Office of RacingGPO Box 4509Melbourne,Victoria 3001 AustraliaTelephone: +61 3 9668 2403DX 210074

7 October 2020

DECISION – CHARGE 1RACING VICTORIA

and

MR RICHARD LAMING

Dates of hearings: 17 August 2020 and 18 August 2020

Panel: Judge John Bowman (Chairperson), Judge Graeme Hicks (Deputy Chairperson) and Mr Des Gleeson.

Appearances: Mr Justin Hooper instructed by Ms Charlotte Landy appeared on behalf of the Stewards.Mr Damien Sheales instructed by Ms Kate Brideoake appeared on behalf of Mr Laming.

Charges & Particulars: Charge One: Australian Rule (AR) 245

The Stewards charge you with breaching AR 245 which reads as follows:

AR 245 Administration of prohibited substance in sample taken from horse before/after running in race

(1) A person must not:

(a) administer; or

(b) cause to be administered,

a prohibited substance on Prohibited List A and/or Prohibited List B to a horse which is detected in a sample taken from the horse prior to or following the running of a race.

Particulars of Charge

1. You are, and were at all relevant times, a trainer licensed by Racing Victoria.

2. At all relevant times, you were the trainer of Iam Ekstraordinary.

3. On 23 May 2018, Iam Ekstraordinary ran in the City of Ballarat Maiden Plate over 1200 metres at the Ballarat racecourse (the race).

4. Prior to the race you administered, or caused to be administered, to Iam Ekstraordinary a prohibited substance, being cobalt at a mass concentration in excess of 100 micrograms per litre in urine, which was detected in a pre-race urine sample taken from Iam Ekstraordinary prior to the running of the race.

5. Cobalt exceeding a mass concentration of 100 micrograms per litre in urine is a prohibited substance pursuant to Part 2 of Schedule 1 of the Australian Rules of Racing.

6. At the time of the relevant conduct described, it was an offence under AR 175(h)(ii) (as then in force) to engage in the conduct described in particular 4.

7. By reason of AR 8(2)(e) of the Rules of Racing, any offence committed under or in breach of the previous Australian Rules is deemed to be an offence committed under or in breach of these Australian Rules.

Charge Two: AR 240 [Alternative to Charge One]

The Stewards charge you with breaching AR 240 (2) which reads as follows:

AR 240 Prohibited substance in sample taken from horse at race meeting

(2) Subject to subrule (3), if a horse is brought to a racecourse for the purpose of participating in a race and a prohibited substance on Prohibited List A and/or Prohibited List B is detected in a sample taken from the horse prior to or following its running in any race, the trainer and any other person who was in charge of the horse at any relevant time breaches these Australian Rules.

Particulars of Charge

1. You are, and were at all relevant times, a trainer licensed by Racing Victoria.

2. At all relevant times, you were the trainer of Iam Ekstraordinary.

3. On 23 May 2018, Iam Ekstraordinary was brought to the Ballarat racecourse and ran in the City of Ballarat Maiden Plate over 1200 metres (the race).

4. A prohibited substance, being cobalt at a mass concentration in excess of 100 micrograms per litre in urine, was detected in a pre-race urine sample taken from Iam Ekstraordinary prior to the running of the race.

5. Cobalt exceeding a mass concentration of 100 micrograms per litre in urine is a prohibited substance pursuant to Part 2 of Schedule 1 of the Australian Rules of Racing.

6. At the time of the relevant conduct described, it was an offence under AR 178 (as then in force) to engage in the conduct described in particulars 3 and 4.

7. By reason of AR 8(2)(e) of the Rules of Racing, any offence committed under or in breach of the previous Australian Rules is deemed to be an offence committed under or in breach of these Australian Rules.

Charge Three: AR 104(1)

The Stewards charge you with breaching AR 104(1) which reads as follows:

AR 104: Trainers must keep treatment records

(1) A trainer must record any medication or treatment administered to any horse in the trainer’s care by midnight on the day on which the administration was given.

(2) For the purpose of subrule (1), each record of administration must include the following information:

(a) the name of the horse;

(b) the date and time of administration of the treatment or medication;

(c) the name of the treatment or medication administered (brand name or active constituent);

(d) the route of administration including by injection, stomach tube, paste, topical application or inhalation;

(e) the amount of medication given (if applicable);

(f) the duration of treatment (if applicable);

(g) the name and signature of the person/s administering and/or authorising the administration of the treatment or medication.

(3) For the purposes of this rule “treatment” includes:

(a) shock wave therapy;

(b) acupuncture (including laser treatment);

(c) chiropractic treatment;

(d) the use of any electrical stimulation device (including transcutaneous electrical nerve stimulation (TENS));

(e) magnetic field therapy;

(f) ultrasound;

(g) any form of oxygen therapy, including hyperbaric oxygen therapy;

(h) the taking of a blood sample.

(4) For the purposes of this rule “medication” includes:

(a) all Controlled Drugs (Schedule 8) administered by a veterinarian;

(b) all Prescription Animal Remedies (Schedule 4), including those listed in Schedule 1, Part 2, Division 2 to these Australian Rules;

(c) all Prescription Only Medicines (Schedule 4), prescribed and/or dispensed by a veterinarian for off-label use;

(d) all injectable veterinary medicines (intravenous, intramuscular, subcutaneous, intra-articular) not already referred to above;

(e) all Pharmacist Only (Schedule 3) and Pharmacy Only (Schedule 2) medicines;

(f) all veterinary and other medicines containing other scheduled and unscheduled prohibited substances;

(g) all alkalinising agents;

(h) all herbal preparations.

(5) All records required to be kept in accordance with this rule must be retained by the trainer for at least 2 years.

(6) When requested, a trainer must make available to the Stewards the record of any administration of a treatment and/or medication required under subrule (1).

Particulars of Charge

1. You are, and were at all relevant times, a trainer licensed by Racing Victoria.

2. On 20 June 2018, Racing Victoria Stewards (Stewards) attended your stables at Clyde to complete an inspection (Inspection).

3. During the Inspection, Mr Marnu Potgieter, a stable hand employed by you, provided a treatment diary to the Stewards (Treatment Diary).

4. On the evening of 20 June 2018, after completion of the Inspection that day, Mr Potgieter provided the Stewards with a revised version of the Treatment Diary via email (Revised Treatment Diary).

5. The Revised Treatment Diary included treatments that had been administered to Iam Ekstraordinary in May 2018 that had not been recorded in the Treatment Diary when the Stewards undertook their Inspection.

6. Your conduct, as described above, was in breach of AR 104(1).

7. At the time of the relevant conduct described, it was an offence under AR 178F(5) (as then in force) to engage in the conduct described in particular 5.

8. By reason of AR 8(2)(e) of the Rules of Racing, any offence committed under or in breach of the previous Australian Rules is deemed to be an offence committed under or in breach of these Australian Rules.

Pleas: Not Guilty – charge 1, Guilty – charges 2 and 3.

DECISION – CHARGE 1

1. General background

Mr Richard Laming, a licensed trainer, has been charged with three offences. The charges arise out of the running of Iam Ekstraordinary at Ballarat on 23 May 2018. He is pleading “Not Guilty” to a breach of AR 245. He is pleading “Guilty” to breaches of AR 240 and AR 104 (1).

In this judgement, we will be dealing with Charge 1, the contested charge pursuant to AR 245. The penalties in relation to the other charges will be dealt with at a hearing on a date to be fixed.

Pursuant to Section 50X of the Racing Act 1958, questions of law have been determined by the Chairperson. However, invaluable assistance has been provided by Deputy Chairperson, His Honour Judge Hicks, and by Member, Mr Des Gleeson. Whilst the word “we” is used throughout this Decision, the ultimate responsibility for answering questions of law or mixed fact and law rests with the Chairperson.

2. The dispute

The dispute in relation to the contested charge could be summarised as follows.

The charge pursuant to AR 245 relates to the detection of a prohibited substance – in this case, cobalt - which was found in a pre-race urine sample. A person must not administer, or cause to be administered, cobalt to a horse which is detected in a sample taken from the horse prior to or following the running of a race.

In this particular case, there is no argument concerning the sampling or testing procedures. As stated, cobalt is a prohibited substance. Whether or not it should be is not for this Tribunal to determine.

The key arguments concern the meaning of “administer or cause to administer” as used in AR 245, and particularly, given the evidence in this case, of “cause to administer”.

Mr Hooper, who appeared on behalf of the Stewards, submitted that the word “cause” in AR 245 incorporates a sliding scale of knowledge that includes negligence or carelessness.

Mr Sheales who appeared on behalf of Mr Laming, submitted that it did not.

As we note later in this judgement, there is a specific rule relating to negligence - see Rule AR 16 (b) (111). Mr Laming was not charged with a breach of this rule.

What do the words “cause to administer“ mean? For instance, do those words embrace a failure to supervise staff properly or at all, as asserted by the Stewards? Do they include a failure to keep any relevant records covering the period of the offence? In broad terms, can the situation of a trainer effectively doing nothing, leaving to the staff the administering of substances and not even realising that no records were being kept for the relevant period, constitute administering or causing to be administered? To what extent can a trainer pass on responsibility to staff for the purposes of Rule 245?

Such issues seem to us to be at the heart of this aspect of the contest.

3. The findings of fact

We make the following findings of fact.

At the relevant time, Mr Laming conducted two training establishments. These matters arose at Clyde. Mr Marnu Potgieter was his licensed assistant trainer, or foreman. Ms Amy Mercer was a licensed stable hand employed by Mr Laming. She had been so employed for four or five years at the relevant time, and indeed was so employed before the arrival of Mr Potgieter. Her duties included the administration of injections and the written recording of these.

Iam Ekstraordinary was to run at Ballarat on Wednesday, 23 May 2018. Approximately three months earlier, the stable had been involved with the Stewards in relation to the use of a nebuliser on a horse on race day. Thus, Mr Laming, Mr Potgieter and Ms Mercer should have been on full alert as to the importance of ensuring that treatment was not given immediately before or on race day.

Approximately one week before the commencement of this hearing the Stewards reinterviewed Ms Mercer. As a result, the Stewards accepted that Ms Mercer had made an honest mistake in injecting the horse with cobalt on race day.

We say now that we are quite satisfied that, in the present case, cobalt was administered on Wednesday 23 May 2018 by means of a vitamin injection, albeit one given in error. Associated with that error was a virtually complete absence of records at that time and the lack of any adequate means of indicating which horse or horses were to race on a particular day. Nothing seems to have been learned from the nebuliser incident three months previously. Further, neither Mr Laming nor his foreman, Mr Potgieter, were present at the Clyde stables prior to Iam Ekstraordinary being removed from the stables, put in the float and taken to Ballarat races on the day in question. Neither attended at Ballarat. When interviewed by the Stewards almost four weeks later, Mr Laming did not even seem to realise that no relevant records had been kept for about six weeks.

Ms Mercer gave evidence that she could not rule out the possibility that she had given Iam Ekstraordinary a vitamin injection on the morning of 23 May 2018 at some time before the horse was placed in the float and taken to Ballarat. She had some computer problems which she said explained the lack of any records. Ultimately there was no challenge to the proposition that the positive reading probably emanated from a vitamin injection erroneously administered by Ms Mercer on the morning of 23 May 2018 and, as stated, we accept this.

We also find that on that morning neither Mr Laming nor his foreman was present; that the computer programme in relation to the administration of substances and the like was not working and had not for some time; that there was a totally inadequate system, if you could call it that, in relation to indicating which horses were about to race and when; and, given the contents of his interview of 20 June 2018 and his evidence, there was a high degree of ignorance on the part of Mr Laming as to the particulars of what was going on in his stables.

We also find that, early in her employment with Mr Laming and even before the arrival of Mr Potgeiter as foreman, Ms Mercer had been instructed by Mr Laming not to administer injections on race days. She remained aware of this. She was familiar with the injection process and, over the years, had administered thousands of injections.

4. The legal arguments

We shall not set out in detail the very helpful legal submissions that were made. Suffice to say that questions of law or mixed fact and law ultimately played a significant role in the dispute and particularly as to the operation of AR 245. As stated earlier, the words “administer or cause to administer” are of central importance. We turn now to the submissions.

(i) The submissions on behalf of the Stewards

The argument advanced by Mr Hooper on behalf of the Stewards could be summarised as follows.

Mr Laming ran “shambolic” stables. There had been a race day treatment or administration error only three months earlier. Effectively nothing of significance was done following it. Mr Laming was extremely careless and casual in relation to stable procedures.

Mr Laming was the cause of the administration, even though he was not present on race day. He did foresee this exact situation. There had been the earlier incident three months previously, which had been a race day mistake. His evidence was that he contemplated that it could happen again. Accordingly, he had to be more vigilant and have a satisfactory system in place in relation to staff being aware of which horses would be racing.

However, there was no increased supervision or the like. There were no clear stable signs or procedures to distinguish race day runners from other horses in the stables. He did not supervise things properly. He had not even noticed that there were no treatment sheets for the month of May.

There was no actual supervision or oversight of Ms Mercer. It is clear from the transcript of the first interview with Mr Laming that his attitude was “If staff members made an error, that’s their fault.” He should not be able to divest himself of authority in this way. The proper construction of “cause” in AR 244 and 245 extends to negligence or carelessness.

In his opening and in his written submissions, Mr Sheales refers to Racing Victoria Ltd. V Kavanagh [2017] VSCA 334. That case involves a different state of knowledge. The more authority is widened, the more things can go wrong and the greater the need for care and supervision. Once something had gone wrong, Mr Laming was required to take greater care to prevent it from happening again. This did not happen. He did not ensure that treatments were being recorded in the diaries; that staff were trained in the new computer programme and did not need to print out worksheets at home, as was the situation with Ms. Mercer; and that there were clear signs on the fronts of horse boxes which indicated which horses were running that day.

Mr Laming contemplated the very mistake which was made. In Kavanagh, McLeish J said that a person can intend, foresee or contemplate certain actions so as to have caused them without fully appreciating the details of those actions. Reference is made to paragraphs [112] and [120] of the judgement. Reference is also made to paragraph [119] of the judgement. McLeish J referred to the heavy obligation on trainers. Protecting the integrity of racing imposes a very high onus on trainers in relation to the administration of substances to horses. That extends to adequate supervision.

Next, it could not have been intended by those who drafted the Rule that trainers who completely take their hands off the wheel are only mere presenters. A trainer in Mr Laming’s position, and particularly given the earlier mistake, must guard adequately against a lack of care on the part of stable employees in relation to treatment of horses. A trainer should not be able to simply blame employees. This would create a major blind spot in relation to larger training establishments and delegation. Further, to so find would be inconsistent with earlier decisions such as Moody, Dunn and Andrews.

Even without going further, for these reasons the Tribunal should find that Mr Laming caused the administration of the vitamin treatment on race day, particularly bearing in mind the earlier race day administration mistake and his lack of supervision thereafter.

In addition, the permission and latitude given to Mr Potgieter and Ms Mercer were extremely wide. Vitamin injections were given to horses in racing preparation, such as Iam

Ekstraordinary. They were given on a weekly basis, but on no set day. It depended upon on which days Ms Mercer was working. They were given at no set time. Despite the earlier mistake, Mr Laming continued to give Ms Mercer a very wide licence to administer vitamin injections whenever she so wanted.

Mr Laming knew that Mr Potgieter, his foreman, had delegated the vitamin injection duties to Ms Mercer. Mr Laming did not speak to her about them and had no direct contact with her about the injections. He failed to provide satisfactory supervision, even after the earlier mistake. Mr Potgeiter and Ms Mercer were given a very wide licence in relation to injections. Mr Laming told the Stewards that he did not even know when horses would receive their vitamin injections, and that included Iam Ekstraordinary at the relevant time. Further, when interviewed by Stewards on 20 June 2018, he stated that it was “exactly right” that the relevant treatment diary would be an accurate reflection of the administrations. He did not even realise that the vitamin injections for the entire month of May had not been recorded in that diary. Mr Potgieter told the Stewards that Mr Laming was not even on the list of people who received the treatment diary.

Mr Laming knew very little about the vitamin treatment regime, telling the Stewards that they would have to ask Mr Potgieter. When asked who was responsible for making the feeds and adding supplements, he again told the Stewards that they would have to ask Mr Potgieter. He did not know whether visits by vets and administrations by them were recorded.

Further, Mr Laming said that Mr Potgieter picked the days upon which horses were treated, when it was in fact Ms Mercer. In that regard, Mr Potgieter said that Ms Mercer did the injections “whenever she gets a chance”, pointing out that she “goes to uni and stuff”. He also said that “there’s no set day”.

In summary, there was no accountability or supervision in relation to the weekly vitamin regime and Mr Laming had relinquished all responsibility. For the month of May 2018 there were none recorded, and Mr Laming did not even know that this was the case.

Mr Laming knew or ought to have known that Ms Mercer often gave vitamin treatments on a Tuesday or Wednesday; that Iam Ekstraordinary was racing on a Wednesday; and that his foreman, Mr Potgieter, was often absent on a Wednesday. Instead, he relinquished all responsibility to the extent that no vitamin treatments were recorded for the whole month of May. He was not even on the list of people who received the treatment diary. Mr Laming should have made enquiries of Ms Mercer, particularly given the earlier mistake.

The race day administration to Iam Ekstraordinary was not merely an accidental consequence of Mr Laming’s conduct. His failure to supervise adequately his employees and

their processes caused this exact situation to occur. He had ultimate responsibility at all times and particularly in circumstances where his foreman was absent.

In order to regulate racing effectively, the Stewards must be able to hold someone accountable and that person is the trainer, with whom the buck stops. A trainer who delegates responsibility in this way cannot expect to be treated as a “mere presenter”. Along with the privilege of being a licensed trainer come heavy responsibilities and obligations as to how stables will operate. Reference is again made to the decisions in Andrews and Moody.

This case is not a scenario where a stable employee has embarked on a course of action outside a trainer’s reasonable contemplation or where a trainer has been deliberately misled by a veterinarian using a secretive treatment regime of which the trainer had no knowledge. Mr Laming was on notice that his practices could lead to an outcome such as this and where potentially prohibited substances were used routinely.

The shambolic stable practices facilitated the race day mistake. Given the slap dash practices, it was inevitable that something would go wrong and Mr Laming did nothing about it, instead of being hyper vigilant.

The Tribunal can be satisfied that Mr Laming is the person responsible and has caused the substance to be administered by the way in which he operated his stables. The breach of AR 245 (1) (b) has been established.

(ii) The submissions on behalf of Mr Laming

The argument advanced by Mr Sheales on behalf of Mr Laming could be summarised as follows.

There is no suggestion that Mr Laming in fact administered the substance in question. Therefore, attention is focused upon the words “cause to administer”, and the meaning of the word “cause”. This was discussed by McLeish JA and Cavanough AJA in Kavanagh. Therein it was said that the test of whether a person has caused a substance to be administered to a horse excludes accidental administration and mere causal connection. It would not necessarily exclude a situation where someone has been given free licence and it might then be necessary to decide how far such licence extended. Reference is made to paragraphs [118-9] and [125-6] of the judgements.

In the present case, there was accidental administration on a prohibited day and mere causal connection. No free licence had been given to Ms Mercer to administer injections as she pleased. She knew that she was not to so administer on race days.

When all the circumstances are taken into account, it has not been proven to the standard described in Briginshaw v Briginshaw (1938) 60 CLR 336 that Mr Laming caused a prohibited substance to be administered.

5. Ruling

The reasons for this Ruling may seem somewhat technical and certainly contain some legal terminology, but that is almost inevitable given the arguments advanced and the concepts to be considered.

We say at the outset that we consider the stable practices of Mr Laming to be careless, inadequate and marked by indifference as to what was happening. The term employed by Mr Hooper – “shambolic” – is appropriate.

However, the issue is whether that is sufficient to satisfy the requirements of AR 245, particularly in light of the observations of McLeish JA and Cavanough AJA in Kavanagh.

Firstly, we would refer to the following statement of McLeish JA at paragraph [119]:

“The applicant correctly pointed out that the authorities demand caution in applying too strictly principles of criminal responsibility in the context of civil disciplinary measures”.

In the present case, that statement should be borne in mind and assistance can be gained from some aspects of the civil law.

That applies to the issue of authority. In Kavanagh, also at paragraph [119], McLeish JA referred to this as follows:

“…the applicability, in the context of the Rules of Racing, of a test of authority or direction to determine whether a person has caused a substance to be administered to a horse”.

That Ms Mercer knew that there was to be no administration to a horse on a day that it was racing seems beyond dispute. We accept that she had been instructed by Mr Laming concerning this early in her employment, if not virtually at the outset. In her initial interview on 20 June 2018 she stated that there was “no way” she would have treated a horse on race day and “…I just make sure that I do the clear day…If it’s too close to race day, I just don’t do it.”

Whilst Ms Mercer’s perception of her authority might be useful, it does not necessarily answer the important question of the authority in fact invested in her. In his evidence before the Tribunal, Mr Laming stated that he had no direct contact with Ms Mercer. He did not speak to her about treatments. He did not check back with Mr Potgieter. He did not check the treatment diary. Mr Laming gave Mr Potgieter open licence. He was aware that Mr

Potgieter delegated work to Ms Mercer. He did not engage in active supervision of them and had confidence in their abilities. Mr Laming knew that Mr Potgieter would be absent on the Wednesday in question and that he left instructions when he was not at work.

In this regard, Ms Mercer told the Tribunal that Mr Laming originally gave her instructions and Mr Potgieter instructed her to perform them. She gave the injections for Mr Laming and it was something that she could do “with her eyes closed”. She gave approximately 5,000 injections per annum and had been doing that for four or five years at the relevant time. She dealt with Mr Potgieter in relation to treatments, but not with Mr Laming.

Mr Potgieter did not give evidence, but the transcript of his interviews with Stewards was placed before us. In his first interview of 20 June 2018, he stated that he did not normally work on a Wednesday and was not at work on Wednesday 23 May 2018. He and Ms Mercer were “mainly” responsible for the treatments to the horses and “mainly” under the guidance of Mr Laming. It was only himself, Ms Mercer or Mr Laming who would treat the horses. Injections would only be given by “the main staff” – the three people just mentioned. Mr Laming would not know whether vitamin injections had been administered or not. He would not know on which day. He is not on the list of people who have access to the record of vitamin administrations – “If he wants to know something, he’ll just ask us”. Ms Mercer is supposed to record administrations.

By the time of Mr Potgieter’s second interview one day later on 21 June 2018, Ms Mercer had apparently reconstructed from memory the relevant missing diary entries in relation to weekly injections. These included injections to Iam Ekstraordinary on Monday 21 May 2018. For the month of May there still seemed to be two missing weeks. The injections are given on random days “whenever we’ve got some spare time”. It was pointed out to Mr Potgieter that, if the relevant injections had been given on the Monday, two days before the race day testing, the test would not have shown the positive return which it did.

We have gone into the interviews with Mr Potgieter at some length because they give some idea of the haphazard “random” regime of injection giving that existed and the apparent absence of any direct control or intervention provided by Mr Laming. This is consistent with his absence of anything like adequate knowledge of what was occurring in his stables, particularly as demonstrated in his original interview, not that his level of knowledge seemed to improve greatly thereafter.

The question which we have to decide is whether this shoddy and careless way of running stables constitutes a breach of AR 245. Has the requirement of the words “cause to be administered” been satisfied?

We are satisfied that Mr Laming invested authority in Ms Mercer to administer injections and that he instructed her not to administer such injections on race day. This occurred at the

time of, or shortly after, the commencement of her employment. She understood it. Thereafter, he effectively left her to her own devices, and she administered thousands of injections over the years. This occurred before and after the arrival of Mr Potgeiter.

In the context of AR 245, what then is meant by the words “administer or cause to be administered” and do they embrace the conduct of Mr Laming or the lack thereof? Put another way, having vested in Ms Mercer the authority to perform injections, does failing or omitting to supervise her thereafter constitute conduct which breaches the Rule?

We then make the following points, which are not listed in order of importance or significance.

Firstly, AR 16 (b)(iii) gives the Stewards the power to discipline and/or penalise “any licensed person whose conduct or negligence in the performance of his or her duties has led, or could have led, to a breach of the Rules”. These are comparatively sweeping powers in respect of negligence. They have not been exercised in the present case in that no such charge has been laid.

Secondly, there is at least an argument that AR 16 (b) (iii) is a broad Rule meant to encompass all situations of negligence or carelessness unless such are otherwise spelt out or specifically mentioned – for example, careless riding pursuant to AR 131 (a). Negligence or carelessness is not referred to in AR 245. Therefore, according to such argument, that Rule does not extend to situations of negligence. It is designed to apply to situations of administering, in the sense of the licensed person doing the administrating himself or herself, or causing the administration, in the sense of instructing some other person to perform the administration. There seems to us to be some logic in that argument.

Thirdly, the observations of McLeish JA in Kavanagh are to be borne in mind. Specifically, we would refer to the following at paragraph [118]:-

“In other words… a person (in the present case, Mr Laming) causes another person (Ms Mercer) to administer a prohibited substance to a horse if the person either authorises that person to administer the substance to the horse or exerts a capacity of control or influence to direct the person to do so, in either case intending, contemplating or desiring that the authority or directing will be acted upon.”

In the present case, there is no suggestion that Mr Laming authorised Ms Mercer to administer the injection on race day. There is no suggestion that he exerted a capacity of control or influence in order to direct Ms Mercer so to do. There is no suggestion that he intended, contemplated or desired that any such authority or direction, if it existed, would be acted upon. The evidence is to the contrary. However dated it may have been, any general direction given to Ms Mercer was not to administer injections on race day. As for

the particular injection on 23 May 2018 (race day), there is no suggestion that Mr Laming even knew of the injection being administered, much less authorising or exerting a capacity of control or influence so as to direct Ms Mercer so to do. Explicitly and by inference, Ms Mercer had been vested with authority to administer injections, but specifically not on race days.

Fourthly, and this is an adjunct to the third point above, in the same paragraph McLeish JA also stated as follows:-

“…the applicability…of a test of authority or direction to determine whether a person has caused a substance to be administered to a horse. That test excludes accidental administration and mere causal connection…”.

McLeish JA went on to refer to the heavy obligation that is imposed on those who entrust horses to the care of third parties to be clear in what they authorise to be administered to those horses. That heavy obligation logically could be said to apply not only to what substances are administered, but to when such substances are administered.

What occurred in the present case was a clear instruction as to non-administration on race days. There is no suggestion that Ms Mercer did not understand or appreciate this. The contrary is quite clear. What seems to have occurred is a wilful administration, but one performed accidentally on a race day. That seems to us to fall within the exclusion referred to by McLeish JA.

We would point out that, given that Cavanough AJA concurred with McLeish JA, the above extracts represent part of the majority decision in Kavanagh.

Fifthly, if AR 245 had been intended to apply to a situation such as the present which involves an administration by reason of a failure to do something (in this case, a failure adequately to supervise staff or to keep a watchful eye on what was occurring), it would have been a comparatively simple piece of drafting to have the Rule state this. Whilst it is not the job of the Tribunal to assist with the drafting of the Rules of Racing, if Rule 245 contained words such as “administer, cause to be administered or if administration takes place due to negligence, neglect or lack of supervision on the part of the trainer”, the outcome may have been different. However, to state the obvious, there is no such wording.

Finally, whilst, as stated by McLeish JA in Kavanagh, cases such as this are heard in the context of civil disciplinary measures, a reference to concepts known in civil negligence cases generally may be of some assistance. How Mr Laming behaved in this case bears some resemblance to what is known as nonfeasance - the omission or failure by a person to do something which that person would be otherwise liable to do. For example, in general terms a highway authority is not liable for the consequences of failing to repair a highway in the

absence of a statutory obligation so to do. This is to be contrasted with malfeasance (the doing of a wrongful act) and misfeasance (the doing of a legal or required act, but doing it badly, improperly or negligently). In simple terms, situations where there are penalties (damages) for harm caused as a result of doing nothing are usually spelt out in Acts, Regulations or Rules. This point is really an adjunct to and perhaps analogous with the fifth point set out above.

6. Conclusion

We are not comfortably satisfied that Charge one pursuant to AR 245 has been made out. We appreciate the very considerable efforts and very helpful submissions that have been made by both parties. However, our conclusion is that Charge One pursuant to AR 245 is dismissed. We shall hear Charges Two and Three, in respect of which there are guilty pleas, as soon as the parties are ready to proceed with them.

Mark HowardRegistrar, Victorian Racing Tribunal