In a pivotal day for Racing Victoria and its Integrity department the Court of Appeal will deliver its findings Friday morning into the cobalt findings involving trainers Mark Kavanagh and Danny O’Brien.

This is a critical result for the RV Integrity team, which the Victorian Civil and Administrative Tribunal had found “the procedure for testing for cobalt in equine urine substantially departed from the requirements set out the Rules of Racing.”

RV took the VCAT decision that cleared Kavanagh and O’Brien, to the Court Of Appeal, the case culminating on June 9, the decisions of the three Supreme Court Judges, President Chris Maxwell and Justices Stephen McLeish and Anthony Cavanough, taking until now to rule in the long running matter.

In appealing the decision of VCAT President Justice (of the Supreme Court) Greg Garde, RV announced it sought leave to appeal on two legal matters:

• “The proper interpretation” of the Rule 178D (regarding testing) which led to the tests that found the cobalt levels in the horses were inadmissible and
• “The interpretation of ‘cause’ under AR 175 (h)(i) and AR 175 (h) (ii) to determine the appropriate level of responsibility of licenced trainers for the management of their horses and their service providers”.

But a ruling in the favour of RV by the Court of Appeal may only have the matter returned to Garde to deal with the matter of penalty for “presentation” by the trainers, which carries an obviously lesser penalty than “administration”.

But Garde in his almost “watertight” findings at VCAT, ruled the trainers had no knowledge that vitamins drips administered by vet Dr Tom Brennan to horses trained by Kavanagh and O’Brien contained cobalt.

A summary of his findings read:

“The Tribunal (VCAT) is satisfied that Dr Tom Brennan, the veterinarian of both of the trainers, administered or directed the administration to each horse of a substance in a bottle labelled ‘vitamin complex’ in pre‐race drips.

“The substance contained a high concentration of cobalt chloride. Dr Brennan has been found guilty and disqualified. The Tribunal is not satisfied to the requisite standard that either Kavanagh or O’Brien caused Dr Brennan to administer the substance in the vitamin complex bottle, or that they were aware that it was being administered to their horses.

“The Tribunal is not satisfied to the requisite standard that either trainer was informed by Dr Brennan or suspected that he intended to administer an unproven and untested substance to their horses. Nor is the Tribunal satisfied that Kavanagh or O’Brien failed to make sufficient enquiries of Dr Brennan as to the substances that were to be administered to their respective horses, or were negligent in relying on veterinarians to administer pre‐race drips to their horses.

“The Tribunal finds that over the period from April 2014 until about August 2015, the procedure for testing for cobalt in equine urine adopted by Racing Victoria Ltd substantially departed from the requirements set out in AR 178D of the Rules of Racing. This is the rule that prescribes how sample testing for cobalt is to be conducted. The legal consequence is that the test results are inadmissible in evidence against the trainers.”

The VCAT findings were delivered March 17, RV taking until April 13 (it had 28 days) to announce and proceed it was seeking leave to appeal.

“We have lost that case on the basis of a technicality around the interpretation of a specific rule of racing,” RV then acting CEO Giles Thompson said.

This is clearly not true, as outlined in Garde’s comprehensive finding, focussing heavily on the actions and mistruths of Brennan along with the actions of RV’s Integrity Department in adopting testing procedures not within the rules.

Cobalt was “yes” administered to the horses in question (Magicool for Kavanagh) and Bondeiger, Caravan Rolls, De Little Engine and Bullpit for O’Brien), but Garde levelled all blame on Brennan. The horses “yes” were presented for the races by the trainers with cobalt (unknowingly) in their system.

Fellow trainer Peter Moody walked away from his business and successful training career when he was cleared of deliberate administration but guilty of “non-intentional” administration (and banned for six months) of cobalt to Lidari in 2014, the first horse to trigger the cobalt positives before Kavanagh and O’Brien.

But Thompson in announcing the challenge as “appropriate action’ to take added “Racing Victoria must pursue its core focus of the protection of the integrity of our sport and welfare of our horses.”

RV has appealed four cases to the Supreme Court in the past 17 years and has been successful at each appeal, the latest being trainer Mark Riley.

On winning their VCAT appeal in March against the Racing Appeals Disciplinary Board disqualification of four years (O’Brien), three years, Kavanagh) an outspoken O’Brien said “to stand here today, 26 months later, and have Justice Garde affirm that — he’s been very clear that neither Mark or I had any intention of cheating or trying to break any rules of racing — that we’re completely innocent of all charges.

“And he’s also thrown a light on the behaviour of Racing Victoria, the breaches of the rules that they in fact have engineered throughout this process.

“And that’s probably been the most disappointing thing — the bullying and vilification of both Mark and I and our families by some people has been quite incredible.

“Midway through this Racing Victoria brought on a show-cause hearing to try to take our (training) licences away before any charges had been heard.”

Friday’s ruling will also have ramifications for a long line of back-up cobalt inquiries involving trainers Lee and Shannon Hope, Terry O’Sullivan, Lenny Xuereb, Monica Croston and most recently Steve Pateman and Belinda Dunn

In New South Wales there is also a backlog of appeals on holding pending the Kavanagh and O’Brien Court of Appeal findings.

These include Mark’s son Sam on a six year three month (plus $300) disqualification, Paul Murray (three-and-a-half years), Dr Tom Brennan (four years), while RNSW is appealing against the upheld appeal of five charges against Brennan’s former employee  Dr Adam Matthews.

Another twist in the cobalt saga took place just last month in New South Wales when trainer Ron Quinton was cleared despite two horses returning elevated readings above the threshold. It was found that feed and vitamin supplements contributed to the outcome.

It prompted RNSW to issue a warning to trainers about a band of feed stock as well as being aware of some “custom-made horse feeds, feed additives, and/or supplements as some manufacturers were not listing all the active constituents, and/or the concentration of all active constituents on the labels.”

RV issued a similar notice at the time but did not mention cobalt.

RV’s Integrity department is currently embroiled in another high profile inquiry emanating out of the alleged race day treatment of the Robert Smerdon trained Lovani at Flemington last month. It is expected some major announcements are pending.