Vic court upholds VCAT cobalt ruling

Trainer Danny O’Brien says four Supreme Court judges have now found he and fellow Flemington trainer Mark Kavanagh did not administer cobalt to horses in their care.

The Court of Appeal on Friday upheld Racing Victoria’s appeal on a presentation charge but rejected an appeal over charges the trainers administered cobalt, which in high doses can allegedly enhance racehorses’ performances.

Racing Victoria took the long-running case to the Court of Appeal, after the Victorian Civil and Administrative Tribunal earlier this year overturned O’Brien and Kavanagh’s respective four and three-year disqualifications for administering cobalt.

Outside court O’Brien said the whole cobalt saga had been about administration and that once again they had been found innocent.

“We’re very pleased that the three Supreme Court Judges here today have reinforced Justice Garde’s decision that Mark and I have at no stage ever attempted to grease the rules of racing,” O’Brien said.

O’Brien and Kavanagh now return before VCAT president Justice Greg Garde for a hearing on penalty for presenting a horse to race after which cobalt was detected in post-race urine samples.

Justice Garde had concluded that while there was no doubt cobalt was administered to four O’Brien horses and one Kavanagh racehorse in late 2014, the trainers had no knowledge of it.

It was clear they were victims of veterinarian Tom Brennan and had no knowledge, inkling or suspicion that the vet intended to use the contents of a “vitamin complex” bottle in drips for their horses, the judge said in dismissing the charges in March.

O’Brien said he couldn’t prejudge the ruling on penalty upon return to VCAT.

“In similar cases like the ibuprofen cases and Luca Cumani when his horse Bauer was treated illegally before the Melbourne Cup, (and where) the trainer was found to be blameless, the racing authorities don’t usually push for a penalty,” O’Brien said.

“If Racing Victoria went that way it would be very disappointing and we’d have to take that on in front of Justice Garde.”

RV Chief Executive Giles Thompson said in a statement the ruling supports the introduction of the cobalt rule, along with its application and enforcement, in cases where excessive and dangerous levels of cobalt are discovered.

He said RV’s fundamental concern had been to take appropriate steps to protect the integrity of Victorian thoroughbred racing and to protect the welfare of horses.

“Where the Rules of Racing are breached, it is our job to take the appropriate action to enforce the rules,” Thompson said.

“This decision reinforces that the action taken by Racing Victoria’s integrity services team was the right and appropriate action when tests showed excessive levels of cobalt in horses.

“While it is now up to VCAT to determine penalties, we welcome the decision of the Court of Appeal as an important endorsement of the actions of our integrity services team.”

Thompson said RV would need time to review the judgement but said it was unlikely it would appeal to the High Court.

However he noted the Court of Appeal had determined that the evidence was now admissible and that the trainers were guilty of presenting their horses to race with excessive levels of cobalt.