Flaherty v National Greyhound Racing Club Ltd

A sporting disciplinary body exercising contractual powers must conduct its proceedings fairly. The civil burden of proof applies unless the governing rules require otherwise, but allegations involving deliberate wrongdoing require reasonably cogent evidence and a proper opportunity to answer the case. Apparent bias exists where a fair-minded and informed observer would conclude that there was a real possibility of bias. Waiver requires full knowledge of the relevant facts and a clear and unequivocal decision to proceed. A person connected with the accusing body should not ordinarily remain while a tribunal deliberates; the appearance of such interference may invalidate the decision even if no actual influence is proved. Courts allow specialist sporting bodies latitude, but will intervene for illegality or serious procedural unfairness.

The claimant, a greyhound owner and trainer, was found by the defendant’s Stewards to have breached the defendant’s rules after a urine sample from his greyhound contained Hexamine. He challenged the finding and fine on grounds including contractual procedural unfairness, actual or apparent bias, the participation of the defendant’s chief executive in the Stewards’ deliberations, failure to provide a split sample, and failure to put the Stewards’ factual theory to him.

The central issues were whether the disciplinary process was fair, whether the tribunal was improperly constituted or assisted, and whether the court should set aside the decision.

1. Disposition. The challenge succeeded. The Stewards’ finding and penalty were set aside because Mr Critall’s participation gave rise to apparent bias and because the defendant’s chief executive remained present during the Stewards’ deliberations.
2. Rule 174(a)(i), read with the Stewards’ directions, placed the burden on the defendant to prove both that the claimant had administered a substance capable of affecting performance and that it had been administered for an improper purpose. The applicable standard was civil, but reasonably cogent evidence was required because the finding involved deliberate deception. The Stewards were nevertheless entitled, on the evidence, to conclude that the rule had been breached.
3. Applying Re Medicaments and Porter v Magill, the question was whether a fair-minded and informed observer, having considered all the circumstances, would conclude that there was a real possibility of bias. Mr Critall’s 31-year professional connection with the stadium, his relationship with relevant witnesses, his firm views about its security, and his dominant role in questioning the claimant satisfied that test. Actual bias was not established.
4. Waiver failed. The claimant lacked full knowledge of the extent and significance of Mr Critall’s connection with the stadium and was not shown to know of his right to object. The Stewards should have disclosed the position and asked whether he consented to Mr Critall continuing.
5. The rule against a non-member remaining during deliberations protects the right to know and answer the case, and is distinct from the law of bias. Under the Cooper line of authority, the sufficiently stark appearance of injustice may invalidate the decision even where evidence shows that no actual injustice occurred. The present circumstances were not exceptional.
6. The court did not decide whether routine splitting of urine samples was required, because the remaining sample would not have assisted the claimant. Refusal to admit evidence about security at other stadiums was justified. The court also did not need to decide whether every undisclosed expert assumption independently constituted procedural unfairness.
7. The court recognised the need for restraint when reviewing specialist sporting bodies, but that principle gives them a margin of latitude rather than immunity from supervision. The court may intervene where the body acts outside its powers or breaches the implied obligation of fairness.

Not stated in the judgment. This was a first-instance decision.