Abbott v Racing Queensland Limited - [2012] QCAT 230

CITATION:

Abbott v Racing Queensland Limited [2012] QCAT 230

PARTIES:	Mr Justin Kent Abbott (Applicant)
v
Racing Queensland Limited (Respondent)

APPLICATION NUMBER:

OCR071-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

23 May 2012

HEARD AT:

Brisbane

DECISION OF:

Mr Richard Oliver, Senior Member
Mr Jeremy Gordon, Member

DELIVERED ON:

31 May 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

That the Stewards’ decision that Mr Abbott’s licence be disqualified for ten months is varied to a period of disqualification of eight months.

CATCHWORDS:

RACING – APPLICATION FOR REVIEW OF PENALTY – where applicant pleaded guilty to presenting a horse in a harness race with a prohibited substance in excess of threshold

Queensland Civil and Administrative Tribunal Act 2009, ss 19, 20
Racing Act 2002
Australian Harness Racing Rules 188, 188A, 190

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 considered
Aldrich v Boulton and Ross [2000] QCA 501 considered
McKenzie v Acting Assistant Commissioner Wright [2011] QCATA 309 followed

APPEARANCES and REPRESENTATION:

APPLICANT:	Mr Justin Abbott in person
RESPONDENT:	Mr Wade Birch, Chief Steward for Racing Queensland

REASONS FOR DECISION

Background

Mr Justin Abbott is a trainer who held a trainer’s and driver’s licence under the Australian Harness Racing Rules made under the Racing Act 2002.

Mr Abbott presented a horse OCTOBER SON in a harness race at Albion Park on 14 February 2012 when a pre-race blood sample was found on analysis to have a total carbon dioxide (TCO2) level in excess of the limit of 36 millimoles per litre.

Mr Abbott was charged under Rule 190 of the Australian Harness Racing Rules which reads:

“(1) A horse shall be presented for a race free of prohibited substances.
(2) If a horse is presented for a race otherwise in accordance with sub-rule (1), the trainer of the horse is guilty of an offence.”

Prohibited substances are defined in Rules 188 and 188A. Rule 188A states that alkalinising agents are prohibited substances except when their presence is evidenced by total carbon dioxide (TCO2) at a level at or below a concentration of 36 millimoles per litre. In other words, above that level there is evidence of prohibited alkalinising agents in the horse.

Mr Abbott pleaded guilty to the charge and his licence was disqualified for 10 months. He claims that the penalty was excessive and applies for its review by this Tribunal.

OCTOBER SON was a “bleeder”, which refers to a tendency to bleed through the nose because of pulmonary haemorrhage when exercising. Under Rule 101 of the Australian Harness Racing Rules a horse which suffers a bleeding attack will be barred from racing for 3 months after the first such attack and barred for life if there is a second attack. For this reason and possibly for animal welfare reasons, it is common practice to control such tendency to bleed using medication. One such medication is furosemide, which is available under the brand name “Lasix”. This is an alkalinising agent and diuretic which is used to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] QCAT 230
Decision Date: 31 May 2012

CaseChat Overview and Summary

Abbott brought an application for review of a penalty imposed by Racing Queensland Limited, a racing authority. Abbott had pleaded guilty to presenting a horse in a harness race with a prohibited substance in its system, in excess of the permitted threshold. As a result of this offence, the Stewards imposed a penalty, including a period of disqualification from racing activities. Abbott sought a review of the penalty on the grounds that it was excessive and disproportionate.

The legal issues before the court were whether the penalty imposed was unjust and disproportionate, and whether there were any mitigating factors that should be taken into account in determining the appropriate level of penalty. The court was required to consider the relevant legislation and regulations governing the administration of racing and the imposition of penalties for breaches of those laws.

The court found that while Abbott’s conduct was serious, the penalty imposed by the Stewards was excessive and disproportionate. The court noted that Abbott had no previous history of similar offences and had taken steps to address the issue that led to the presence of the prohibited substance in the horse’s system. The court also found that the Stewards had not adequately considered all relevant mitigating factors in imposing the penalty. As a result, the court varied the penalty to a period of disqualification of eight months.

The court ordered that the Stewards’ decision be varied to a period of disqualification of eight months. The court noted that this reduced penalty reflected the mitigating factors and was a more appropriate sanction for Abbott’s conduct.

Orders

Orders of the court

That the Stewards’ decision that Mr Abbott’s licence be disqualified for ten months is varied to a period of disqualification of eight months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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