A Racing NSW Appeals Tribunal decision which found stewards have no jurisdiction to penalise trainers under Australian Rules of Racing rule 175 (‘ ARR175 ’) has sent shock waves through the racing industry, with anyone penalised by stewards under this broad section of racing law now investigating their rights to seek redress.
Attwood Marshall Lawyers Thoroughbred Racing Law department has received several inquiries from racing industry members considering a possible class action type claim following a recent judgement which found stewards had been wrongly penalising people under an Australian rule of racing for up to a decade.
Stewards Have No Right To Penalise Trainers Under Australian Rules of Racing, rule 175
A judgement that stewards have no right to penalise trainers under ARR175 was handed down by Racing Appeals Tribunal head David Armati following submissions from lawyers acting for licenced trainer Carl Poidevin, who challenged stewards on their ability to charge him under ARR175, acting on the authority of Racing NSW.
ARR175 prescribes 30 offences under the rules of racing and has been included in some of the state’s biggest inquiries in recent years, with stewards charging persons under ARR175 and imposing penalties, including suspensions and disqualifications.
The alleged breach was that, in respect to ARR175, Poidevin gave false evidence during an investigation by Racing NSW, and at a Stewards Inquiry, that his racehorse, Master Agar, was injected or was administered medication in contravention of the Rules of Racing.
The tribunal considered whether the Principal Racing Authority (or the Stewards exercising powers delegated to them) had the right to penalise any person who gives at any interview, investigation, inquiry, hearing and/or appeal any evidence which is false or misleading in any particular.
Stewards argued the Racing NSW board had delegated powers to chief executive Peter V’landys, who in turn has sub-delegated to the chief steward the power to penalise people under ARR175.
Their plea was dismissed by Armati, who said V’landys needed to delegate the powers to a ‘committee’ rather than a single person, such as a chief steward.
As a result, some of the highest-profile convictions in thoroughbred racing have been thrust back into the spotlight, the Sydney Morning Herald reports.
The longest bans handed down in NSW history were charges under ARR175, to trainers Darren Smith and Sam Kavanagh over the use of cobalt.
V’landys has attempted to make light of the decision by stating:”It’s a minor procedural deficiency which is rectified within 10 seconds,” he told Fairfax Media. “We’ll correct it. We respect the judge’s decision and we’ll apply that change quickly.”
Lawyers for ARR175 thoroughbred racing legal matters in Australia
Attwood Marshall Lawyers have been contacted by several clients charged under ARR175 who are considering their legal options in NSW.
Legal Practice Director Jeff Garrett said the decision of the Racing Appeals Tribunal in the matter of Poidevin confirms stewards are not empowered to penalise under ARR175 and that licenced trainers or persons previously convicted or charged should consider their legal options.
“We will need to carefully consider the judgement and see what Racing NSW does next. They may appeal from this decision or will seek to pass amendments to the Rules of Racing. I think it may be overly optimistic to state the issue can be ‘fixed in 10 seconds’. If the previous prosecutions have been improperly made, it is conceivable that they could be set aside,” he said.
“Although it appears this is a procedural technicality, it is extremely important that the Rules are followed and I’m surprised no-one has picked up on this prior to now. I encourage anyone affected to seek advice as soon as possible.”
Attwood Marshall Lawyers Experienced Lawyers in Defending Cobalt and ARR175 Allegations in Australia
Attwood Marshall Lawyers are experienced in this complex area of law in all states of Australia.
Legal Practice Director Jeff Garrett is an avid owner and breeder of racehorses and has a wealth of experience in these matters. Special Counsel Richard Smith, a former Barrister at the Sydney Bar, has a lifetime of being involved in the racing industry and appearing in the various forums across the codes.
Attwood Marshall Lawyers were involved in the first case of cobalt being detected above the prescribed limit of 100mgs in a greyhound in Queensland when trainer, George Kadniak was disqualified by the Stewards for eighteen months when his greyhound Your Deal tested positive to cobalt on 12 October 2015.
Kadniak appealed at first only in relation to penalty and then contacted Attwood Marshall Lawyers to represent him at the hearing. Upon Attwood Marshall Lawyers’ consideration of the matter, it became apparent that Kadniak should have also appealed the conviction as well. Notice was given accordingly to Racing Queensland. The Appeal Panel accepted the amendment to the appeal.
Jim Murdoch QC was retained to appear on behalf of our client instructed by Attwood Marshall Special Counsel, Richard Smith, the hearing taking place on 21 April 2016 at Racing Science Centre, Albion Park.
The appeal hinged on the fact that the Racing Science Centre performed an analysis of both the primary and referee sample which had been taken before an amendment to Local Rule 18 relating to greyhounds which came into effect on 27 November 2015.
That rule in effect now permits both samples to be tested by the Centre where the Controlling Body considers there is sufficient reason.
The Appeal Panel were of the opinion that the amendment to Local Rule 18 was not retrospective.
The request to test the primary sample and a further request to test the referee sample were both made prior to the amendment date , 27 November 2015.
There was also a finding that if both certificates relating to the testing of the sample had been requested after 27 November 2015 they would have been properly obtained. This did not occur and while the first certificate was admissible as to the level of cobalt present the second certificate was not.
To support a conviction it has been historical that the authorities demand there must be two positive results from the testing of the sample. In this case this did not occur. Attwood Marshall Lawyers won the appeal for Kadniak.
If any trainers or licenced persons, irrespective of the type of racing, have been charged in relation to cobalt or under ARR175 for any other matters, please do not hesitate to contact our office for assistance and advice. Please telephone Amanda Heather on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or freecall 1800 621 071.
