014, Kavanagh said that he was contacted from the stable at about 4pm that day and informed that Magicool was showing signs of colic. Kavanagh said that it did not occur to him that the drip that the horse had been given could have caused his symptoms that night. If a saline drench had been administered, it might cause colic if the horse had an ulcer in its stomach. However, a horse could not get colic from a drip.
  13. Kavanagh parted ways with Dr Brennan and the clinic in the second week of November 2014 because of a dispute about veterinary expenditure on a horse. Kavanagh had no relationship with Dr Brennan after that.
  14. As at 14 January 2015, Kavanagh had not spoken to or seen Dr Brennan since he decided to use a different vet. He had no malice towards Dr Brennan at that stage. He had no private conversation with Dr Brennan prior to his interview by the stewards on that day.
  15. From 14 January 2015 when Kavanagh was notified of his cobalt positives, his conversations with Dr Brennan were sparse. Occasionally, if Kavanagh saw him, Dr Brennan might give him further updates of how cobalt levels rose with vitamins. Dr Brennan did not ever suggest that there was an ingredient that he did not know about in the drips.
  16. Kavanagh said that prior to the Lord Dudley meeting, Dr Brennan called him while he was at the Oaklands Junction sales and told him Sam Kavanagh was in trouble and he was alleging that the cobalt came from Dr Brennan. Dr Brennan said that Sam Kavanagh was changing his story regularly, and that it was about time that Kavanagh actually forced a meeting, went to Sydney and talked to him to see what was going on.
  17. Kavanagh said that before entering the hotel, he wanted to find out where his son’s caffeine positive came from. Sam Kavanagh could not or did not want to tell him. Kavanagh said that Mr Rudolph ‘savaged’ Sam Kavanagh once he arrived. He said that Mr Rudolph ‘just attacked’ Sam Kavanagh and told him that the cobalt never came from Dr Brennan. He demanded that Sam Kavanagh retract his statements. Kavanagh described it as ‘a straight out fight between Matt Rudolph and Sam Kavanagh to say that Dr Brennan had never given Sam Kavanagh the cobalt. It was just a mess.’[54] The meeting lasted an hour and a half and Sam Kavanagh walked out twice.
  18. Following this meeting, Kavanagh said he went to the clinic and asked what was going on. He said that Mr Corby told him that a couple of bottles were sent up to Sam Kavanagh, and he was now alleging they had cobalt in them. Mr Corby said that Sam Kavanagh owes a lot of money and was trying to distract from that.
  19. When asked about his second phone, Kavanagh said he bought a new pre-paid phone from a phone shop on 14 January 2015. He did this on his wife’s insistence. He said that he had not tried to hide the existence of the phone from anyone.
  20. According to Kavanagh, a steward came in to image his phone and stated that he did not want anything after 14 January 2015. In cross-examination, he was taken to a letter addressed to him dated 19 January 2015 which clearly directs him to make available mobile telephone records for the period from 1 September 2014 to 19 January 2015.
  21. Kavanagh agreed that his evidence as to his second mobile phone had shifted a number of times. In a letter to owners dated 22 December 2015 concerning the cobalt positive returned by Magicool on 4 October 2014, he stated that:

I would like to take this opportunity to advise you of the truth about the second or “secret” phone’. The letter went on to say that ‘I bought the phone because my son (with whom it is now public knowledge I had a very strained relationship with) who lives in Sydney would not speak to me if I did not. I was concerned at the time, among other things about my son’s mental health.

  1. Kavanagh said that he wrote the letter, and he believed what he wrote in the letter at the time. He also said that he got the phone because his wife said he should do it as someone may be listening in. He agreed that the letter he wrote to owners was inaccurate. He denied that he bought the phone because he was not entirely innocent or because he had a lot to hide.
  2. Kavanagh admitted that his answer to the stewards on 14 January 2015 that ‘we don’t even inject vitamins’ was misleading, although he did not believe it was misleading at the time.
  3. He also agreed that he lied in his evidence to Keith Mason AC QC when he said that he had gone into the clinic office to ask what was going on, and Dr Brennan had told him that they sent the bottle of stuff to Sam Kavanagh.
  4. Kavanagh admitted to an untruth in his answers to the stewards on 21 July 2015 when he said that he had no discussions with Sam Kavanagh as to the reason why his horse had given a positive to cobalt. His answer to the stewards during the same interview that he had not had any conversation with Dr Brennan about the product was also incorrect, as he had spoken to Dr Brennan about the product prior to the interview of 21 July 2015.
  5. Kavanagh said that in the last two years, his business had lost $200,000. Prior to 14 January 2015 he had 35–40 staff. He now had 10. A stable of about 120 horses had reduced to 25 horses.

Dion Villella

  1. Mr Villella said that the stewards, using Forensic IT, imaged O’Brien’s phone, iPad and the computer system in his office that incorporated a number of computer terminals. Nothing of significance was found. There was nothing that suggested an interest by O’Brien in cobalt.
  2. He also said that there was nothing of significance in relation to Kavanagh’s devices.

The key factual issue

  1. The key factual issue is whether Dr Brennan’s evidence, when taken with other evidence, is of sufficient strength to establish to a comfortable level of satisfaction on the balance of probabilities that O’Brien and Kavanagh are guilty of the charges alleged.
  2. There is no dispute that Dr Brennan personally administered or directed the administration by others of pre-race drips to the O’Brien horses, to Magicool, and to other horses. Those drips contained 5mL of fluid from a vitamin complex bottle containing a high concentration of a cobalt salt in solution.
  3. The substance described as vitamin complex:

(1) was not and is not a commercially available or registered product;

(2) was not obtained by Dr Brennan from any bona fide supplier of veterinary or pharmaceutical products;

(3) was contained in bottles bearing a label which did not contain any statement as to the constituent ingredients of the substance or the manufacturer or source of the substance; and

(4) contained cobalt at a concentration of approximately 20,100,000µg/L, being 20.1mg/mL. A 5mL dose of the substance contained approximately 100.5mg of cobalt.

  1. I am satisfied that the administration of cobalt salts in this way was the principal reason why the O’Brien horses and Magicool recorded cobalt positives in excess of the threshold level of 200µg/L in urine. I am also satisfied that apart from Dr Brennan, the veterinarians who administered pre-race drips to the O’Brien horses and to Magicool were unaware that the drips they were administering contained fluid from a vitamin complex bottle of unknown provenance.
  2. Dr Brennan was the principal perpetrator of the contraventions of the Rules of Racing. Until 20 July 2015, he sought to conceal his own role by numerous untruthful denials, and false statements. Those statements were made to stewards, Dr Church, clinic veterinarians and staff and to O’Brien and Kavanagh. Since 20 July 2015, Dr Brennan has sought to maintain a new account of what transpired, essentially alleging the involvement and connivance of O’Brien and Kavanagh in what took place during Spring 2014. O’Brien and Kavanagh have consistently denied Dr Brennan’s post-20 July 2015 account of conversations and events over the Spring period in 2014.
  3. For the most part, the conversations that occurred in Spring 2014 between Dr Brennan and O’Brien, and Dr Brennan and Kavanagh are conversations between veterinarian and trainer alone. However, considerable insight can be gained into the probable substance of those conversations from the evidence of other witnesses, particularly Dr Church, clinic veterinarians and staff, and Sam Kavanagh.
  4. I have had the considerable benefit of observing the evidence of the principal witnesses over many days. The evidence of Dr Brennan has very low reliability and credibility for the reasons which follow. I accept the evidence given by O’Brien and Kavanagh as to their conversations with Dr Brennan that led to the conduct of the pre-race drip program involving the O’Brien horses and Magicool and reject the version stated by Dr Brennan. Dr Brennan’s evidence cannot be relied on when it is in conflict with the evidence of other witnesses.
  5. I reject Dr Brennan’s account of the conversations that he had with O’Brien and Kavanagh for six main reasons:
  6. I now expand on these reasons.

1. Dr Brennan’s honesty and credibility

  1. Dr Brennan lied to the stewards and to others. In his interviews on 20 July 2015, Dr Brennan confessed to giving false evidence to the stewards on previous occasions. He admitted that he had misled and been dishonest with the stewards. There is no doubt that Dr Brennan’s previous statements were concocted to conceal his own wrongdoing, and to put the most favourable veneer on events from his own perspective, even if his fabricated account contradicted the evidence of other veterinarians, staff, or clients of the clinic such as Sam Kavanagh. Dr Brennan also misled Dr Sykes when he asked Dr Sykes to look into the cobalt positives but did not disclose his use of the vitamin complex, and Mr Corby, when he chose not to tell him that he had used the vitamin complex.
  2. The question then arises whether Dr Brennan really told the truth in his interviews on 20 July 2015 and since then, or whether what he said was a mix of truth and distortion designed to present himself in as favourable a light as could be achieved. Was it intended to spread the blame onto others including O’Brien, Kavanagh and Dr Matthews, thereby minimising his own role, prospective penalty and personal responsibility?
  3. Subsequent to the interviews on 20 July 2015, it has emerged that Dr Brennan did not tell the whole truth concerning his wrongdoing at those interviews on a significant matter. He omitted to tell the stewards that he had retained some of the vitamin complex in a bottle which he had later thrown out. Later again, he admitted that he had thrown the bottle of vitamin complex into a skip bin near another trainer’s stable. When he learnt that Sam Kavanagh had retained a bottle of the vitamin complex, he returned to the skip bin to recover the bottle, but it had gone.

2. Dr Brennan’s abrogation of his professional responsibilities

  1. There is another very good reason not to place trust or confidence in the evidence of Dr Brennan. Until the events of this matter unfolded, Dr Brennan was one of the foremost veterinarians in the equine industry in Australia. He was a senior partner at the clinic with the authority to direct clinic veterinarians and staff. The obligation to ensure high standards of ethical conduct by veterinarians and staff at the clinic principally lay with him. It is a veterinarian’s basic professional responsibility to warrant the drugs and substances used by the veterinarian as reasonably fit for the purposes for which they are required.[55]
  2. Despite this, by his own admission he reneged on his professional responsibilities and lied to the stewards on multiple occasions.

3. Dr Brennan’s concealment of his own culpability and destruction of evidence

  1. Dr Brennan sought to conceal his actions from clinic veterinarians, staff and ultimately, the stewards. This extended to the destruction of evidence including the clinic’s postal book and bottles of vitamin complex, as well as the repeated provision of false information.
  2. Dr Brennan intentionally destroyed evidence that he knew might assist the stewards in their investigations. He threw out the clinic’s postage book, advised Sam Kavanagh to discard his bottles of vitamin complex and discarded his own bottle.
  3. When Dr Brennan found out that Sam Kavanagh had retained his vitamin complex bottles, he concocted a story about a travelling salesman who dropped off a sample in order to distance himself and the clinic from Sam Kavanagh’s positive cobalt result.
  4. He instructed Mr Corby to speak to Sam Kavanagh in the strongest terms about the consequences for him if he did not withdraw his allegations that the source of the vitamin complex bottles was the clinic and Dr Brennan. When this failed, he arranged for his friend Mr Rudolph and Kavanagh to meet with Sam Kavanagh at the Lord Dudley Hotel to seek to dissuade Sam Kavanagh from stating to the stewards that the vitamin complex bottles had come from Dr Brennan.
  5. Dr Brennan did not seek the counsel of his senior partner, Dr Church, or inform him of what he was doing. He sought to keep his activities secret from his staff, particularly his veterinarians who would know that what he was doing was wrong. For example, when Dr Brennan asked Dr Wood to administer the drip he had prepared for Bondeiger, he told her that he had already billed a drip. As a result, she did not record the administration of the drip in the treatment book. He lied at staff meetings, to Dr Sykes and to Dr Church until there was no alternative.
  6. In addition to this, Dr Brennan lied in interviews. He was interviewed on five occasions between January and June 2015. On each occasion, he concealed his role and involvement. He concealed his use of the vitamin complex and the fact that its contents and provenance were unknown. He denied that the clinic had sent the vitamin complex bottles to Sam Kavanagh and that he had charged $1,000 per bottle. He said he never had a bottle of vitamin complex in his possession or supplied it to anyone. When he was shown a photograph of the bottle, he said that was the first time he had seen the bottle.
  7. He disputed that Ms Potter was being truthful when she said she had observed him putting an additional substance in the drip at O’Brien’s stable and repeatedly denied adding the vitamin complex to any drips. He denied instructing Ms Potter to ensure that the bottles to be sent to Sam Kavanagh were properly wrapped because they were expensive.
  8. After the clinic’s postage book ‘went missing’, Dr Brennan asserted that his understanding was that postage books are thrown out once they are full. He did this in order to avoid leaving a trail of evidence connecting him to the despatch of bottles of vitamin complex to Sam Kavanagh. He denied getting a bottle of vitamin complex from Dr Matthews which he later asserted was the truth.
  9. On 20 July 2015 when Dr Brennan advised the stewards that his previous statements had been untruthful, it also became clear that the administration spreadsheets[56] previously prepared by him did not in fact reflect the administration of the vitamin complex to each horse. Dr Brennan advised the stewards that the IV drips referred to in the administration spreadsheets contained 5ml of vitamin complex which he had added to the drips. Dr Brennan deliberately omitted to record the addition of vitamin complex in administration spreadsheets.

4. The improbability and expediency of Dr Brennan’s account

  1. Dr Brennan’s account since 20 July 2015 has all the hallmarks of expediency. It is inherently improbable and seeks to minimise his own role and spread the blame to others by exaggerating their role or by misconstruing what was said or took place.
  2. Dr Church said that Dr Brennan had consistently said that he believed the bottle was concentrated vitamin B12. Dr Brennan’s version of events from 20 July onwards as recounted by Dr Church exaggerates and misstates the roles of Dr Matthews and Kavanagh. He told Dr Church that Kavanagh approached Dr Matthews about sourcing a new product, and then Dr Matthews referred Kavanagh to the vitamin complex. On this version, Dr Brennan only came into the picture later, approaching Dr Matthews to secure a product already discussed between Kavanagh and Dr Matthews. Dr Brennan characterised himself as the innocent agent of Kavanagh as a result of what Dr Matthews told him. It was Dr Matthews who initiated the use of the substance in the bottle.
  3. Three further examples of the improbability and expediency of Dr Brennan’s account can be seen in his claims regarding the Canadian source of the vitamin complex, his understanding of the contents of the vitamin complex and the sale of vitamin complex bottles to O’Brien and Kavanagh. These matters are explored in further detail in the paragraphs that follow.

The Canadian source of the vitamin complex

  1. At his interviews on 20 July 2015 Dr Brennan admitted to using the vitamin complex, and claimed he had sourced it through Dr Matthews. He said that Dr Matthews told him he sourced the bottle from Canada. Dr Brennan’s allegations are denied by Dr Matthews who points to his departure from the clinic by April 2015 and subsequent lack of contact with Dr Brennan. Dr Matthews says that Dr Brennan is seeking to make him the scapegoat for his own actions.
  2. Dr Brennan’s claim that the vitamin complex came from Canada was not verified by him. No manufacturer, distributor, website, source, address, or telephone number was ever provided to make good Dr Brennan’s claim. On 20 July 2015, he told the stewards that he made no inquiries of the Canadian source. Later in the same interview, he stated that Dr Matthews told him that he got onto the manufacturer in Canada who had sent him a list of what was in it, and it was only B vitamins. Despite their obvious importance, Dr Brennan did not seek details of the constituent vitamins and of the communications with the Canadian manufacturer. At an interview with the Victorian stewards, Dr Brennan said he did not know from whom Dr Matthews was getting the vitamin complex in Canada, but the bottles were purchased online. Dr Brennan did not make any serious effort to obtain and provide the details. In the same interview, Dr Brennan alleged that Dr Matthews said he knew the person in Canada. Again, despite the significance of this information, the name was never obtained or provided.
  3. When pressed about the supposed Canadian supplier at the RAD Board in December 2015, Dr Brennan sought to exculpate himself by blaming Dr Matthews and spinning an elaborate story. The story was that Dr Matthews was evasive and a very good liar. Dr Matthews started off that it was a friend of his in Canada that he knew through an international trainer. Then Dr Matthews said that the contact was a compounding chemist in Canada. It was Dr Matthews who said he would provide the details but did not. Dr Brennan then sought to disparage Dr Matthews further with the assertion that problem gamblers were the best liars going around because they live that lie every day.
  4. Dr Brennan named Canada as the source of the vitamin complex in his evidence to the Tribunal. Significantly, he added that sitting here now, he did not believe a word of what Dr Matthews said about Canada. He now believed that Dr Matthews was getting the vitamin complex from someone else.
  5. In their evidence, neither Dr Church nor Sam Kavanagh make any mention of Dr Brennan naming the source of the bottles as Canadian in his discussions with them about the vitamin complex. If the source of the bottle was Canadian, it is likely that it would have been discussed with one or the other at some time.
  6. Dr Brennan’s account that he introduced the vitamin complex to O’Brien and Kavanagh has always been denied by them. It is also denied by Dr Matthews who said that he never spoke to any manufacturer in Canada. Based on the evidence before me, I am of the view that Dr Brennan’s evidence that Dr Matthews sourced the bottles of vitamin complex from Canada is untrue. Dr Matthews provided his phone and iPad to the stewards for searching. There was no evidence that he had been in contact with anyone Canada or that there had been any transactions, searches or monetary transfers to Canada.
  7. Mr Villella, a steward of considerable experience, said that the stewards could not establish whether the bottle of vitamin complex came from Canada or where it came from.
  8. Dr Brennan’s story about Dr Matthew sourcing the vitamin complex bottle from Canada is most likely a fiction concocted by Dr Brennan to resolve the embarrassing issue as to how he obtained and used untested and unproven bottles of vitamin complex that contained high concentrations of cobalt.

Lack of knowledge of the contents of the vitamin complex

  1. Dr Brennan said that he had doubts and suspicions about the true content of the vitamin complex bottle from the outset. He contacted Mr Bova about testing the contents of the bottle. He admits that the cost of testing for cobalt was only a couple of hundred dollars. Given his experience and professional expertise, he can be taken as entirely familiar with racing laboratories and the testing regime, including the cost of pre-race and post-race swabs. It was easy for him to find out and arrange testing for prohibited substances just as is regularly undertaken by the stewards. He admits that he should have contacted RASL and undertaken elective screening. He did not do so.
  2. Sam Kavanagh said that he discussed the vitamin complex with Dr Brennan who said that he did not think it was cobalt. Later, he said he was told by Dr Brennan that it was a multivitamin drip, and was not a prohibited substance. Dr Brennan introduced the drip on the basis that other trainers were using it and that it was legal. He was assured that it was just vitamins and totally safe without a holding period.
  3. Dr Brennan’s evidence does not stop at his lack of knowledge of the provenance of the vitamin bottle and his conversation with Mr Bova about the cost of testing ranging from $10,000 to $100,000. He says that he separately told O’Brien and Kavanagh of these matters.
  4. Both O’Brien and Kavanagh were highly competent trainers with years of experience in the racing industry. Both gave evidence that they would have been astonished at a suggestion by their veterinarian to administer an IV drip of unknown content into highly valuable thoroughbred racehorses under preparation for the Spring Racing Carnival. It would have been a ridiculous or laughable suggestion. Neither O’Brien nor Kavanagh had any past experience with cobalt or prohibited substances.
  5. Significantly, Dr Church agreed that a veterinarian who proposed to either O’Brien or Kavanagh that they use a product that cost $1,000 and for which the veterinarian could not vouch could expect to be thrown out of his stable. Dr Church said that it was inconceivable that anyone would use a product without knowing what it was.
  6. Dr Brennan’s evidence that this was part of the sales pitch used by him to persuade O’Brien and Kavanagh to sign up to the new drip program must be rejected. His evidence that both O’Brien and Kavanagh independently agreed for him to use an unknown product on their best thoroughbred racehorses is highly improbable, even fanciful, and must also be rejected.

The sale of bottles of vitamin complex by Dr Brennan to O’Brien and Kavanagh

  1. Dr Brennan sold two bottles of vitamin complex to Sam Kavanagh for $1,000 each. Sam Kavanagh received the two bottles by post from the clinic. He admits to the purchase and receipt of bottles of vitamin complex. He administered drips himself.
  2. The stable management of O’Brien and Kavanagh was very different. Neither O’Brien or Kavanagh, or their staff, administered drips to horses. This was exclusively done by veterinarians. Dr Brennan did not provide O’Brien, Kavanagh or their stable staff with any bottles of vitamin complex.
  3. Dr Brennan kept a bottle in his car fridge, adding 5mL of the vitamin complex to drips administered by him, or other veterinarians on his direction. He said that O’Brien never saw a vitamin complex bottle. He was unsure whether Kavanagh had. Neither O’Brien nor Kavanagh had possession of any bottle. Both O’Brien and Kavanagh have consistently denied sighting a vitamin complex bottle.
  4. There is no reason to doubt O’Brien’s and Kavanagh’s evidence that they did not take any notice of a 100mL brown bottle standing amidst all of the other bottles, medicines and preparations found in a veterinarian’s fridge on the back of a truck. They are only likely to have done so if the bottle was specifically pointed out to them. Dr Brennan does not suggest that he did this.
  5. Dr Brennan says that he sold three bottles of vitamin complex to O’Brien and three to Kavanagh. O’Brien says that he paid Dr Brennan $3,000 by bank transfer in November 2014 to assist in meeting the cost of the drip trial. Kavanagh says that he made no payment to Dr Brennan in any amount. There is no banking or documentary evidence that he did. Dr Brennan says Kavanagh paid $3,000 in advance for the bottles, even though only one bottle was used for his horses. This is a most unlikely scenario for an unseen product yet to be proven or tested. O’Brien said that the amount of $3,000 was not an enormous amount to trial a new product in the context of his business. It was reasonable and a contribution to see that costs to owners were kept under control. As at November 2014, O’Brien’s clients were spending $30,000 to $50,000 a month for veterinary expenses.
  6. Again the probabilities favour the evidence of O’Brien rather than the evidence of Dr Brennan. It is hard to believe that either trainer agreed to pay $3,000 for three bottles of a product that they had never seen, and which was never delivered to them. Dr Brennan was already charging owners $120 for each drip he administered. The product used by Dr Brennan was not of commercial quality. There is no invoice, sales documentation or information about the vitamin complex.

5. The evidence of the veterinarians, staff and Dr Matthews

  1. The evidence of the clinic’s veterinarians and staff, and the evidence of Sam Kavanagh and Dr Matthews, all point to the likelihood that the evidence of O’Brien and Kavanagh as to what passed between them and Dr Brennan is correct.
  2. Dr Vallance said that over the entire time that he had known them, O’Brien and Kavanagh had been horse trainers of the highest integrity and they both ran professional stables. Ms Potter said that O’Brien and his stable were completely professional and he never asked her to source any illegal products.
  3. Dr Matthews said that he was aware that Dr Brennan was using pre-race drips, and that he was using a new drip at the start of Spring 2014. No one knew what was in it. He was aware that Dr Brennan used unusual products like Ferrocyl and VAM.
  4. Sam Kavanagh said that the vitamin complex product was introduced to him by Dr Brennan in about September or October 2014. Dr Brennan said it was a new, ‘cutting edge’ product. There were other stables using it and performing particularly well at the time. It was not a prohibited substance. It was a refined form of B vitamins to aid horses’ recovery as a pick-me-up for post gallops or recovery.
  5. Sam Kavanagh’s evidence is generally consistent with the evidence of O’Brien and Kavanagh. It outlines an instance where Dr Brennan promoted and arranged use of the vitamin complex product. His evidence as to how Dr Brennan promoted the new product is sensible and reasonable. His evidence as to how Dr Brennan promoted the vitamin complex at the time may be contrasted with the story Dr Brennan tells about his conversation with O’Brien and Kavanagh. All evidence is to the effect that they had a high reputation and would not have accepted an untested, backyard product.

6. Dr Brennan’s confession

  1. Dr Brennan’s ‘confession’ took place only when he realised that his evasions and denials had become untenable and it was essential for him to project a new version of past conversations and events.
  2. In his interview with the stewards on 23 March 2015, Dr Brennan was asked about Sam Kavanagh’s statement to the NSW Stewards that the bottle of vitamin complex they had found came from Dr Brennan. Dr Brennan denied this, describing the allegation as having ‘no truth whatsoever’. He did the same in his interview on 13 May 2015. Both Ms Potter and Dr Vallance stated in interviews that they had observed Dr Brennan with a bottle, and the evidence against him continued to mount. Dr Brennan recanted and admitted the falsity of his previous statements on 20 July 2015.
  3. Dr Brennan’s confession on 20 July 2015 was not as a result of remorse or repentance on his part. It was a confession forced on him by the weight of evidence implicating him that had become available to the stewards. He had no alternative but to project a new version of events. He was aware that his previous denials and evasion were under heavy scrutiny by the stewards. Not only was Sam Kavanagh maintaining his stand that the source of the vitamin complex bottles was Dr Brennan, but his own veterinarians and staff were contradicting him. The combined evidence of Dr Vallance, Dr Brown, Dr Kelly and Ms Potter had become increasingly hard to deny. There was no reason why they would be making false statements about what they had seen or done.
  4. Dr Brennan’s previously concocted denials had come unstuck. He needed a new account more consistent with what his own veterinarians, staff and Sam Kavanagh said.

Racing Victoria Ltd’s criticisms of the evidence of O’Brien and Kavanagh

  1. Racing Victoria Ltd made a number of general criticisms as to the evidence of O’Brien and Kavanagh including that:

The credibility of O’Brien and Kavanagh and the state of their knowledge as to the introduction of the drips

  1. The evidence given by O’Brien and Kavanagh as to the conversations with Dr Brennan that led to the commencement of the drip program in Spring 2014, and the administration of the vitamin complex by Dr Brennan, provides a reasonable and rational explanation as to what happened. While the evidence of O’Brien and Kavanagh contains flaws and is open to criticism in some respects, they have consistently maintained their position as to the drip program, what they knew and expected, and what was said to them by Dr Brennan in September 2014 and later.
  2. Prior to the Spring Racing Carnival 2014, neither O’Brien nor Kavanagh had any knowledge or experience of cobalt. They had not studied its effect on horses and horseracing. They did not know how cobalt would be administered, or the cobalt salts or preparations that might be obtainable. They knew that cobalt was a prohibited substance and had no interest in it being administered to their horses. It was not suggested to them by Dr Brennan that there was any cobalt in the drips.
  3. Both O’Brien and Kavanagh were told by Dr Brennan that the drips would contain vitamins, electrolytes, B12, and VAM. Both were under the impression that the drips would aid horses’ recovery. Neither were aware that there could be a prohibited substance in the drips.
  4. O’Brien and Kavanagh’s accounts of what transpired in their dealings and conversations with Dr Brennan are credible and plausible. They are much more probable than the account of Dr Brennan. The burden of proof on the balance of probabilities to a comfortable level of satisfaction is on RVL and not on O’Brien or Kavanagh. They are not required to prove anything.
  5. I accept that O’Brien and Kavanagh discussed the contents of drips and the drip program with Dr Brennan in general terms. However, Dr Brennan did not disclose to them that he was using material from bottles of vitamin complex in the drips. Their account is consistent with Dr Brennan’s failure to list the vitamin complex as amongst the products that he was using in any administrative records. There is nothing unlikely in moving from a drench to an IV drip program for the administration of supplements and additives. The uncontradicted evidence is that other leading trainers were doing so or had already done so. It was sensible and appropriate to select the best horses to participate in this program. Their owners would be best placed to bear the additional costs.

The making of payments by O’Brien and Kavanagh to Dr Brennan

  1. Initially, O’Brien did not disclose the payment of $3,000 and he is open to criticism in this respect. In evidence, he said he was concerned that the disclosure by him of the payment might be misrepresented or misunderstood, particularly given the high level of media scrutiny and public awareness. He did not admit the $3,000 payment until late in the day. This does not mean that the payment of $3,000 did not have the character ascribed to it by him in his evidence.
  2. I am of the view that it is likely that this payment was made for the reason that O’Brien gave, that is, to defray expenses associated with the new drips program undertaken by Dr Brennan and the clinic. The improbability of Dr Brennan’s account, which is the alternative account, is discussed above.
  3. Kavanagh has consistently denied that he paid Dr Brennan $1,000 a bottle, or any sum for bottles of vitamin complex. Despite extensive investigations, the stewards have not found any document or electronic record that suggests that Kavanagh did make any payment to Dr Brennan for the purchase of bottles of vitamin complex. As discussed above, Kavanagh’s account is much more likely to be true than that of Dr Brennan.

Inconsistencies or omissions in evidence

  1. O’Brien lied to the stewards in his interview on 14 January 2015 when he denied receiving a telephone call from Mr Moody tipping him off about the fact that he had received a cobalt positive and that the stewards were with Kavanagh. Later, he recanted disclosing that he had received such a tip-off. I accept O’Brien’s evidence that he initially made false statements to the stewards to protect his source, Mr Moody, who he believed had done him a favour.
  2. Racing Victoria Ltd contends that Kavanagh gave unsatisfactory evidence prior to his interview in May 2015 because he failed to mention the drip program. While at the time of this interview he did not know that Dr Brennan had added material from the vitamin complex bottle to the drips and did not consider the drip program to be different in function to the drench program, he failed to disclose the drip program, which was a change to previous practice. His answer was wrong and misleading having regard to what he knew at the time.
  3. The criticism by RVL of Kavanagh’s evidence concerning his second phone has some justification. The existence of the second phone was not disclosed to the stewards on 19 January 2015 when required under a notice. Kavanagh falsely attributed his need for a second phone to his son Sam Kavanagh. It is most likely that Kavanagh’s motivation in obtaining a second phone was because of his concern that his private conversations were or might be monitored or overheard by the stewards. Again it does not follow that his non-disclosure of the second phone should be taken as indicative of guilt. The preferment of the charges by the stewards against O’Brien and Kavanagh had a high media profile. There is every reason why Kavanagh would want privacy in his communication with legal and media advisers, family members and friends. The evidence is that he used the second phone to speak to his sons and a family friend and journalist who was assisting Kavanagh as to media matters and research.
  4. Kavanagh admits that he lied during his evidence in the NSW investigation conducted by the Honourable Keith Mason AC QC when he stated that he went into Dr Brennan’s office and demanded to know what was going on and Dr Brennan and Mr Corby told him they had sent a bottle to Sam Kavanagh that contained cobalt. This statement appears intended to support his son’s statement (then denied by Dr Brennan) that he had received bottles of vitamin complex from Dr Brennan. The false statement did not bolster Kavanagh’s own position, rather it was to the advantage of his son despite their estrangement.

Racing Victoria Ltd’s additional criticisms of O’Brien’s evidence

  1. RVL made a number of submissions about O’Brien’s evidence including that:

Veterinary bills

  1. There is no evidence that O’Brien informed owners that their veterinary bills might rise due to the administration of IV drips rather than drenches. There is also insufficient evidence before the Tribunal of his commercial and contractual relationships with the owners of the horses in his stable or whether there was any expectation by owners that they would be informed of an expense of this low magnitude. It does not follow that O’Brien’s failure to tell owners of the additional expense of the drip program was necessarily significant against the background that the owners were already spending $30,000–$50,000 per month on veterinary expenses.

Matt Harrington

  1. While Matt Harrington, O’Brien’s Business Manager, was not called as a witness, I am not satisfied that his evidence would have assisted the Tribunal on any key issue. While the payment concerned was not made out of the stable business account, it is not apparent that Mr Harrington could give useful evidence concerning O’Brien’s use of his personal bank account.
  2. Again, the burden of proof on the balance of probabilities to a comfortable level of satisfaction is on RVL and not on O’Brien. He is not required to prove anything.

Interest in cutting edge treatment and hypoxia

  1. O’Brien had a keen interest in contemporary training and management of horses. He expended $400,000 on high altitude training rooms, used state of the art heart-rate monitoring and administered a green algae supplement. He also gave evidence of monitoring the red blood cell count of horses in the days before a race, and maintaining past blood cell counts. He sought to be a ‘cutting edge’ trainer and innovative in his approach. However, there is no evidence whatsoever that O’Brien ever had any interest in the use of cobalt or any other prohibited substance. The innovative methods he employed were within the Rules of Racing.

Interview with radio SEN

  1. In his interview with the stewards on 14 January 2017, O’Brien did not disclose that he was trialling a drip program in his stable. In an interview on radio SEN on 17 January 2015 he said that ‘we’ve certainly done nothing different to what we’ve done for a lot of years’. While he did not know at the time of his interview with the stewards, or on SEN, that Dr Brennan had added material from the vitamin complex bottle to the drips and did not consider the drip program to be different in function to the drench program, he failed to mention the drip program, which was a change to previous practice. His answer was wrong and misleading having regard to what he knew at the time.

Conclusion

  1. I have given careful consideration to all of the matters advanced by RVL in their oral and written submissions and in cross-examination. My conclusion is that much of O’Brien’s evidence is credible and should be accepted by the Tribunal.

Racing Victoria Ltd’s additional criticisms of Kavanagh’s evidence

  1. RVL made a number of submissions as to Kavanagh’s evidence:

Sighting the vitamin complex bottle

  1. According to Dr Brennan, a vitamin complex bottle was sitting on top of his fridge at the time that he first discussed the drip program with Kavanagh. RVL contends that if this is so, it is likely that Kavanagh saw the bottle of vitamin complex at that time. Kavanagh denies this account. I accept Kavanagh’s evidence. Dr Brennan’s account has little or no credibility. Dr Brennan’s fridge at the back of his car contained numerous bottles. A 100mL bottle is of small size. Without picking up or looking closely at a bottle of that size, it is not possible to discern the printing on the bottle label. Even if Kavanagh saw a small bottle while standing at the back of the truck, it would have no significance to him.

Stopping the drip program

  1. Kavanagh gave evidence that he stopped the drip program because he did not believe that his horses were doing any better. He also formed the view that the horses’ urine was thickening up. RVL suggests that the reason Kavanagh stopped the drip program was because Magicool suffered colic-like symptoms on 25 October 2014. Kavanagh denies these allegations.
  2. There is no evidence to support them. They are purely speculative. Even if Kavanagh stopped the drip program because of an adverse reaction by Magicool, this does not show that Kavanagh had any knowledge that Dr Brennan was administering material from a vitamin complex bottle.

Knowledge about the effect of cobalt on cattle

  1. Racing Victoria Ltd contends that Kavanagh knew that cobalt would benefit cattle physically having previously worked in a cattle station.
  2. This contention is speculative. There is no basis for any adverse inference against Kavanagh on account of his experience at a cattle station. I accept Kavanagh had no interest in the use of cobalt with horses, or knowledge that Dr Brennan was adding the material from the vitamin complex bottle to the drips.

Conclusion

  1. I have given careful consideration to all of the matters advanced by RVL in their oral and written submissions and in cross examination. My conclusion is that much of Kavanagh’s evidence is credible and should be accepted by the Tribunal.

The telephone evidence

  1. Racing Victoria Ltd went to great lengths to subpoena text message and telephone records and prepare a comprehensive telephone communication spreadsheet. Witnesses were extensively cross-examined about their messaging and telephone conversations.
  2. Reviewing this evidence, I am not satisfied that a ‘smoking gun’ was identified. During much of their evidence, it was plain that witnesses simply could not remember what the message or conversation was about. Often both questioner and witness did little more than speculate about what transpired or was said. I did not get a great deal of assistance from this evidence.

Charges 1 and 2

  1. Charges 1 and 2 against both O’Brien and Kavanagh allege contraventions of AR 175(h). Charge 1 alleges a breach of AR 175(h)(i), while Charge 2 alleges a breach of AR 175(h)(ii). AR 196(5) requires the imposition of a mandatory minimum disqualification of three years for any breach of AR 175(h)(i), unless ‘a special circumstance exists’. The penalty for breach of AR 175(h)(ii) is not prescribed and is determined by the decision maker.
  2. Broken down into its constituent elements, AR 175(h)(i) requires proof by the stewards on the balance of probabilities to a comfortable level of satisfaction that:

(a) O’Brien and Kavanagh have administered a prohibited substance to a horse, or caused a prohibited substance to be so administered; and

(b) their purpose in administering or causing the administration of such a prohibited substance was to either:

(i) affect the performance or behavior of the horse in a race; or

(ii) prevent the horse from starting in a race.

  1. AR 175(h)(ii) requires proof of the following constituent elements that:

(a) O’Brien and Kavanagh have administered a prohibited substance to a horse, or caused a prohibited substance to be so administered; and

(b) the prohibited substance has been detected in a sample taken from the horse prior to or following the running of any race.

  1. The first element is common to both offences. The second is not. The stewards do not allege that the trainers themselves or anyone in their employ ‘administered’ any prohibited substance, nor do they allege that such administration was done for the purpose of preventing a horse from running in a race.
  2. The Tribunal must be satisfied that:

(a) O’Brien and Kavanagh caused a prohibited substance to be administered to a horse (Charges 1 and 2); and

(b) their purpose in causing the administration of that prohibited substance was to affect the performance or behaviour of the horse in a race (Charge 1 only).

  1. There is no dispute that Dr Brennan and other clinic veterinarians administered the pre-race drips and their contents to the O’Brien horses and to Magicool. The principal debate is whether O’Brien or Kavanagh caused the administration of prohibited substances to the O’Brien horses or Magicool.
  2. For reasons that I will shortly expand on, I am not satisfied on the balance of probabilities to a comfortable level of satisfaction that O’Brien or Kavanagh caused the administration of a prohibited substance to the O’Brien horses or to Magicool. As a result, Charges 1 and 2 necessarily fail in each case.
  3. In considering these issues, it is first necessary to consider legal matters, namely the interpretation that should be given to AR 175(h)(i) and (ii).

The construction of AR 175(h)

RVL’s submissions

  1. RVL’s main submissions on the construction of AR 175(h) were:

(a) A trainer will have caused a substance to be administered by a veterinarian to his horse where, inter alia, the trainer has authorised, requested, procured or brought about that administration, or where the trainer has intended or contemplated that the administration occur.[57]

(b) It is not necessary for the purposes of AR 175(h)(i) that the veterinarian who administers the cobalt, or the trainer who causes the cobalt to be administered, to have actual knowledge that the substance being administered is cobalt or a prohibited substance.

(c) The criminal law concept of mens rea or ‘guilty mind’ does not apply to the Rules of Racing. The Rules of Racing do not involve criminal responsibility or create criminal offences.

(d) In the context of a regulatory scheme which bears a closer relationship to professional discipline than to the general criminal law, there is limited benefit to be found in discussing cases which involve the addition of a new offence, or a new form of prohibition to the general criminal law.[58]

(e) There is a public interest in concepts of absolute liability being imposed in these circumstances.[59]

(f) Even if knowledge is necessary, the only knowledge required for the purposes of AR 175(h)(i) is that a prohibited substance was administered. This is made out ‘if there is proof of a belief by the accused in the likelihood (in the sense that there was a significant or real chance) that he or she has a prohibited drug in his or her possession.’[60]

(g) The requirement of knowledge is satisfied where there has been ‘wilful blindness’ on the part of a defendant. Wilful blindness arises where a defendant ‘deliberately refrains from making inquiries because he or she prefers not to have the result, or otherwise willfully shuts his or her eyes for fear that they may hear the truth’.[61]

O’Brien and Kavanagh’s submissions

  1. O’Brien and Kavanagh submitted on the same issue:

(a) The correct construction of AR 175(h) requires that the trainers know that the substance which was to be administered was or contained cobalt in an amount which would exceed, or was likely to exceed, the prescribed threshold once absorbed into a horse’s system.

(b) The Tribunal’s previous decision in Corstens v Racing Victoria Limited[62] (‘Corstens’) decides that an offence under AR 175 requires an intention on the part of the person charged.

(c) Decisions in the criminal law such as He Kaw The v The Queen[63] demonstrate that proof of mens rea is required in illicit drug importation and possession cases. The prosecution must prove that the accused was not only in possession of a prohibited import and had imported it, but knew that he or she had done so.[64] The same reasoning ought to be applicable to the construction of AR 175(h).

(d) Decisions by courts involving regulatory offences such as Miller v Hilton,[65] O’Sullivan v Truth and Sportsman Pty Ltd,[66] and Samuels v Centofanti,[67] demonstrate that some degree of knowledge or an intention to do the act on the part of the person who does it is required.

(e) The decision of the Full Court of the Supreme Court of Western Australia in Harper v Racing Penalties Appeal Tribunal (WA),[68] is distinguishable on two grounds. First, it does not involve a rule which corresponds to AR 175(h)(i), but Rule 364 of the Rules of Harness Racing. Second, Rule 309 of the Rules of Harness Racing provides that an interpretation which extends the operation of those Rules is to be preferred to one that restricts their operation. That rule of construction displaces the principles of statutory and contractual interpretation that would otherwise apply, including the ordinary presumption that a serious offence carries with it a requirement to prove mens rea.

(f) A construction of AR 175(h) which imports an element of intention or knowledge gives a congruent operation to the Rules of Racing and is consistent with the scheme of offences contained in the Rules of Racing. The scheme involves in ascending order of gravity:

(1) AR 178 does not require any mental element or deliberate administration and does not attract a mandatory penalty.

(2) AR 175(h)(ii) requires knowledge and an intention to administer the prohibited substances. There is no requirement that the administration be done for the purpose of affecting the horse’s performance.

(3) AR 178E prohibits the administration of a medication to a horse on race day without permission to do so. It is of greater seriousness because it relates to the deliberate administration of substances on race day. It attracts a minimum penalty of six months disqualification.

(4) AR 177B(6) prohibits the administration of certain prohibited substances at any time. This provision is limited to substances of a most serious kind. It does not require that the administration be intended to affect or enhance a horse’s performance in a race. It attracts a mandatory penalty of two years disqualification, but not as high as other offences which involve an intention to affect a horse’s performance on race day.

(5) AR 175(h)(i) is the most serious of the offences because it involves the intentional administration of a prohibited substance to a horse with the purpose of affecting its performance on race day. This is reflected in the fact that it attracts a mandatory penalty of three years disqualification. This is a greater penalty than any other offence relating to prohibited substances.

Construction principles

  1. The construction of AR 175(h) should be approached by the application of the well-established principles of interpretation that apply to a statute or instrument authorised by a statute.
  2. In Project Blue Sky Inc v Australian Broadcasting Authority,[69] McHugh, Gummow, Kirby and Heydon JJ said:

[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.[70]

  1. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory),[71] Hayne, Heydon, Crennan and Kiefel JJ said:

This Court has stated on many occasions that the task of statutory interpretation must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[72]

  1. In Baini v The Queen,[73] the High Court said:

As the [High] Court said in Fleming v The Queen, ‘[t]he fundamental point is that close attention must be paid to the language’ of the relevant provision because ‘there is no substitute for giving attention to the precise terms’ in which that provision is expressed.[74]

  1. In Commissioner of State Revenue v EHL Burgess Properties Pty Ltd,[75] the Court of Appeal said ‘In more recent cases, the High Court has given renewed emphasis to the primacy of the actual language used in the test of the statutory provision under consideration.[76]

The principle of legality

  1. Another consideration is the principle of legality. This requires that statutes be construed where constructional choices are open to avoid or minimise their encroachment upon rights and freedoms at common law.[77] O’Brien and Kavanagh carry on businesses as horse trainers. They would be very seriously affected in many ways by disqualification as horse trainers or by the imposition of penalties. According to this principle, if the court is to adopt an interpretation that would result in the termination of a trainer’s business or occupation for three years, the language of the Rules of Racing must be unmistakable or unambiguous.[78]

Penalty provisions

  1. There is another principle of interpretation that relates to penalty provisions generally. The common law privilege against penalty comes from the deep seated belief that those alleging the commission of a crime or other illegal conduct should prove it themselves and should not be able to compel the accused to provide proof against himself or herself.[79] Penalty privilege applies in a wide range of circumstances including the disqualification and imposition of civil penalties on company directors,[80] breach of duties by directors under the Corporations Act 2001 (Cth),[81] dismissal from the police force,[82] alleged unprofessional conduct by a medical practitioner,[83] the making of an involuntary treatment order under the Mental Health Act 1986 (Vic),[84] and charges of professional misconduct against a legal practitioner.[85]
  2. The present proceedings allege the commission of offences by O’Brien and Kavanagh and seek the imposition of penalties such as disqualification and fines.
  3. ‘Offences’ are dealt with in the Rules of Racing commencing at AR 175 and extending to AR 178H. AR 175 itself is an offence provision.
  4. Although in modern times regarded as of reduced importance, it is a longstanding legal principle of interpretation that courts will require strict adherence to the words of a penal provision. As the liberty of the subject is at stake, the Court will not extend the operation of a statute to cover a situation because the legislature has acted inadvertently. In Ex parte Fitzgerald; re Gordon,[86] the Full Court of the NSW Supreme Court said:

If conduct of a particular kind stands outside the language of a penal section, the fact that a court takes the view that it is through inadvertence of the Legislature that it has not been included does not authorise it to assume to remedy the omission by giving the penal provision a wider scope than its language admits.[87]

  1. In Krakouer v The Queen,[88] McHugh J said:

Still less should a court ignore the clear words of a provision so as to give it a meaning that would or might make it easier to convict an accused if the intention of the legislature is at best a matter of contestable opinion...[89]

  1. In R v Adams,[90] the High Court said:

No doubt, in determining whether an offence has been created or enlarged, the Court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category.[91]

  1. Since R v Adams was decided, the High Court has confirmed that the legal principle directing that statutes creating offences should be strictly construed has lost much of its importance.[92] However, the principle remains applicable if the language of a statute creating the offence is ambiguous or doubtful. In all other instances, after the ordinary rules of construction apply.[93]

The RAD Board decision

  1. The RAD Board held that actual knowledge that the substance is cobalt or a prohibited substance is not a requirement of AR 175(h)(i), and that criminal law principles are not applicable.[94] It observed that cobalt per se is not a prohibited substance. Knowledge of the substance administered is not a requirement. Cobalt may be administered whether a person does so knowingly or not. Only when the threshold is exceeded is cobalt a prohibited substance for the purposes of the Rules of Racing. It is irrelevant to guilt whether a person knew the substance was cobalt.[95]

The scheme of offences

  1. Consideration of the interpretation and place of AR 175(h)(i) and (ii) in the context of the scheme of offences contained in the Rules of Racing provides much assistance. A proper role, meaning and place has to be given to all of the offence provisions dealing with substance abuse in the Rules of Racing. It is not just a matter of interpreting AR 175(h)(i) and (ii) as free standing offence provisions dealing with prohibited substances.
  2. The scheme of provisions in the Rules of Racing involves a nuanced hierarchy of offences where the more severe mandatory penalties match the gravity of the corresponding offences. It is logical that offences which involve the administration of prohibited substances intended to affect the result of races at race meetings are at the pinnacle of the offence hierarchy. On the other hand, contraventions resulting from the unintended or unexpected consequences of the administration of medication or supplements are lower down in the hierarchy of offences.

The purpose of administration

  1. The language of AR 175(h)(i) requires proof of purpose as a constituent element of the offence. The purpose must be either to affect the performance or behavior of a horse or prevent it from starting. If purpose is to be proven, intention is certainly relevant. It is difficult to see how purpose can be proven without proof of an express intention or an intention to be implied from the facts and circumstances. By contrast AR 175(h)(ii) does not require proof of purpose.

Previous Tribunal decision on AR 175(h)

  1. The Tribunal has given previous consideration to the interpretation of AR 175(h).
  2. In Corstens,[96] Ross J, Judge Bowman and Judge Dyett considered AR 175(h) and AR 178, and held:

It is relevant to note that a breach of Rule 178 does not require a finding as to how the prohibited drug came to be in the horse’s system. This may be contrasted with a charge under Rule 175(h)...

In Homann[97] Judge Williams, constituting the Racing Appeals Tribunal, dealt with the distinction between offences under Rules 178 and 175(h):

‘... this particular offence against Rule 175(h)(ii) is a significant offence, a serious offence. The more common cases are those against Rule 178, the presentation at the race track of a horse containing a substance that it shouldn’t contain or a substance in excess of the threshold. The Tribunal considers that the actual offence against 175(h)(ii), which requires [as] an element thereof, the actual administration of the substance to be more significant, more serious.’

We respectfully agree with his Honour’s observation, in our view an offence under Rule 175 is the more serious as it involves, among other things, an intention on the part of the person charged, whereas intention is not a necessary element of a charge under Rule 178.[98]

The meaning of the word ‘cause’

  1. The word ‘cause’ is a protean word in the English language. It has many different meanings and shades of meaning and can form different parts of speech. When used as a verb, it means to be the cause of or bring about.[99]

Judicial decisions on the word ‘cause’

  1. Courts have often considered the concept of ‘causing’ a particular act, event or outcome, in the context of regulatory offences.[100]
  2. In Miller v Hilton,[101] the High Court considered a provision which made it an offence for a person to ‘cause to be driven’ a vehicle on a ’controlled route’. The Court held that a father did not ‘cause’ his son to drive a vehicle on a controlled route when he did not know or intend that his son would drive the vehicle on that route. Rich J stated:

When it is expressly made an offence for one man to 'cause' another to commit what is forbidden as a crime we ought not to give any wide or general application to the word 'cause’. In this subsection I take it to mean to procure or bring about. It refers to some intentional or conscious production of the effect. Consequences are infinite and I think that the present section meant to forbid only doing an act knowing or intending that it should produce the consequence that a vehicle is driven upon a road for the purpose of carrying persons or goods for hire if it turns out that the road is a controlled route. [102]

  1. In the same decision, Dixon J similarly remarked:

In such a connection I think the word 'cause' does not extend beyond acts or omissions of a person who does or makes them either for the purpose of bringing about the doing of the things which amount to the principal offence, or at least contemplating or foreseeing that they will or may have that result. ... I think there must be some intention that a vehicle shall be driven on a route for the purpose of carrying passengers or goods for hire, or that this shall be contemplated or foreseen as a result of the act in fact causing it. [103]

  1. In O'Sullivan v Truth and Sportsman Ltd,[104] the High Court considered whether a newspaper had caused a newsagent to offer for sale its publication. Kitto J said:

It is important to recognise that what is here being considered is the 'causing' of an act which involves an intention to do it on the part of the person who does it. The inquiry may well be different in the case of an event independent of such an intention.

...

The truth is, I think, that one person cannot be said to cause another's act unless not only does the former express it as his will that the act shall be done by the latter but the latter's decision to do it is a submission to the former's will, that is to say a decision to make himself the instrument of the former for the effectuation of his will.[105]

Conclusion regarding the construction of AR 175(h) and the word ‘cause’

  1. Application of the principles of statutory construction and review of the decided cases concerning the word ‘cause’ for the purposes of AR 175(h) confirm that one person may be considered to have caused a particular result as a consequence of the actions of a second person if the first person:

(1) intentionally or consciously sought to produce the result;[106]

(2) knew or intended that the actions of the second person would produce the result;[107]

(3) had the purpose of bringing about the doing of the things that would amount to the result;[108]

(4) contemplated or foresaw that the actions of the second person would or might give rise to the result;[109] or

(5) refrained from making inquiries because the first person preferred not to know about the second person’s actions, or wilfully shut his or her eyes for fear that he or she might learn the truth.[110]

  1. In my view, any one of these circumstances is sufficient to show that the first person caused the result. It is not essential under AR 175(h) that the prosecution prove that the first person or the second person knew that the substance to be administered by the second person was a prohibited substance. In the situation of willful blindness, neither the first person nor the second person may know that a prohibited substance is to be used at all.

Conclusion regarding Charges 1 and 2

  1. After reviewing at length the facts and circumstances relating to the administration of the vitamin complex to the O’Brien horses and Magicool, I have reached the following conclusions:

(a) Dr Brennan was the principal perpetrator who injected vitamin complex into the drips administered to the O’Brien horses and Magicool. Dr Brennan either administered the drips personally, or directed other veterinarians to administer the drips.

(b) O’Brien and Kavanagh had no knowledge of the administration of any prohibited substance to any of their horses. They had no knowledge, inkling or suspicion that Dr Brennan was intending to use material from a bottle of vitamin complex of unknown provenance in the drips for their horses.

(c) Neither O’Brien nor Kavanagh or any person in their employ had any awareness of the intended administration of material from the vitamin complex bottle. They discovered the true position long after the event.

(d) While they discussed and were familiar in general terms with the contents of the drips administered by Dr Brennan, Dr Brennan did not disclose to them his use of the contents of the vitamin complex bottles. He did not record the administration of vitamin complex in the records relating to each horse.

(e) Neither O’Brien nor Kavanagh had ever shown any interest in cobalt or prohibited substances. They have unblemished records over a long period. Although both capable and experienced trainers familiar with the racing industry, neither had ever undertaken any research or made any inquiries about the administration of cobalt or any other prohibited substance. Administration of prohibited substances was not within their contemplation.

(f) O’Brien and Kavanagh reasonably expected Dr Brennan, a highly respected veterinarian, to adhere to the Rules of Racing and the ethical standards of a veterinarian. They did not expect the undisclosed use by him of a bottle of an unknown substance without proper labelling. This was a direct and serious breach of his professional duties as a veterinarian to them and to their horses. He had no excuse for doing so. It was not something that O’Brien or Kavanagh ever wanted, expected or suspected.

(g) As far as O’Brien and Kavanagh knew, the drip program was under trial as a substitute for the drench program. The programs had similar objectives, although the drip program was thought to be more effective, and better controlled.

(h) This is not a case of wilful blindness, rather O’Brien and Kavanagh did not know anything about the administration by Dr Brennan of material from a vitamin complex bottle. They had no reason to suspect that a leading veterinarian would direct or permit anything of the sort to occur. They were surprised, if not stunned, when they learnt the truth. They continued to believe that Dr Brennan could not have done what was alleged long after the stewards’ inquiry had commenced.

  1. I conclude that RVL has failed to prove on the balance of probabilities to a comfortable level of satisfaction that O’Brien or Kavanagh caused the administration of a prohibited substance to the O’Brien horses and to Magicool. It has failed to establish that O’Brien or Kavanagh caused Dr Brennan or veterinarians directed by Dr Brennan to administer a prohibited substance at all or to the requisite standard of proof required by the Rules of Racing.
  2. I find that RVL has not proven on the balance of probabilities to a comfortable level of satisfaction that O’Brien or Kavanagh:
  3. Charges 1 and 2 fail. They also fail because of the objection to the admissibility of test results. As set out later in these reasons, I uphold this objection.

Charge 3

  1. Charge 3 is preferred under AR 178. Were it not for the objection relating to test results, I would accept the submission of RVL that Charge 3 is established against O’Brien in the case of each of the O’Brien horses and against Kavanagh in the case of Magicool. It does not require proof of intention or purpose.
  2. This finding is however subject to the objection made by O’Brien and Kavanagh as to the admissibility of the test results. As will be seen later in these reasons, I uphold this objection. For this reason, Charge 3 fails against O’Brien and Kavanagh.

Charge 4

  1. Charge 4 is preferred under AR 175(k). These charges allege that O’Brien and Kavanagh failed to make any or any sufficient enquiries of Dr Brennan as to the substances that were to be administered by Dr Brennan or employees of the clinic to the respective horses, and that their conduct or negligence led, or could have led, to breaches of the Rules of Racing by Dr Brennan or employees of the clinic.
  2. I am not satisfied that Charge 4 is proven on the balance of probabilities to a comfortable level of satisfaction because:

(a) Both O’Brien and Kavanagh relied on Dr Brennan, as a leading veterinarian, and as a senior partner of the clinic to use his professional skill to ensure that the drips were properly administered. It was appropriate and reasonable for them to use only professional persons to administer drips rather than do so themselves, or use unqualified and less experienced staff to do so.

(b) Employment of veterinarians to administer drips was intended by O’Brien and Kavanagh to result in the administration of drips by highly skilled qualified professionals. It is not negligent to ask highly qualified veterinarians to administer drips.

(c) Both O’Brien and Kavanagh did discuss with Dr Brennan what was to be achieved in the drip program. They did discuss with Dr Brennan the vitamins and additives that were to be used. They did not overlook their responsibilities in this regard.

(d) The problem was that Dr Brennan did not disclose to them that he intended to use or was using material from a vitamin complex bottle of unknown content. O’Brien and Kavanagh were the victims of Dr Brennan’s non-disclosures and misrepresentations. Dr Brennan failed to record the use of vitamin complex in the administration sheets relating to each horse. He did not disclose the use of material from the vitamin complex bottles to them or even to his own staff or partner.

(e) O’Brien or Kavanagh had no knowledge of the vitamin complex bottles or their lack of provenance.

  1. Charge 4 fails in relation to the O’Brien horses and Magicool. It also fails because of the objection to the admissibility of test results. As is set out later in these reasons, I uphold this objection.

Objections as to the admissibility and accuracy of test results

  1. O’Brien and Kavanagh raise a number of objections to the admissibility and accuracy of the test results. They contend:
  2. I will now turn to address each of the objections in the same order.

1. Were the test results inaccurate due to the use of vitamins, supplements or other therapeutic products?

  1. The first objection is to the accuracy of test results and whether they could be due to the use of vitamins such as vitamin B12, supplements such as VAM or standard therapeutic products.

Documentation and evidence

  1. Racing Victoria Ltd relies on certificates of analysis and test reports from ChemCentre and HKJCL to prove the test results of the samples taken from the O’Brien horses and Magicool. RVL supports the certificates of analysis and test reports with the evidence of Charles Russo, Dr Terence Wan and David Batty, as well as by expert evidence from leading experts.

Professor Brynn Hibbert

  1. Professor Hibbert is an emeritus Professor of Analytical Chemistry at the University of New South Wales. He held the Chair of Analytical Chemistry at the University of New South Wales from 1987 to 2013.
  2. He undertook calculations of the total cobalt equivalent in the substances (excluding the vitamin complex) said to have been administered to the O’Brien horses and Magicool. He calculated that the probability of a cobalt mass concentration in a ‘regular’ horse exceeding the permitted cobalt concentration of 200µg/L was a number so small as to be practically zero.

Dr Martin Wainscott

  1. Dr Wainscott, veterinarian of the Emirates Racing Authority, Dubai, United Arab Emirates provided reports as to the effects or potential effects of cobalt on horses.
  2. He advised that a clinical trial conducted by him for Harness Racing NSW showed that the average half-life[111] for the production of cobalt administered intravenously in urine was 48 minutes, and the average half-life for washout was 4.9 hours.
  3. Notwithstanding lengthy cross-examination as to the factors affecting horses that might alter his conclusions or affect their accuracy, his evidence was unmoved. I accept his evidence, which assists in understanding the magnitude of the amount of cobalt that must have been administered.

Associate Professor Stuart Paine

  1. Dr Paine is an Associate Professor of Veterinary Pharmacology at the School of Veterinary Medicine and Science within the University of Nottingham.
  2. He examined the race date urine cobalt concentrations of the O’Brien horses and Magicool determining that they were highly improbable in the normal horse population. He concluded that the dosing regimes used for the O’Brien horses and Magicool involved the administration of a higher cobalt dose and/or administration nearer to competition than set out in the administration spreadsheets relating to each horse.
  3. He was not cross-examined.

Dr Brian Stewart

  1. Dr Stewart said that at the time when LR 68A was introduced, research was undertaken as to the administration and ingestion of cobalt in an organic form.
  2. Cobalt is part of the vitamin B12 molecule and is about 4.4% of the mass of the molecule. If vitamin B12 is administered at recommended doses and a proprietary registered product is used, the amount of cobalt going into a horse is tiny. It does not impact significantly on urine cobalt levels. Unless huge doses are used, vitamin B12 will have no significant impact all on urine cobalt levels.

Dr Terence Wan

  1. Dr Wan is the Head of the Racing Laboratory of the Hong Kong Jockey Club.
  2. Racing Victoria Ltd provided Dr Wan with two test reports dated 4 March 2015 concerning the test conducted on the contents of the vitamin complex bottle. Dr Wan was asked to prepare an expert report on the likely identity of the substance which is the subject of the two reports, and if it is likely to be vitamin B12 (or concentrated vitamin B12), cobalt chloride, cobalt sulphate or some other substance.
  3. He determined that the main ingredient in a bottle of vitamin complex cannot be vitamin B12, concentrated B12[112] or cobalt sulphate and is likely to be cobalt chloride.[113]

Conclusion as to the test results

  1. Subject to the objection taken as to the admissibility of the test results which is later discussed, I accept the evidence of these witnesses on this topic including their witness statements and expert reports.
  2. I do not overlook the fact that in 2014 and for part of 2015, ChemCentre was one of only two Official Racing Laboratories in Australia engaged in the analysis of samples for cobalt concentration with the result that significant delay occurred as a result of its heavy workload. Nor do I overlook the fact that because of a dilution factor error in one case, an amended certificate of analysis had to be provided. In my view, again subject to the objection as to admissibility, all issues that arose during the hearing as to the accuracy or validity of the findings reported in certificates of analysis were satisfactorily answered and resolved.
  3. On the same basis, I accept that RVL has shown that each of the O’Brien horses and Magicool had total cobalt concentrations as alleged, and on the days alleged in the charges. I find that there was a high concentration of total cobalt in the vitamin complex bottles.
  4. I accept the evidence to the effect that the cobalt concentrations recorded were not caused by vitamin B12, VAM or other proprietary products containing cobalt administered in accordance with ordinary veterinary practice. It is scientifically and practically impossible for the concentrations of total cobalt found in the analyses of equine urine to be achieved by the standard administration of vitamin B12, VAM or like products. The evidence is entirely consistent with the administration of quantities of cobalt in the form of cobalt chloride from the vitamin complex bottles.

2. Were the testing laboratories Official Racing Laboratories under the Rules of Racing authorised to test for cobalt?

  1. The next issue raised by O’Brien and Kavanagh is whether it is necessary for the purposes of the definition of ‘Official Racing Laboratory’ in AR 1 and the operation of AR 178D(1) that the method of analysis used by the laboratory undertaking an analysis is within the scope of the NATA accreditation of the laboratory.
  2. The expression Official Racing Laboratory is defined in the Rules of Racing:

“Official Racing Laboratory" means an analytical racing laboratory that is accredited by the National Association of Testing Authorities or by a similar authority in an overseas country, and is approved by the Australian Racing Board and published in the Racing Calendar.[114]

  1. The Rules of Racing list ChemCentre, RASL and HKJCL as Official Racing Laboratories.[115]
  2. The Tribunal must determine whether the definition of Official Racing Laboratory requires that the laboratory in question complies with NATA requirements for a laboratory or whether it also requires that the method of analysis to be adopted by the laboratory for the sample to be tested falls within the scope of accreditation of the laboratory by NATA.

ISO/IEC 17025

  1. Standards are documents setting out specifications, procedures and guidelines to ensure that products, services and systems are safe, reliable and consistent. Australian Standard ISO/IEC 17025-2005 is entitled ‘General requirements for the competence of testing and calibration laboratories’. It is also a standard published by the International Organisation for Standardization (‘ISO’), and the International Electrotechnical Commission (‘IEC’). It specifies the general requirements for competency to carry out tests, calibrations and sampling.[116]
  2. The standard is applicable to all organisations performing tests or calibrations.[117] Compliance with ISO/IEC 17025 ensures that laboratories operate a quality management system in their testing and calibration activities.[118] The standard covers all aspects of laboratory competency including management, documentation, subcontracting, complaints, control, corrective action, cause analysis, audits, technical records and requirements.[119]
  3. The accreditation of laboratories by NATA is a complex and technical field involving considerable expertise in analytical chemistry and laboratory methodology. It is governed by national and international standards.

ChemCentre’s scope of accreditation

  1. ChemCentre was accredited by NATA in 2008 to test for cobalt and other elements in urine. On 20 August 2014, ChemCentre requested that its scope of accreditation be expanded to expressly include equine urine. On 2 September 2015, the scope of accreditation was updated to include the duplicate method iMET2EUMS.
  2. ChemCentre’s scope of accreditation as at 2 July 2008 included conduct of urine analysis by specified spectroscopic and spectrometric techniques for various specified metals including cobalt. ChemCentre was also authorised to conduct by in-house procedures qualitative identification of prohibited substances (and their metabolites and artefacts) as defined by the International Federation of Horseracing Authorities (‘IFHA’) and the Rules of Racing.
  3. ChemCentre’s scope of accreditation certifies that the facility complies with the requirements of ISO/IEC 17025. The scope of accreditation is expressed in technical language and contains a long list of substances, methods and processes which the laboratory is authorised to undertake. Interpretation of the scope of accreditation is difficult and complex. It requires considerable knowledge of analytical chemistry and laboratory practice. It is a field where even the experts can differ.
  4. I now turn to consider the evidence of key witnesses on their understanding of what is involved with the accreditation of an Official Racing Laboratory and the approval of a scope of accreditation.

Dr John Vine

  1. Dr Vine is a scientific consultant and former laboratory director of RASL. He has been a NATA assessor in the fields of chemical and medical testing since 1994.
  2. His reports[120] review the analyses and certificates of the official racing laboratories as they relate to the O’Brien horses and Magicool and conclude that the methods used were appropriate and the results consistent.
  3. Dr Vine said that the scope of accreditation of a racing laboratory is often written in generic terms. Racing laboratories are able to make variations to methods while the method still remains within the scope of accreditation. This included the use of the 2008 accredited method for equine urine. The changes to ChemCentre’s accreditation occurred because ChemCentre wanted to include a methodology that made specific reference to equine urine in the scope of accreditation and so submitted a method that specifically referred to equine urine.
  4. As an analytical chemist and as a NATA technical assessor, Dr Vine considered the use of the accredited method for the analysis of equine urine to be a relatively trivial change in that it only involved the dilution step. It was unnecessary to change the scope of accreditation. Racing laboratories have sufficient leeway to allow a minor change like that to be made without affecting their accreditation status. The change in dilution in the test did not require ChemCentre to resubmit the method to NATA, but merely to point out to NATA at the next re-assessment that a change had been made.
  5. Dr Vine described the accreditation of laboratories as usually based on specific techniques. The accreditation of racing laboratories is different. The scope of accreditation of a racing laboratory is very generic in its wording, and will say that the laboratory can use certain methods for the detection of drugs as defined by the Rules of Racing without naming the drugs that are covered. This enables racing laboratories to develop or adapt previously published or in-house methods. Once a review of a method has been undertaken, the method is deemed to be within the scope of accreditation, even though the method is not specifically listed. Laboratories are able to modify existing methods provided that the modifications are not significant or a major departure from existing methods. The methods that racing laboratories use do not have to be specifically numbered or individually assessed by NATA.
  6. Dr Vine said that it was not necessary in his opinion for a method for equine urine to be specifically lodged with NATA. ChemCentre could have extended the original method and been comfortable that it was allowed within the international standard and by the accreditation organisation.

Dr Brian Stewart

  1. Dr Stewart agreed that the scope of accreditation of an institution included the methods accredited by NATA that the institution can undertake. He also agreed that he would not contemplate engaging an Australian Racing Board listed Official Racing Laboratory to test for cobalt in urine using a method that was not within the scope of the laboratory’s accreditation with NATA. In his opinion, if the scope of accreditation extended to the testing of human urine, it also extended to equine urine. He said that testing for cobalt in urine is a very straightforward method.

David Batty

  1. Mr Batty is the Laboratory Director of RASL. He said that the accreditation that NATA provides to a laboratory is a general accreditation under ISO/IEC 17025. Mr Batty said that RASL had been an accredited laboratory since 1992, and had been reaccredited by NATA every two or three years since that date to the standard at the time.
  2. He said that the process of accreditation of a laboratory by NATA involves attendance at the laboratory by NATA and technical assessors who review the laboratory’s procedures, calibration, and staff training. NATA assessors go through the whole laboratory over a one to two day period, and write a report indicating any issues that the laboratory may have to address. The laboratory is required to respond to these issues, and provide evidence of conformance. Once this has occurred, the assessors update the laboratory’s scope of accreditation and issue a letter advising that accreditation has been renewed.
  3. Accreditation of a method involves engagement by NATA of a technical assessor with experience in the technique. NATA has a guideline as to how methods are validated. The data required includes data as to precision, accuracy, ruggedness and calibration. The assessor reviews the method, and decides whether it is appropriate and scientifically valid. The assessor may make comments, suggestions or improvements to the method. The assessor then reports to NATA, which provides accreditation. The accreditation process is a relatively simple process to show that the method is fit for purpose. When a method is accredited, NATA generally adds the method to the scope of accreditation.
  4. Mr Batty said that most methods are specifically accredited by NATA. While the ultimate aim of a laboratory is to have all of its methods accredited, there may be some methods that are not accredited that the laboratory is still entitled to use based on the fact that they have been validated and are scientifically fit for purpose.
  5. A non-accredited method may be used where the laboratory has not had the opportunity to have the method accredited by NATA. Accreditation is an exhaustive process, and can take quite a period of time.
  6. In 2014, both ChemCentre and HKJCL were accredited racing laboratories. ChemCentre had an accredited method for testing for cobalt in urine.
  7. Mr Batty explained that in early 2014, no laboratory in the world had an accredited method of testing for cobalt in equine urine. Many laboratories had accreditation for urine. An accredited laboratory would have to use an accredited method relating to urine to test equine urine. The only accredited methods were in relation to human urine.
  8. In 2014 when RASL chose to send the samples to ChemCentre, it had an accredited method in urine, and was going to look at the validity of the same method for equine urine. ChemCentre would ultimately confirm whether the method was appropriate. Mr Batty explained that part of the validation was to confirm whether the method would deal with the viscosity of equine urine as opposed to human urine. It was found that viscosity was not a problem so the method is essentially the same.

Hong Kong Jockey Club Laboratory’s scope of accreditation

  1. Mr Batty gave evidence that by 2014, HKJCL had been testing for cobalt in equine urine for nearly 10 years. The HKJCL’s method had not been submitted to the relevant accreditation authority because there was no international threshold at the time. HKJCL chose not to get its method accredited because it did not have a threshold level to which it could work. HKJCL was a world leader in testing for metals in equine urine.

Dr Terence Wan

  1. Dr Wan said that the international threshold for cobalt in horse urine of 100µg/L was adopted by the IFHA in June 2015. HKJCL’s quantification method for total cobalt in urine was accredited on 3 June 2015.
  2. On 12 June 2014, RASL approached HKJCL. As this date preceded accreditation of HKJCL’s method of analysis of urine samples for cobalt, HKJCL could only report quantitative results of total cobalt in urine in a test report.

Conclusion as to the meaning of ‘Official Racing Laboratory’

  1. The definition of Official Racing Laboratory in the Rules of Racing contains two requirements for an analytical racing laboratory to be classified as an Official Racing Laboratory:
  2. There is no doubt that ChemCentre and HKJCL satisfy both requirements, and did so at the relevant times.
  3. However, O’Brien and Kavanagh submit that it is necessary for RVL to go further and show that the method adopted by a racing laboratory to conduct the analysis is a method accredited by NATA as part of the scope of accreditation of the racing laboratory.
  4. I reject this submission. First, the definition of Official Racing Laboratory is clear and unambiguous. There is nothing in the definition that says any more is necessary than proof of the two requirements stated in the definition.
  5. Second, the definition of Official Racing Laboratory in AR 1 uses the word ‘means’ prior to the content of the definition. The conventional understanding of the use of the word ‘means’, as opposed to ‘includes’, is that such a definition is intended to be exhaustive.[121] There is no reference to scope of accreditation in the definition.
  6. Third, the fact that a particular method used by a racing laboratory does not appear as such in the NATA scope of accreditation does not mean that the laboratory cannot employ that method. As Dr Vine and Dr Stewart made clear, there is considerable room for interpretation of the NATA approved scope of accreditation. Laboratories are able to modify existing methods and still remain within the scope of accreditation provided that the modification is not a major departure from an existing method. The methods used by laboratories do not have to be specifically numbered or individually approved by NATA. Thus, modification of an accredited method of urine analysis to alter dilution so as to be able to analyse equine urine is considered within the scope of the accredited method.
  7. Fourth, as Dr Vine made clear, racing laboratories are able to apply methods of analysis not within their scope of accreditation provided that they are fit for purpose and scientifically accurate. Recognition of a scientific method of analysis for inclusion within the scope of accreditation may add to the recognition and reliability of the test result because the method has been technically assessed by an expert NATA assessor, but this does not mean that the laboratory is precluded from using a method which it is satisfied is fit for purpose and scientifically valid. Insofar as Mr Russo expressed a different view, I prefer the evidence of Dr Vine who has personally acted as a NATA assessor over the years.
  8. Finally, an interpretation that requires the stewards and the RAD Board to have to review the scope of methods accredited within the scope of accreditation of a laboratory would lead to a high level of complication and complexity in racing matters. Sophisticated expert evidence would often be necessary. I conclude that this was never intended when the Rules of Racing were drafted and approved. An interpretation of the definition of Official Racing Laboratory which had such a consequence should not be preferred.
  9. For these reasons, I find that ChemCentre and HKJCL were Official Racing Laboratories under the Rules of Racing at all relevant times. It follows that the samples taken from the O’Brien horses and Magicool were analysed only by an Official Racing Laboratory for the purposes of AR 178D(1).

3. Should RVL have notified O’Brien and Kavanagh of the results of screening tests?

  1. O’Brien and Kavanagh submit that the receipt by the stewards of a screening test result indicating a possible positive result is sufficient to require the stewards to notify the trainer of the horse of detection under AR 178D(2)(a) and AR 178D(5)(a).
  2. Racing Victoria Ltd contends that screening results are unreliable, and the obligation to notify the trainer of the horse of a positive finding only exists on receipt of a certificate of analysis from an official racing laboratory of a prohibited substance in a sample taken from a horse.
  3. Mr Villella and Mr Bailey gave evidence on this topic.

Dion Villella

  1. Mr Villella stated that the stewards do not notify trainers of positive screen results because they were only an indication and are not classified as a positive.
  2. The screening results sent back by ChemCentre which identified cobalt were not treated as ‘detection’ for the purposes of AR 178D(2). It was only when a quantified measurement recorded in a certificate was received from the laboratory that it was considered there was a detection and the trainer was notified.
  3. He said that he had screening results in relation to Magicool on 25 November 2014. However, he only knew of irregularities on 23 December 2014 when he received a certificate.

Terry Bailey

  1. Mr Bailey is the Chairman of Stewards of RVL. He said that the stewards’ practice is not to notify trainers of a positive or above threshold result until the first certificate is received. Screening results have been found in the past to be unreliable.

Conclusion as to notification

  1. In my view, it is clear from the reading of the Rules of Racing as a whole that the stewards’ position that ‘detection’ of a prohibited substance occurs only after a certificate of analysis is received showing that the prohibited substance is present at a level exceeding the threshold level is correct. The stewards are not obliged to notify a trainer of detection until a certificate of analysis is received by them to the necessary effect.
  2. This is the case for a number of reasons:

(a) Screening results are unreliable and are not definitive. They are not intended to be definitive. A screening test result can prove to be inaccurate after full testing.

(b) The notification of a positive result brings with it very serious consequences for the owner, trainer and stable in terms of reputational impacts and business losses as owners withdraw their horses from the affected stable. It is of the utmost importance that any findings notified by stewards are well established and entirely reliable.

(c) Review of the use of the word ‘detection’ in the Rules of Racing shows that it would be inappropriate to regard a screening test result as amounting to a detection. For example, AR 175(h)(ii) provides that it is an offence if a person administers or causes to be administered any prohibited substance which is detected in any sample taken from such horse prior to or following the running of any race. It is inconceivable that a screening test result could be sufficient to establish such an offence rather than a certificate of analysis following the administration of an approved test based in scientific method. The same logic applies to AR 178.

(d) In the case of prohibited substances like cobalt where there is a threshold level (here 200µg/L in urine), detection involves much more than identifying the presence of the substance in a sample of equine urine. It is not an offence for there to be a total cobalt concentration of less than the threshold level in equine urine. For there to be a contravention, the concentration of total cobalt found in equine urine must exceed the threshold level. Clearly there is a need for accurate measurement of the concentration of total cobalt in urine for there to be a contravention. Completion of a recognised scientific test is essential to establish the correct position.

(e) AR 178D(2)(a) and AR 178D(5)(a) both use the expression ‘a finding’ of a detection. In its normal English meaning, the concept of ‘a finding’ connotes a decision after inquiry. It is an outcome accompanied by certainty and definition. The use of this language confirms that proper testing must be conducted before there can be a finding that is to be notified to the trainer.

(f) There are other indications that a properly based scientific test must be conducted before there can be a finding of detection. AR 178D(3) refers to ‘certified findings’. This expression is consistent with the existence of a certificate of analysis from an Official Racing Laboratory. This could only follow completion of an accepted scientific test and not a mere screening test.

(g) Finally, screening tests, screening analyses and screening limits are all expressions found in AR 178EA. ‘Screening limit’ is a defined term in AR 1. This suggests that it is not a screening test alone that is intended in the context of AR 178D to establish a finding of detection.

4. Did the procedure adopted by RVL for testing samples over the period from April 2014 to August 2015 comply with the Rules of Racing?

The new procedure for cobalt analysis

  1. The first step is to describe the procedure adopted by RVL for cobalt analysis on the introduction of a cobalt threshold on 14 April 2014.
  2. In that month, ChemCentre was chosen by RVL as the preferred Australian laboratory with facilities to analyse for cobalt. A new procedure was adopted for samples to be sent to ChemCentre by RASL. Mr Batty described the procedure:

(a) RVL referred samples to RASL, and RASL retained control of the sample as the Official Racing Laboratory to which the samples were referred;

(b) RASL conducted routine testing for the presence of all prohibited substances other than cobalt; and

(c) a portion of urine from the original sample bottle was removed and placed in a new bottle, sealed with a tamper evident label and marked with a RASL laboratory number, photographed and referred to ChemCentre for analysis for cobalt (and in some instances, the presence of arsenic).

  1. Mr Batty said that initially, RVL selected sample numbers which were to be sent to ChemCentre. Those samples were sent intact for routine analysis for all prohibited substances including cobalt by ChemCentre. Later, after discussions with representatives of RVL, the new procedure was adopted.
  2. In terms of reporting the results, Mr Batty said that it is not RASL’s practice to report routine numerical screening results which exceed established threshold levels to racing clients. Positive results are only reported after confirmatory analysis. In this instance, batch reports of the screening results received from ChemCentre were sent by RASL to RVL, which was then notified that a further portion of the sample would be sent to ChemCentre for confirmatory analysis. Confirmatory analysis is more rigorous than initial screening and ordinarily involves quadruplicate tests of both the sample and a cobalt spiked urine sample at the threshold of 200µg/L. By comparison, initial screening is likely to be conducted as a single test.
  3. ChemCentre was accredited to test for cobalt in urine in April 2008. Equine urine was specifically added to its NATA accreditation on 26 November 2014. The typical timeframe for provision of a confirmatory analysis was between two and four weeks. ChemCentre provided a certificate of analysis in relation to the confirmatory test. If the confirmatory analysis confirmed the presence of cobalt above the threshold, Mr Batty notified RVL and arranged for the reserve unit sample and control sample (ie the whole sample) to be sent to the Hong Kong Jockey Club Racing Laboratory for a referee analysis. Results of the confirmatory analysis of the reserve urine and control samples were provided by HKJCL within two to three weeks.
  4. Mr Ashby was employed by RVL as a Stipendiary Steward in 1994. From 2008 to October 2015, he was a Senior Stipendiary Steward and the Manager, Steward Compliance and Regulation.
  5. Mr Ashby described the new testing procedure adopted by the stewards following the adoption of LR 68A. The new procedure was necessary because RASL was unable to test for cobalt. The new procedure entailed:

(a) RASL splitting out portions of the ‘A’ portion of the urine sample, retaining one portion for itself to test for prohibited substances other than cobalt, sending one portion to ChemCentre, and retaining the remainder of the ‘A’ sample in storage. RASL would also retain all of the ‘B’ portion of the sample in the event that a prohibited substance was detected and the portion needed to be referred to another Official Racing Laboratory under the Rules;

(b) RASL testing for all prohibited substances, except cobalt and arsenic;

(c) ChemCentre conducting screening testing for cobalt and initially arsenic;

(d) where an above threshold result was obtained on a screen test by ChemCentre, RASL would split a further portion of the ‘A’ sample and send it to ChemCentre for confirmatory analysis;

(e) ChemCentre confirming the detection of an above-threshold cobalt concentration in the ‘A’ sample by the issue of a Certificate of Analysis; and

(f) RASL sending the ‘B’ sample, together with the control, to HKJCL for confirmation testing and issue of a test report.

  1. The evidence given by Mr Batty and Mr Ashby as to the procedure adopted by RVL and RASL over the period from April 2014 until August 2015 is similar. The evidence is also consistent with numerous emails and communications between RVL, RASL, ChemCentre and HKJCL over the period. These procedures were followed in the testing of the O’Brien horses and Magicool.

Did the new procedure comply with the Rules of Racing particularly AR 178D(2), (4) and (5)?

  1. The second step is to consider whether the new procedure adopted by RVL in April 2014 complies with the Rules of Racing, especially AR 178D(2), (4) and (5). To do so, it is necessary to review the evidence given by the stewards and by laboratory directors.

Kane Ashby

  1. Mr Ashby was asked whether the procedure adopted by the stewards to test urine samples complied with AR 178D. He said that it was open to RVL to conduct its affairs in the agreed process that it did, but that AR 178D was not covered in its entirety.
  2. He said that this had occurred because RASL wanted to retain custody of the samples. While RVL’s opinion was that the samples should go direct to ChemCentre, RASL got its way. Mr Ashby said that he challenged the position on many occasions throughout this process.
  3. As RASL could not test for cobalt, Mr Ashby’s recommendation to his seniors at RVL was that full packaged samples should go direct to ChemCentre. He said that he strongly voiced his opinion, which was also the opinion of others, and robust discussion took place.
  4. Mr Ashby said that he knew that the Rules of Racing were being breached, but that it was an agreed decision, based on discussion with the relevant parties including RASL.
  5. Mr Ashby agreed that there was no discretion given to the stewards as to whether AR 178D applied to them or not.
  6. He agreed that what must occur under AR 178D(2)(b) is that the official racing laboratory which detected the prohibited substance nominates another official racing laboratory and refer the reserve portion of the same sample to it. ChemCentre did not nominate HKJCL or refer the reserve portion of the sample to HKJCL.
  7. ChemCentre did not notify their findings to the stewards under AR 178D(2)(a). They advised their findings to RASL, which was acting as an agent for RVL. ChemCentre did not nominate another official racing laboratory or give control of the sample to HKJCL. He agreed that the point of the protection in the system was that there was continuity between the first and second official racing laboratories.
  8. Mr Ashby said that the only part of AR 178D(2) that was complied with was that ChemCentre told RASL the result. Initially, Mr Ashby considered that AR 178D(1), (2) and (3) applied, rather than those provisions followed by AR 178D(4) and (5). In later questions he agreed that on the basis that RASL could not test for cobalt or arsenic, AR 178D(4) was engaged.
  9. Mr Ashby agreed that certified findings of both official racing laboratories were required under AR 178D(3), before there was prima facie evidence that a prohibited substance had been detected for the purpose of the Rules of Racing.

Terry Bailey

  1. Mr Bailey described the different procedure adopted for the cobalt testing of urine samples as ‘not strictly’ in accordance with the Rules of Racing. He agreed that there was no rule that permitted the stewards to act in breach of the Rules. No one has any authority to do that.
  2. Mr Bailey said that he did not know that the stewards were breaching the Rules, and that the new system going forward would be in breach of the Rules in relation to AR 178D. He said the rules were not followed to the letter. He did not remember any robust discussions with Mr Ashby about the fact that the procedure to be put in place was in breach of the Rules but he did not dispute that they occurred.

David Batty

  1. Mr Batty said that RVL requested that RASL log the samples then send the samples in their entirety. A part of RASL’s accreditation allowed it to subcontract testing that it was not able to perform. The new procedures were seen as a simple subcontracting arrangement where RASL portioned off a sample to be sent to a laboratory where RASL was unable to do the testing itself.

Charles Russo

  1. Mr Russo said that up to mid-June 2014, ChemCentre received the entirety of the urine samples, and undertook all of the screening tests. If a positive was identified, a second laboratory would be nominated, and the control urine sample (which is the second urine sample) would be sent to the second laboratory. The original urine sample would be retained by ChemCentre.
  2. From mid-June 2014, ChemCentre was sent only an aliquot[122] of the sample, and not the entirety of the sample. It was never contemplated that in the event of a positive being detected for cobalt, that ChemCentre would do anything other than report the positive back to RASL. ChemCentre was not involved in identifying the second laboratory for the confirmatory analysis. It did not receive the control wash or the B sample.
  3. ChemCentre was asked to screen the sample for cobalt, and provide a report detailing the results of those screens. ChemCentre only had the original aliquot of the urine. It was not prepared to confirm on this basis. Another aliquot was preferred to work with.
  4. Mr Russo agreed that the procedure adopted after June 2014 could slow things down by weeks or months.

Dion Villella

  1. Mr Villella said that when LR 68A came into effect in April 2014, ChemCentre was chosen as the preferred Australian laboratory with facilities to analyse for cobalt as it was a government organisation with a dedicated laboratory.
  2. Mr Villella said that random race day samples of urine were sent to ChemCentre by RASL because RASL did not have the testing capability to analyse for cobalt.
  3. Mr Villella said that the procedure for handling samples adopted in June 2014 was for metropolitan samples to be sent to RASL. RASL would have control of the sample to the exclusion of RVL, and would deal with the sample on RVL’s behalf. RASL would split the sample and send part of the urine sample to ChemCentre.
  4. Mr Villella agreed that under AR 178D(5)(b) it was mandatory that ChemCentre nominate the second laboratory after it had completed testing. He said that RASL sent samples to HKJCL. The sample was not sent by ChemCentre to HKJCL as required under AR 178D(5)(b). If AR 178D5(b) had been complied with, it would have been ChemCentre that made the decision on where the sample was to go. ChemCentre did not nominate another official racing laboratory, or refer a reserve portion of the same sample to it as required under AR 178D(5)(b).

Conclusion as to compliance with AR 178D(2), (4) and (5)

  1. The stewards and witnesses called by RVL acknowledge that the sample testing procedure adopted by RVL over the period from about April 2014 until about August 2015 was not compliant with AR 178D, particularly AR 178D(2), (4) and (5). It was over this period that the samples from the O’Brien horses and Magicool were obtained and tested.
  2. I accept the evidence given by the Mr Batty, Mr Russo, Mr Bailey, Mr Ashby and Mr Villella as to the sample testing procedure adopted over this period, I also accept their evidence that the procedure adopted by RVL did not comply with all of the requirements of AR 178D.

What was the extent of the non-compliance by RVL with the requirements of AR 178D?

  1. AR 178D governs the sample testing and reporting regime to be adopted by the stewards and by laboratories where samples are taken from horses in pursuance of the stewards’ power in AR 8(j).
  2. Under the procedure adopted over the period from April 2014 to August 2015, the stewards referred samples to RASL. RASL undertook testing for all prohibited substances other than cobalt and initially arsenic. RASL was unable to analyse for the presence of cobalt. This engaged AR 178D(4). However, it only referred successive aliquots of the sample to ChemCentre first for screen testing and then for full testing. It retained control. It did not refer the whole sample to ChemCentre.
  3. In the event of detection of cobalt by ChemCentre, ChemCentre was required by AR 178D(5)(b) to nominate another Official Racing Laboratory and refer a reserve portion and control of the sample to it. It did not do so. Control of the sample remained with RASL.
  4. The procedure described in AR 178D(5) did not occur. Under the procedure adopted by the stewards, it was RASL and not ChemCentre that nominated the second Official Racing Laboratory under AR 178D(5)(b). It was RASL and not ChemCentre that was responsible for referring a reserve portion of the sample to HKJCL. ChemCentre did not perform these functions. It never had control of the sample or the reserve portion. It only ever received aliquots of the sample. It was RASL and not ChemCentre that was responsible for informing the stewards of the results of ChemCentre’s analysis. There was no secure transfer or continuity in the handling of the sample between the first and second official racing laboratories.

5. Given the non-compliance by RVL with AR 178D, can the test results still be admitted into evidence or relied on by RVL against O’Brien and Kavanagh?

  1. O’Brien and Kavanagh object to the admissibility and receipt into evidence of the certificates of analysis and test reports relating to the O’Brien horses and Magicool because of the failure by RVL to comply with AR 178D. RVL submits that the certificates of analysis and test reports should be admitted and received into evidence regardless of RVL’s non-compliance.
  2. Determination of this objection requires consideration of the Rules of Racing and what the Rules say as to testing for prohibited substances. Importantly, the Tribunal is asked to determine whether charges dependent on the results of the analysis of samples taken under AR 8(j) must be dismissed if the stewards or official racing laboratories substantially depart from the procedure in AR 178D.

Legal basis of the Rules of Racing

  1. To consider the objection made by O’Brien and Kavanagh, it is first necessary to consider the legal basis of the Rules of Racing.
  2. In Meyers v Casey,[123] the High Court described the Rules of Racing as a contract between the parties.[124] A contract is only valid and binding on the parties to the contract. In Clements v Racing Victoria Limited,[125] the Tribunal held that a punter was not bound by the Rules of Racing. He was not a licensed person and had not agreed to be bound by the Rules.[126]
  3. As a result of this decision, s 5F was inserted into the Racing Act 1958 (Vic) (‘Racing Act’) affording statutory recognition to the Rules of Racing and extending their operation to persons attending a race meeting or participating in an activity in connection with or involving horseracing or wagering on horseracing.[127]
  4. The result is that the Rules of Racing have effect both under contract law and under statute. Both the principles of statutory construction and the principles governing the construction of contracts may assist in construing the Rules of Racing.[128]

Contractual analysis

  1. In Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd,[129] French CJ, Nettle and Gordon JJ said:

The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.

In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable business person would have understood those terms to mean. That enquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.[130]

  1. In terms of contractual analysis, AR 178D(1), (2), (4) and (5) have all the hallmarks of stipulations that are conditions subsequent to the exercise of the power given in AR 8(j).[131] AR 178D expressly refers to samples taken ‘in pursuance of’ the exercise of the specified powers. While AR 178D(4) is facilitative, AR 178D(1), (2), and (5) all use mandatory language including words like ‘shall’, ‘only’ and ‘is to’. There is a clear intent that these provisions are to be adhered to when samples taken under AR 8(j) are analysed and certified.
  2. AR 178D sets out the protocol for sample testing and certification to be adopted by the stewards and racing laboratories alike when samples taken under AR 8(j) are to be analysed. AR 178D(1), (2), (4) and (5) are not only conditions subsequent. They are conditions the performance of which is in the hands of the stewards alone, assisted by racing laboratories.
  3. The role of AR 178D(3), and (6) is different. They are certification provisions which would permit the stewards, on showing compliance with the necessary preconditions, to produce certificates of analysis as evidence of the detection of a prohibited substance in a sample taken from a horse. Certificates of analysis are prima facie evidence but are not conclusive. Evidence can be called which would have the effect of bolstering or diminishing the weight that might be given to a certificate. Such evidence might be called by the stewards to show that it was highly likely that the certificates of analysis were accurate or to show that the certificates of analysis were unreliable, and did not provide the necessary level of satisfaction that the samples analysed exceeded the threshold level for a prohibited substance.
  4. Non-compliance by a party to a contract with a condition subsequent is ordinarily treated as a serious matter particularly if compliance with the condition is solely within the control of one party to the contract alone. Thus a contract might be rendered voidable or a power might be taken as not validly or effectively exercised.[132]

Fundamental principles of statutory interpretation

  1. While not displacing the principal obligation of courts and tribunals to give effect to the words of the relevant provisions, the meaning that the legislature is to be taken as intending is determined in accordance with established principles of statutory interpretation.[133] I have earlier set out the fundamental principles that apply to the interpretation of a statute or instrument authorised by statute. These principles stand to be applied to the construction of AR 178D.

Statutory purpose of AR 178D

  1. In construing AR 178D, the purpose of AR 178D and the language used in the provision provide important guides:

(a) AR 178D prescribes the procedure to be adopted when samples are taken from horses by the stewards in the exercise of the powers in AR 8(j). The object underlying the provisions in AR 178D is to ensure that samples taken from horses are subjected to scientific analysis by two approved specialist laboratories in accordance with a stipulated protocol directed by the Rules of Racing.

(b) The protocol is needed for the protection of owners, trainers and other persons bound by the Rules of Racing. At common law, samples could not be taken from a horse without the owner’s consent. Once a sample is taken, the sample is solely within the control of the stewards. The protocol ensures that the interests of all affected persons are safeguarded, and that all are fairly dealt with by testing samples in accordance with the prescribed procedure.

(c) The language found in AR 178D(1), (2), and (5) is of a mandatory nature. Imperative words are present in each of these provisions.

(d) Under s 45(2) and (3) of the Interpretation of Legislation Act 1984 (Vic), the use of the word ‘shall’ would ordinarily convey the meaning that the power must be exercised. What is required must be done.

(e) As stated by French CJ in Momcilovic v The Queen,[134] the principle of legality requires that ‘statutes be construed where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law’.[135] O’Brien and Kavanagh carry on businesses as licensed horse trainers. A penalty of up to three years disqualification can result from a finding of a breach. A construction which would preserve their right to insist on compliance with AR 178D would appear appropriate.

Other relevant principles of interpretation

  1. I now turn to some additional legal principles that may assist in the interpretation of AR 178D. The first is the principle that if an enactment specifies in affirmative language the procedure or course to be followed that provision should be treated as the source of authority in the matter and negatives the existence of any other more general authority as to the same matter. The decided cases set out the principle.
  2. In R v Wallis; Ex parte Employees Association of Wool Selling Brokers,[136] Dixon J said:

This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.[137]

  1. In Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia,[138] Gavan Duffy CJ and Dixon J said:

When the Legislature explicitly gives a power by a particular provision which prescribed the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.[139]

  1. In ABB Power Plants Ltd v Electricity Commission of New South Wales,[140] Handley JA said:

It has long been established that contractual or statutory provisions prescribing in positive terms a procedure to be followed necessarily imply that the same matter will not be dealt with under a different procedure.[141]

  1. This line of authority was followed by the Victorian Court of Appeal in Plenary Research Pty Ltd v Biosciences Research Centre Pty Ltd.[142] It is true as noted in that decision that a caution was recorded by Toohey and Gummow JJ in PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service,[143] who said:

the maxim must always be applied with care, for it is not of universal application and applies where the intention it expresses is discoverable on the face of the instrument.[144]

and Nettle JA said in Australia Pacific Airports (Melbourne) Pty Ltd v The Nuance Group (Australia) Pty Ltd:[145]

Expressio unius est exclusio alterius and kindred syntactical presumptions are problematic at the best of times ...[146]

  1. There are two other principles of interpretation which assist.

Giving effect to a specific provision

  1. Another principle of interpretation that assists is that while an Act, or in this case the Rules of Racing, are construed as a whole, effect must be given to each specific provision or rule and sub-rule. Rules and sub-rules should not ordinarily be treated as surplus or redundant. Nor should rules or sub-rules be treated as nugatory, ineffective or lacking in utility.
  2. In Chapmans Ltd v Australian Stock Exchange Ltd,[147] Lockhart and Hill JJ said:

It is an elementary proposition that a contract will be read as a whole giving weight to all clauses of it, where possible, in an endeavour to give effect to the intention of the parties as reflected in the language which they have used. A court will strain against interpreting a contract so that a particular clause in it is nugatory or ineffective, particularly if a meaning can be given to it consonant with other provisions in a contract.[148]

  1. To similar effect, in Duvoro Pty Ltd v Wilkins,[149] Finkelstein J said:

Speaking generally, it is not permissible to construe one part of a contract so as to render inoperative or as surplusage another part.[150]

  1. If the stewards are at liberty to depart from the requirements set out in AR 178D (1), (2), (4) and (5) but can nonetheless rely on the testing and analyses of samples obtained under AR 8(j), the question arises whether the provisions of AR 178D have any utility or efficacy. Having regard to the role and language of AR 178D, it would be surprising if its provisions could simply be ignored or disregarded without affecting the admissibility of the test results obtained by a non-compliant method. What would be the purpose or utility of AR 178D if its provisions could simply be ignored or contravened without any consequence?
  2. While the need to give efficacy to the provision of a contract is not a strong indicator in every circumstance,[151] AR 178D directs stewards and laboratories alike as to how testing is to be conducted and test results reported. It is hard to see why non-adherence to the requirements for testing, and analysis contained in AR 178D(1), (2), (4) and (5) should not bring with it the consequence that the test results cannot be relied on by RVL. Any other result would only give lip service to the need to comply with the Rules.

Penalty provisions

  1. A final principle that can be applied is the principle of interpretation applying to penalty provisions. This is discussed above. AR 178D is a provision found within the offences provisions of the Rules of Racing.

Cases cited

  1. The parties referred to three cases as giving assistance in the construction of AR 178D. The first was Harper v Racing Penalties Appeal Tribunal of Western Australia[152] (‘Harper’), in which the Full Court of the Supreme Court of Western Australia referred to certified findings under AR 178D(3) as being prima facie evidence and as not precluding reliance on other evidence.[153]
  2. I agree with the view expressed by the Full Court in Harper[154] that the introduction of certificates of analysis into evidence does not preclude reliance on additional evidence. Additional evidence might strengthen or weaken the weight to be given to the certificates of analysis.
  3. However, in Harper,[155] there was no issue about compliance with the requirements of AR 178D. In fact, there was an express finding that the procedures in AR 178D(1) and (2) were followed.[156] There was no reason why the certificates of analysis should not be tendered in evidence. There was no non-compliance with AR 178D suggested or found.
  4. The second case is a recent decision of the Queensland Racing Disciplinary Board (‘QRDB’), In the matter of Darryl Hansen.[157] In this case, the QRDB upheld an appeal by a trainer against disqualification for presenting a horse on race day with a prohibited substance within a body system. The appeal was upheld on the basis that the RASL employee who analysed the samples was not duly accredited under the Racing Act 2002 (Qld). The QRDB found that the handling and analysis of the samples in contravention of the accreditation requirements invalidated the certificate of analysis produced by RASL. It said:

In arriving at this decision the Board was mindful that Racing Queensland is a body created by Statute of the Queensland Parliament. It was the control body of the three codes of Racing in this State and model litigant principles applied to it.

...

The decision of this Board is that there is no discretion to be exercised. Either the reception and analysis of the “B” sample complied with the requirements of the Act or it did not. This is a mandatory provision of the Act. It is not optional for Racing Queensland or any other authority to fail to comply with the provisions of the Act.

The legislature has imposed, for sound policy reasons ... an obligation on an accreditation holder to ensure that the information contained within the certificate is accurate so that, amongst other things, all persons have confidence in the integrity of the analysis of samples taken from the Thoroughbred Horses in Queensland. The requirements of the Racing Act do not refer to whether the results are “scientifically accurate” however they do set specific compliance requirements.

It is the decision of this Board that those mandatory compliance requirements have not been carried out and as such the “B” certificate obtained from RASL Laboratory in Victoria is a nullity.

...

The legislation in respect of the presentation rule (for the admission of certificates) is very clear.

Certificates create strict liability and all necessary protocols and procedures in the legislation must be followed or the certificates are not admissible and of no value whatsoever. In this particular case the RASL referring Laboratory for the “B” sample to be analysed did not comply with the relevant legislation for the Accreditation Certificates of the recipient of the sample or Analyst at the relevant time and we find that the certificate for the “B” sample is therefore worthless.

In these circumstances and in the absence of both certificates being valid (the “B” sample being a nullity) a prima facie case under the presentation rule cannot exist and the charge cannot be sustained. The decision of this board is that the appeal should therefore be upheld.[158]

  1. The third is also a decision of the QRDB, In the matter of Rochelle Smith,[159] in which the QRDB overturned a disqualification for the administration of cobalt. The basis of the decision was that ChemCentre, which had analysed the reserve portion of the sample taken from the horse, was not an accredited facility at the time of its analysis of the sample for the purposes of the relevant Queensland legislation. The Queensland stewards retested the reserve portion of the sample through an accredited laboratory, and sought to rely on the fresh results. The QRDB held that it was satisfied, inter alia, that:

(g) the Act required strict compliance with the terms of authorisation (by an accredited facility) for the analysis of the sample and as to how the "B" sample was to be used for confirmatory analysis. Non-accredited facilities were not contemplated at all relevant times

...

(i) It would have been unfair and a denial of justice to have allowed the use of certificates raised as a result of analysis of the "B" samples in the circumstances that existed in this [a]ppeal.[160]

  1. The QRDB decisions hold in unequivocal terms that stewards and laboratories are required to strictly comply with requirements for the analysis and certification of samples. Although there is a different legislative regime operative in Victoria, the applicants nonetheless contend that these decisions should be applied.
  2. The decisions of the QRDB are in accordance with the principle that the racing authority pressing charges relating to the detection of prohibited substances must show strict compliance with the relevant testing provisions. Ordinarily, compliance with testing requirements and protocols is non-contentious as stewards and official racing laboratories comply with the applicable testing requirements. However, it is admitted by the witnesses called by RVL that this did not happen in these proceedings.

RAD Board

  1. The RAD Board did not consider the construction of AR 178D in its decision concerning O’Brien and Kavanagh.[161] This is because the RAD Board was not informed that the samples taken from the O’Brien horses and Magicool had not been tested in accordance with the requirements of AR 178D. At the time, none of O’Brien, Kavanagh or their legal advisers knew of this issue, as they had not had the benefit of discovery of documents and inspection. The issue only emerged when the Tribunal’s powers of discovery and inspection were exercised.

The effect of the stewards’ non-compliance with AR 178D

  1. The testing of the O’Brien horses and Magicool was such that no nomination by the first official racing laboratory of the second official racing laboratory ever took place. The samples were not controlled in the manner required by AR 178D. The role of the second racing laboratory was reduced to relative insignificance. It was merely a sub-contractor analysing aliquots derived from samples solely at the direction of another. It made no independent nomination of a second racing laboratory. It did not have control over the reserve portion of any sample. The non-compliances were not trivial, insubstantial or merely technical.

Conclusion regarding the effect of non-compliance with AR 178D

  1. Whether the construction of AR 178D is under the principles relating to the interpretation of contracts, or whether considered as a matter of statutory interpretation, the result is the same. Substantial departure from the requirements of AR 178D must inevitably bring with it significant consequences, here the inability of RVL to rely on testing, analysis and certification arising from the exercise of the powers contained in AR 8(j). I reject the submission by RVL that contravention of AR 178D has no effect and that the analyses of samples taken under AR 8(j) should be admitted into evidence regardless.
  2. All of the considerations point to the conclusion that the consequence of RVL’s substantial departure from the requirements of AR 178D for the testing of equine urine samples taken from horses under the power conferred on the stewards must be the inadmissibility of the certificates and other evidence of analysis based on samples taken under AR 8(j).
  3. For the reasons which I have given, the objections by O’Brien and Kavanagh to the admissibility of the evidence and certificates of analysis provided by ChemCentre and the evidence and test reports by HKJCL provided in 2014 and 2015 must be upheld. That evidence was obtained by a procedure that substantially departed from that required by AR 178D. RVL cannot rely on the analyses of the samples taken from the O’Brien horses and Magicool under AR 8(j).

6. Do the additional test results remedy the non-compliance by RVL with the requirements of AR 178D?

  1. It was submitted by O’Brien and Kavanagh that the Tribunal should decline to receive evidence of the additional testing.
  2. Mr Batty said that on or about 12 May 2016, RVL’s lawyers requested that RASL conduct confirmatory testing of relevant samples supplied to it. Results of the confirmatory analysis were provided by RVL in June 2016.
  3. The object of the additional testing undertaken by RVL was to seek to overcome non-compliance with AR 178D in the previous testing. The additional testing is summarised in the table below:
Horse & sample number
Date sample received by RASL
Date of certificate issued by RASL
Date of sample received by HKJCL
Date of certificate issued by HKJC
Magicool
V318711
6.10.14
15.6.16
30.12.14
13.7.16
Caravan Rolls On
V324532
3.11.14
15.6.16
30.12.14
8.7.16
Bondeiger
V324540
3.11.14
15.6.16
30.12.14
7.7.16
De Little Engine
V324858
24.11.14
15.6.16
30.12.14
13.7.16
Bullpit
V333178
22.12.14
9.6.16
27.2.15
12.7.16

Objections to receipt of evidence of additional testing

  1. I do not consider that the Tribunal should decline to receive evidence of the additional test results. When exercising its review jurisdiction, the Tribunal’s task is to stand in the shoes of the original decision maker and make the correct or preferable decision having regard to the material before it.[162]
  2. In the present case, the Tribunal’s jurisdiction is conferred by the Racing Act.[163] There is nothing in the Racing Act or in the grant of jurisdiction to the Tribunal to displace the usual position which is that the Tribunal’s decision is made on the basis of the material available to the Tribunal at the date of its decision.[164]
  3. O’Brien and Kavanagh advance a second objection to the additional testing, namely that it was extraneous to the particulars of facts and circumstances that they are required to meet as set out in the charges.
  4. The charges were laid by the stewards against O’Brien and Kavanagh under LR 6C(3). LR 6C(3)(a) provides that the stewards:

must provide to the person a notice of charge specifying:

(i) the offence; and

(ii) the particulars of the facts and circumstances relating to the alleged commission of the offence.

  1. The stewards prepared a separate notice of charge in relation to each of the O’Brien horses and Magicool. Each document is in a similar form. In each case, the particulars of the facts and circumstances relied on by the stewards refer only to the samples and concentrations recorded in the original analyses by ChemCentre and HKJCL. The notices of charges do not in any case seek to rely on the analyses set out in the table above.
  2. No application was made to the Tribunal to seek to amend any of the charges to rely on the analyses set out in the table. The notices of charges to be determined by the Tribunal are in an identical form to those before the RAD Board. RVL now seeks to rely on particulars of facts and circumstances extraneous to those that are before the Tribunal and were before the RAD Board.
  3. In my view, it is not able to do so, not having sought to amend the particulars of facts and circumstances relating to the alleged commission of each offence under LR 6C(3)(a)(ii).

Was the additional testing conducted within a reasonable time?

  1. There is another difficulty relating to the additional testing carried out by RVL in June 2016. While there is no specific time frame in AR 178D for sample testing to be undertaken, the law would ordinarily imply a requirement that the duties imposed by AR 178D be undertaken and completed within a reasonable time in all the circumstances.[165] While this argument was not raised by O’Brien and Kavanagh, the obligation to act within a reasonable time is well established in law.[166]
  2. The language of AR 178D contains indications that some promptness and expedition are required in discharging the duties and responsibilities contained in AR 178D. AR 178D(2) and (5) uses language such as ‘[u] pon the detection by an Official Racing Laboratory of a prohibited substance in a sample taken from a horse such laboratory shall ...’. After the notification of detection to the stewards, the stewards are required ‘thereupon’ to notify the trainer of the horse of such finding.
  3. I am satisfied in the circumstances of this case that a period exceeding 15 to 18 months from the relevant races and six months after the RAD Board decision exceeds what is a reasonable time for sample testing. It would be unjust and unfair to owners, trainers and punters if they had to wait for such a period before it was known whether a horse was disqualified or prize money forfeited.

Is additional testing consistent with AR 178D?

  1. A final difficulty with additional sample testing is that it is simply not a procedure known to, or authorised by AR 178D. Two sample tests are required by AR 178D. A third and fourth test of samples is unknown to AR 178D. The first two tests were undertaken and completed. The legal effect of this testing is addressed above. AR 178D does not authorise the conduct of a third and fourth test if the first two tests are non-compliant with AR 178D.

Conclusion as to the additional testing

  1. For these reasons, I am of the view that the additional testing does not assist RVL to overcome the deficiencies in compliance with AR 178D that exist in the conduct of the first two tests.

Estoppel

  1. O’Brien and Kavanagh claim estoppels to prevent what they say is an unjust departure by RVL from a common assumption adopted by them as the basis of some act or omission which, unless the assumption is adhered to, would operate to their detriment. The estoppels claimed are estoppels by convention.[167]

The first estoppel claim

  1. O’Brien and Kavanagh contend that the Rules, and in particular AR 178D(2) and (5) record a common understanding between the stewards and trainers to the effect that upon notification of a detection by an Official Racing Laboratory to the stewards, the stewards must immediately or shortly thereafter notify the trainer that a prohibited substance has been detected. This would allow the trainer an opportunity to alter his or her treatment regime, withdraw or scratch a horse or refrain from accepting in forthcoming races.
  2. I reject this claim for estoppel for the following reasons:

(a) As I have held, there is no obligation on the stewards to advise a trainer of the adverse result of a screening test. RVL was not required by AR 178D or any other provision in the Rules of Racing to notify the trainers of a positive result based only on a screening test. It is correct for RVL to wait until it has received a certificate of analysis showing a positive result. The alleged basis for the estoppel does not arise.

(b) There is no satisfactory evidence of reliance by O’Brien or Kavanagh on any assumption or convention that the stewards would notify them of screen test results. Nor was there any convention of this nature. It was the stewards’ practice not to notify trainers of screening test results. Horses trained by O’Brien and Kavanagh had, and those of other leading trainers, had been tested on numerous occasions. It is improbable that O’Brien and Kavanagh did not know of the stewards’ practice or acted on a different assumption. There is no satisfactory evidence that O’Brien or Kavanagh relied on the suggested convention.

(c) Kavanagh stopped the vitamin drip program at his stable on 25 October 2014, and terminated Dr Brennan and the clinic on 12 November 2014. The stewards did not receive the screening test results of the O’Brien horses or Magicool until 25 November 2014. Again there was no reliance on the suggested convention by Kavanagh and no causal consequence to him. Kavanagh stopped the drip program before any screen results were received.

The second estoppel claim

  1. The second claim for estoppel is to the effect that the stewards had a duty to inform and warn trainers where the stewards were aware of a risk that the use of commercially available equine therapeutic products might cause levels of prohibited substances in horses that exceed those permitted by the Rules of Racing.
  2. I reject this claim for estoppel as:

(a) The excessive levels of cobalt concentration were caused by the administration of cobalt most likely inorganic cobalt chloride in solution from vitamin complex bottles. This was not the administration of a commercially available equine therapeutic product but a backyard product of unknown origin;

(b) O’Brien and Kavanagh were unaware of the administration by Dr Brennan of material from the vitamin complex bottles. They placed no reliance on the supposed assumption or convention; and

(c) It was not commercially available equine therapeutic products that caused the problem, but the use by Dr Brennan of the vitamin complex.

Conclusion as to the estoppel claims

  1. The estoppel claims fail.

Abuse of Process

  1. O’Brien and Kavanagh claim that the proceedings are an abuse of process. They seek to have the Tribunal exercise the power in LR 6D(6) to dismiss a proceeding if satisfied that it is frivolous, vexatious, misconceived or lacking in substance. They also seek to have the Tribunal exercise its power of summary dismissal in s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’).
  2. These proceedings raise significant evidentiary issues including whether Dr Brennan’s account or that of O’Brien and Kavanagh is to be believed. They also raise important issues of law including the meaning and effect to be given to AR 178D.
  3. I am not persuaded that the proceedings are an abuse of process by RVL. RVL was entitled to bring proceedings against the applicants, and to defend the appeal to the Tribunal. There is nothing about RVL’s conduct of the proceedings before the Tribunal that might constitute an abuse of process.
  4. I reject the submission by O’Brien and Kavanagh that the charges:

(a) are an unreasonable exercise of the stewards’ prosecutorial discretion under LR 6C(2);

(b) are so clearly and manifestly hopeless in fact or law that they should never have been brought;

(c) were brought for a collateral or ulterior purpose such as to embarrass, annoy or unfairly prejudice the applicants; or

(d) are obviously untenable or manifestly groundless.[168]

  1. I hold that no proper basis has been shown for the exercise by the Tribunal of the powers in LR 6D(6) or s 75 of the VCAT Act.

RAD Board

  1. The conclusions that I have reached follow a lengthy hearing preceded by comprehensive discovery and production of documents. Subpoenas requiring witnesses to attend and give evidence, and to provide documents have assisted in the administration of justice.
  2. The Tribunal has had the benefit of the advocacy of very experienced counsel, and of expert evidence from veterinary laboratory directors and world reputed experts. All of this has given the Tribunal considerable insight as to what took place, and the issues concerning the testing of samples.
  3. The RAD Board did everything possible with the evidence and information it had. However, the Tribunal’s processes as utilised by the parties have provided the Tribunal with significant insight and knowledge. The issues before the Tribunal include an important issue simply not known at the time of the RAD Board hearing viz the non-compliance of sample testing with AR 178D.

Conclusion

  1. In this case, there is no doubt that cobalt, most probably cobalt chloride, was administered to the O’Brien horses and Magicool. RVL has caught the perpetrator responsible for administration who is Dr Brennan. He has been sentenced and disqualified. The issue before the Tribunal is whether O’Brien and Kavanagh are guilty of offences against the Rules of Racing.
  2. After a full review of the detailed evidence gathered by the stewards over a lengthy investigation, and having heard the evidence of numerous lay and expert witnesses, it is clear that O’Brien and Kavanagh are victims of Dr Brennan. They have not committed any offence under the Rules of Racing. It would be a serious denial of justice if they were held responsible for what was done without their knowledge, consent or involvement. Their lives and businesses have sustained major adverse consequences in a saga extending over two and a half years.
  3. The issue concerning compliance by RVL with AR 178D is a discrete issue. AR 178D of the Rules of Racing governs the testing of samples taken from horses. In this case, sample testing substantially departed from the requirements of AR 178D. The legal consequences of adopting the testing procedure that substantially departs from the test requirements set out in AR 178D is the inadmissibility of the test results.
  4. For these reasons the applications for review will be allowed and the charges against O’Brien and Kavanagh will be dismissed.



Justice Greg Garde AO RFD President

[1] The stewards of RVL are referred to as ‘the stewards’.

[2] The Rules of Racing of Racing Victoria (‘the Rules of Racing’) incorporate the Australian Rules of Racing, made by the Australian Racing Board, and the Local Rules of Racing, made by RVL. Australian Rules are described as ARs and Local Rules are described as LRs.

[3] RVL Stewards v Danny O’Brien, Mark Kavanagh and Dr Tom Brennan, Racing Appeals and Disciplinary Board (23 December 2015).

[4] Racing Act 1958 (Vic) s 83OH; Maund v Racing Victoria Ltd [2016] VSCA 132 [37].

[5] Karakatsanis v Racing Victoria Limited [2013] VSCA 305; (2013) 42 VR 176, 189 [37]–[40]; Maund v Racing Victoria Limited [2016] VSCA 132 [70].

[6] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 98(1)(c).

[7] AR 2, LR 3(1)(a).

[8] Dr Charlton (nee Brown) is referred to in this decision using her name at the relevant time.

[9] AR 178C(1)(i).

[10] This certificate of analysis replaced the original certificate of analysis dated 15 December 2014.

[11] Every test is subject to some level of error. The measurement of uncertainty provides an estimate as to how large the error might be.

[12] AR 178D(1)-(6) (as amended 1 January 2015).

[13] VAM is a vitamin and mineral supplement.

[14] A saline electrolyte drip.

[15] Inquiry into the Analyst’s Findings of Prohibited Substances in Samples Taken from Horses and the Race Day Treatment of Horses in the Stable of Licensed Trainer Mr S Kavanagh (Racing NSW, R P Murrihy, K Mason AC QC, M F Van Gestel, C G Polglase, 9 June 2015).

[16] Transcript of Proceedings, Interview with Dr T Brennan via video conference (Racing NSW, R P Murrihy, K Mason AC QC, M F Van Gestel, C G Polglase, 20 July 2015), 11 546.

[17] Ibid 13, 627-634.

[18] Transcript of Proceedings, Interview with Dr T Brennan (Racing Victoria Ltd, T Bailey, D Villella, T Robinson, 20 July 2015), 3, 20–28.

[19] Ibid 3, 28–29.

[20] Ibid 44-45.

[21] Ibid 4, 18.

[22] Ibid 29.

[23] Transcript of Proceedings (Racing Appeals and Disciplinary Board, Lewis J, B Forrest, G Ellis, 1 December 2015), 118, 4 (‘RAD Board transcript’).

[24] RAD Board transcript (1 December 2016) 128, 42.

[25] Ibid 129, 37.

[26] RAD Board transcript (1 December 2016) 134.19–134.29.

[27] In the Matter of the Appeals of Mr Sam Kavanagh, Dr Tom Brennan and Dr Adam Matthews Against Decision of the Stewards Given at Sydney (Racing NSW, R Clugston, R Beasley SC T Carlton, 10 February 2016).

[28] Transcript of Proceedings, In the Matter of the Appeals of Mr Sam Kavanagh, Dr Tom Brennan and Dr Adam Matthews Against Decision of the Stewards Given at Sydney (Racing NSW, R Clugston, R Beasley SC, T Carlton, 11 February 2016), 382, 18629.

[29] Transcript of Proceedings, Kavanagh; O’Brien v Racing Victoria Limited (Victorian Civil and Administrative Tribunal, Garde J, 3 August 2016), 335, 6–8 (‘Transcript’).

[30] Peter Moody is a leading racehorse trainer who was suspended by the RAD Board in relation to a cobalt charge.

[31] Transcript (3 August 2016), 349, 10–11.

[32] Transcript (3 August 2016), 238, 7–9.

[33] Ibid 238, 13.

[34] Transcript of Proceedings, Interview with Veterinarian Dr Amy Kelly Regarding the Use of Cobalt and Caffeine in Licensed Trainer Mr Sam Kavanagh’s Stables (Racing NSW, R P Murrihy, M F Van Gestel, 13 March 2015), 16, 777.

[35] Transcript (8 August 2016), 689, 16–17.

[36] Transcript of Proceedings, Interview with Aaron Corby (Racing Victoria Ltd, D Villella, T Robinson and R Melville, 25 May 2015), 21, 42–44.

[37] Transcript of Proceedings, Interview with Dr Adam Matthews via Teleconference (Racing NSW, R Murrihy, K Mason AC QC, M Van Gestel, C Polglase, 21 July 2015), 13, 621–622.

[38] Ibid 33, 1614–1615.

[39] In the Matter of the Appeals of Sam Kavanagh, Dr Tom Brennan and Dr Adam Matthews Against Decisions of the Stewards Given at Sydney (Racing NSW, R Clugston, R Beasley SC, T Carlton, 11 February 2016).

[40] Transcript of Proceedings, Interview with Sam Kavanagh and Kelly Fawcett (Racing Victoria Ltd, D Villella and T Robinson, 19 May 2015), 10, 43.

[41] Inquiry into the Analyst’s Findings of Prohibited Substances in Samples Taken from Horses and the Race Day Treatment of Horses in the Stable of Licensed Trainer Mr S Kavanagh (Racing NSW, R P Murrihy, K Mason AC QC, M F Van Gestel, C G Polglase, 9 June 2015).

[42] Hearing of Charges Against Dr Adam Matthews Arising from an Inquiry into the Analyst’s Findings of Prohibited Substances in Samples Taken from Horses and the Race Day Treatment of Horses in the Stables of Licensed Trainer Mr S Kavanagh (Racing NSW, J D Walshe, R W Livingstone, T P Moxon, 28 October 2015).

[43] In the Matter of the Appeals of Mr Sam Kavanagh, Dr Tom Brennan and Dr Adam Matthews Against Decisions of the Stewards Given at Sydney (Racing NSW, R Clugston, R Beasley SC, T Carlton, 8–9 February 2016).

[44] Transcript (9 August 2016), 915.26–31.

[45] Transcript of Proceedings, Tape-recorded Interview between Dion Villella, Rhys Melville and Danny O’Brien (Racing Victoria Ltd, D Villella and R Melville, 14 January 2015), 19, 21–22.

[46] Transcript of Proceedings, Tape-recorded Interview between Dion Villella, Tim Robinson and Danny O’Brien (Racing Victoria Ltd, D Villella and T Robinson, 24 February 2015), 10, 45– 11, 6.

[47] Ibid 11, 13–24.

[48] Transcript of Proceedings, Tape-recorded Interview between Terry Bailey, Dion Villella, Tim Robinson and Danny O’Brien (Racing Victoria Ltd, T Bailey, D Villella and T Robinson, 21 July 2015), 2, 36–37.

[49] Transcript of Proceedings, Tape-recorded Interview between Terry Bailey, Dion Villella, Tim Robinson and Danny O’Brien (Racing Victoria Ltd, T Bailey, D Villella and R Melville, 21 July 2015), 24, 31–34.

[50] Ibid 25, 3–5.

[51] RAD Board transcript (4 December 2015), 376, 28–31.

[52] Transcript (27 September 2016) 2156, 18–20.

[53] Transcript of Proceedings, Tape-recorded Interview between Terry Bailey, Dion Villella, Tim Robinson and Mark Kavanagh, (Racing Victoria Ltd, T Bailey, D Villella and T Robinson, 21 July 2015), 3, 23–24.

[54] Transcript (14 October 2016), 2576, 6–9.

[55] C.T. Walton et al, ‘Charlesworth & Percy on Negligence’ (Sweet & Maxwell, Thomson Reuters, 13th ed, 2016); Dodd and Dodd v Wilson and McWilliam [1946] 2 All ER 691.

[56] The administration spreadsheet includes records of the vitamins, minerals, additives, medicines and therapeutic substances administered to a horse.

[57] Referring to Miller v Hilton [1937] HCA 23; (1937) 57 CLR 400; O’Sullivan v Truth and Sportsman Ltd [1957] HCA 8; (1957) 96 CLR 220.

[58] Referring to Day v Saunders (2015) 90 NSWLR 764, 780 [70]-[71], 793 [127]; He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523.

[59] Referring to Day v Saunders (2015) 90 NSWLR 764, 783 [84].

[60] Referring to Luong v DPP (Cth) [2013] VSCA 296 [69]–[70]; Western Australia v The Queen [2007] WASCA 42; (2007) 33 WAR 483 [67].

[61] Referring to Le v DPP (Vic) [2007] VSCA 72; (2007) 171 A Crim R 196 [23].

[62] [2010] VCAT 1106.

[63] [1985] HCA 43; (1985) 157 CLR 523.

[64] Ibid 529.

[65] [1937] HCA 23; (1937) 57 CLR 400.

[66] [1957] HCA 8; (1957) 96 CLR 220.

[67] [1967] SASR 251.

[68] (1995) 12 WAR 337.

[69] (1998) 194 CLR 355.

[70] Ibid 384 [78] (citations omitted).

[71] [2009] HCA 41; (2009) 239 CLR 27.

[72] Ibid 46–47 [47] (citations omitted), see also 31 [4].

[73] [2012] HCA 59; (2012) 246 CLR 469.

[74] Ibid [14] (citations omitted); see also SM v The Queen [2013] VSCA 342 [50]–[51].

[75] [2015] VSCA 269.

[76] Ibid [56].

[77] Momcilovic v The Queen (2011) 245 CLR 1, 46 [43]; R v Secretary of State for the Home Department; Ex parte Simms [1999] UKHL 33; [2000] 2 AC 115, 131; Al-Kateb v Godwin [2004] [2004] HCA 37; (2004) 219 CLR 562, 577 [19].

[78] Riley v Racing Victoria Ltd [2015] VSC 527 [37]–[38]; rvd on a different issue Racing Victoria Limited v Riley [2016] VSCA 230.

[79] Rich v Australian Securities and Investments Commission [2004] HCA 42; (2004) 220 CLR 129, 142 [23]–[24], Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74; (1993) 178 CLR 477, 497–500; Trade Practices Commission v Abbco Iceworks Pty Limited [1994] FCA 1279; (1994) 52 FCR 96, 129.

[80] Rich v ASIC [2004] HCA 42; (2004) 220 CLR 129.

[81] re APCH (No 2) [2012] VSC 576.

[82] Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397.

[83] Towie v Medical Practitioners Board of Victoria [2008] VSCA 157; (2008) 29 VAR 252.

[84] MH 6 v Mental Health Review Board [2009] VSCA 184; (2009) 25 VR 382.

[85] Legal Services Commissioner v Spaulding [2015] VCAT 292.

[86] [1945] NSWStRp 2; (1945) 45 SR (NSW) 182.

[87] Ibid 186.

[88] [1998] HCA 43; (1998) 194 CLR 202.

[89] Ibid 223 [63]. This principle was considered by Hargrave J in AB v Attorney General for the State of Victoria [2005] VSC 180 [101], see also See also D C Pearce and R S Geddes, Statutory Interpretation in Australia (Lexis Nexis Butterworths, 8th edn, 2014) 369–70 [9.10].

[90] [1935] HCA 62; (1935) 53 CLR 563.

[91] Ibid 567–568. See also Riley v Racing Victoria Ltd [2015] VSC 527 [39].

[92] Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569, 576.

[93] Ibid.

[94] RVL Stewards v Danny O’Brien, Mark Kavanagh and Dr Tom Brennan, Racing Appeals and Disciplinary Board (23 December 2015) 16.434-447.

[95] Ibid 17.451–17.463.

[96] [2010] VCAT 1106.

[97] [2009] VRAT 2 (24 March 2009).

[98] Corstens v Racing Victoria Limited [2010] VCAT 1106 [11]–[13] (emphasis added) .

[99] Susan Butler (ed), Macquarie Dictionary (Macquarie Dictionary Publishers Pty Ltd, 6th ed, 2013).

[100] See for example Alphacell Ltd v Woodward [1972] UKHL 4; [1972] AC 824; Simpson v Gatacre [1992] NSWLEC 9; Window v Phosphate Cooperative Co of Australia [1983] VicRp 88; [1983] 2 VR 287; Allen v United Carpet Mills Pty Ltd [1989] VicRp 27; [1989] VR 323.

[101] [1937] HCA 23; (1937) 57 CLR 400.

[102] (1937) 57 CLR 401, 413.

[103] Ibid 415.

[104] [1957] HCA 8; (1957) 96 CLR 220.

[105] [1957] HCA 8; (1957) 96 CLR 220, 230–231. See also Samuels v Centofanti [1967] SASR 251, 266.

[106] Miller v Hilton [1937] HCA 23; (1931) 57 CLR 400, 413.

[107] Ibid.

[108] Ibid 415.

[109] Ibid.

[110] Le v DPP [2007] VSCA 72; (2007) 171 A Crim R 196, 202 [23].

[111] A half-life refers to the length of time it takes for the concentration of a substance in serum to reduce by one half.

[112] Taken to be a solution of vitamin B12 as the main ingredient in an enriched form, with its concentration much higher than that of a normal solution of vitamin B12.

[113] Expert report of Dr Terence S.M. Wan dated 11 September 2016, 2-4.

[114] Rules of Racing, AR 1.

[115] As at 27 April 2016 including amendments on 1 October 2012, 11 June 2014 and 11 September 2014.

[116] AS ISO/IEC 17025-2005, General requirements for the competence of testing and calibration laboratories (2nd edition 2005) incorporating Amendment No 1 (December 2006).

[117] Ibid [1.2].

[118] Ibid [1.6].

[119] Ibid (iii)-(iv).

[120] Dr Vine prepared two reports, both dated 22 July 2016, one regarding the O’Brien horses and the other regarding Magicool

[121] See D C Pearce and R S Geddes, Statutory Interpretation in Australia (Lexis Nexis Butterworths, 8th edn, 2014) 309 [6.60] referring to Sherrit Gordon Mines Ltd v Federal Commissioner of Taxation [1977] VicRp 42; [1977] VR 342, 353; Douglas v Tickner [1994] FCA 1066; (1994) 49 FCR 507, 519; Gardner v R [2003] NSWCCA 199 [5]; Owen v Menzies [2012] QCA 170 [106]; Retirement Care Australia (Hollywood) Pty Ltd v Commissioner for Consumer Protection [2013] WASC 219 [79]; Transport Accident Commission v Hogan [2013] VSCA 335 [47].

[122] An aliquot is a portion of a larger sample for analysis.

[123] [1913] HCA 50; (1913) 17 CLR 90.

[124] Ibid 109.

[125]  [2010] VCAT 1144. 

[126] Ibid [72].

[127] Racing Act 1958 (Vic), s 5F. See Victoria, Parliamentary Debates, Legislative Assembly, 30 October 2013, 3675–6 (Robert Clark, Attorney-General).

[128] See Riley v Racing Victoria Limited [2015] VSC 527 [32], [36]–[37]; rvd on a different issue Racing Victoria Limited v Riley [2016] VSCA 230.; Kavanagh and O’Brien v Racing Victoria Ltd [2015] VCAT 1765 [17]–[20].

[129] (2015) 256 CLR 104.

[130] Ibid 116 [46]–[47] (citations omitted). See also Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640, 656–7 [35]; Eureka Operations Pty Ltd v Viva Energy Australia Ltd [2016] VSCA 95 [43]–[48].

[131] It applies also to AR 7(a), (v) and AR 178H.

[132] Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537; Gange v Sullivan [1966] HCA 55; (1966) 116 CLR 418; Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418; New Zealand Shipping Co Ltd v Societe des Ateliers et Chantiers de France [1919] AC 1.

[133] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 384 [78]; Alcan (NT) Aluminium Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27, 49 [57].

[134] (2011) 245 CLR 1.

[135] Ibid 46 [43].

[136] [1949] HCA 30; (1949) 78 CLR 529.

[137] Ibid 550.

[138] [1932] HCA 9; (1932) 47 CLR 1.

[139] Ibid 7.

[140] (1995) 35 NSWLR 596.

[141] Ibid 599.

[142] [2013] VSCA 217 [46]-[47].

[143] [1995] HCA 36; (1995) 184 CLR 301.

[144] Ibid 320.

[145] [2005] VSCA 133.

[146] Ibid [31].

[147] (1996) 67 FCR 402.

[148] Ibid 411.

[149] [2000] FCA 1902; (2000) 105 FCR 476; rvd on a different issue Duvoro Pty Ltd v Wilkins [2003] HCA 51; (2003) 215 CLR 317 on other grounds.

[150] Ibid 517 [152].

[151] See Tea Trade Properties Ltd v CIN Properties Ltd [1990] 1 EGLR 155, 158; approved in Central Australian Aboriginal Congress Inc v CGU Insurance Ltd [2009] NTCA 1 [47]; AFC Holdings Pty Ltd v Shiprock Holdings Pty Ltd (2010) 15 BPR 28, 199 [13].

[152] [2001] WASCA 217.

[153] Ibid [37].

[154] [2001] WASCA 217.

[155] Ibid.

[156] Ibid [36].

[157] Queensland Racing Disciplinary Board (30 August 2016).

[158] Ibid 5 (underlining in original).

[159] Queensland Racing Disciplinary Board (31 August 2016).

[160] Ibid 5.

[161] RVL Stewards v Danny O’Brien, Mark Kavanagh and Dr Tom Brennan, Racing Appeals and Disciplinary Board (23 December 2015).

[162] Von Hartel v Macedon Ranges Shire Council [2014] VSC 215 [50]; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 [99], [142]–[143].

[163] s 83OH.

[164] See Kozanoglu v The Pharmacy Board of Australia [2012] VSCA 295 [65], [101]–[105] citing Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.

[165] Attorney General for the State of Victoria v Geelong City Council [1989] VicRp 58; (1988) 68 LGRA 5, 14 VR 641; Koon Wing Lau v Calwell [1949] HCA 65; (1949) 80 CLR 533, 573-4; Deputy Commissioner of Taxation v Ganke [1975] 1 NSWLR 252, 258.

[166] Ibid. See further D C Pearce and R S Geddes, Statutory Interpretation in Australia (Lexis Nexis Butterworths, 8th ed, 2014) 300 [6.51].

[167] See Con-Stan Industries of Australia Pty Ltd v Norwich Wintherthur Insurance (Australia) Ltd [1986] HCA 14; (1986) 160 CLR 226, 244.

[168] Forrester v AIMS Corporation [2004] VSC 506 [17]–[28]; Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99; Lay v Alliswell Pty Ltd [2001] VSC 385 [13]–[14]; Owners Corporation No 1 PS537642N v Hickory Group Pty Ltd [2015] VCAT 1683 [8]–[12].

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