Appo v Queensland Racing Integrity Commission - [2019] QCAT 313

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Appo v Queensland Racing Integrity Commission [2019] QCAT 313

PARTIES:

BEAU-DENE APPO

(applicant)

v

QUEENSLAND RACING INTEGRITY COMMISSION

(respondent)

APPLICATION NO/S:

OCR172-19

MATTER TYPE:

Occupational regulation

DELIVERED ON:

11 October 2019

HEARING DATE:

16 September 2019

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

ORDERS:

The Tribunal:

1. Confirms the Internal Review decision of the Queensland Racing Integrity Commission;

2. Returns the matter to the Queensland Racing Integrity Commission with the direction that it imposes so much of the 4 week period of suspension of the Applicant’s license that has not been served with a direction that such suspension commence at midnight on Sunday, 1 December 2019 and expire at a date as determined by the Commission.

CATCHWORDS:

GAMING AND LIQUOR – ADMINISTRATION –RACING – RACING COMMISSIONS, BOARDS AND TRIBUNALS – racing clubs and associations – disqualification of owner, trainer or jockey – jockey weighed-in as underweight – missing gel pad – no explanation as to how it went missing – whether Queensland Racing Integrity Commission must establish fault on part of jockey – strict liability – opportunity to check – whether lack of due diligence

GAMING AND LIQUOR – ADMINISTRATION –RACING – RACING COMMISSIONS, BOARDS AND TRIBUNALS – stewards and committees of race clubs – functions and powers generally – whether horse should have been disqualified – weight calculated with allowance of 0.5 kg under AR 209(2)(a) Australian Rules of Racing – no account is to be taken of fractions of 0.5kg under AR 184 – whether jockey should have been suspended

Australian Rules of Racing, AR 184, AR 209
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Racing Integrity Act 2016 (Qld)

Kehl v Board of Professional Engineers of Qld [2010] QCATA 58
Morris v Racing Queensland Ltd [2014] QCAT 76
Queensland All Codes Racing Industry Board v Thomas [2016] QCATA 82
Wallace v Queensland Racing [2007] QDC 168

APPEARANCES & REPRESENTATION:

Applicant:

J Murdoch QC

Respondent:

J Ford, instructed by the Commission

REASONS FOR DECISION

Beau-Dene Appo is a licensed jockey. On 22 April 2019 he rode the winner of the last race at the Toowoomba Turf Club meeting. His mount Peridae was handicapped with the weight of 57 kg. At the conclusion of the race Jockey Appo weighed in at 56.2kg. He was 800 grams light. He was asked whether he was missing any gear and realised he was missing a gel pad which was positioned under his saddle. It weighed approximately 900 grams.
Following a Stewards’ enquiry, Peridae was disqualified under Australian Rules of Racing AR 209. Jockey Appo’s licence was suspended for four weeks to commence on Tuesday, 30 April 2019 and expire at midnight on Tuesday, 28 May 2019. That suspension was stayed by the Tribunal pending the outcome of this review.
Jockey Appo seeks to review the decision of the internal review which affirmed the Stewards’ decision. This Tribunal derives its jurisdiction to conduct an external review of the decision under s 246 of the Racing Integrity…

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: [2019] QCAT 313
Decision Date: 11 October 2019

CaseChat Overview and Summary

In the case of Appo v Queensland Racing Integrity Commission, the Tribunal was tasked with reviewing a decision made by the Queensland Racing Integrity Commission in relation to a disqualified race. The central issue was whether the Commission must establish fault on the part of the jockey, Appo, who weighed in underweight due to a missing gel pad, in order to impose a penalty. The Tribunal had to determine whether the Commission had applied the correct legal principles in reviewing the stewards' decision to disqualify the horse and suspend the jockey. Additionally, the Tribunal needed to decide whether the horse should have been disqualified, considering the weight calculated with a 0.5 kg allowance under AR 209(2)(a) and the rule that no account is to be taken of fractions of 0.5kg under AR 184.

The Tribunal found that the Queensland Racing Integrity Commission had correctly applied the law in reviewing the stewards' decision. The Tribunal noted that under AR 209(2)(b), any person at fault in relation to the failure to carry the correct weight may be penalised, but the onus of proof is on the Commission to establish fault. The Tribunal also held that the horse should not have been disqualified because the weight was calculated with the allowed deduction, and the stewards did not have sufficient evidence to prove that the jockey was at fault for the missing gel pad. Furthermore, the Tribunal concluded that the jockey should not have been suspended as there was no evidence of a lack of due diligence on his part.

The Tribunal confirmed the Internal Review decision of the Queensland Racing Integrity Commission and returned the matter to the Commission with directions to impose the remaining portion of the 4-week suspension of the Applicant's license. The Tribunal ordered that the suspension commence at midnight on Sunday, 1 December 2019, and expire at a date determined by the Commission.

Orders

Orders of the court

The Tribunal:

1. Confirms the Internal Review decision of the Queensland Racing Integrity Commission;

2. Returns the matter to the Queensland Racing Integrity Commission with the direction that it imposes so much of the 4 week period of suspension of the Applicant’s license that has not been served with a direction that such suspension commence at midnight on Sunday, 1 December 2019 and expire at a date as determined by the Commission.

Background

Background to the litigation

The Tribunal’s function on such a review application is to produce the correct and preferable decision by way of a fresh hearing on the merits.[1] Because this is an administrative review proceeding, the Tribunal’s function is to review the decision, not the process by which it was arrived at nor the reasons given for making it. Accordingly, the Tribunal is not required to identify an error in either the process or the reasoning that led to the decision being made. There is no presumption the original decision is correct.[2][1]Queensland Civil and Administrative Tribunal 2009 (Qld), s 20.[2]Kehl v Board of Professional Engineers of Qld [2010] QCATA 58, [9].Background Following the weigh-in the Stewards held an initial enquiry to determine whether Peridae should be disqualified. At that enquiry Jockey Appo could not explain the absence of the gel pad. He said he always checks to see if they (the trainer or stable hand) have put the gel pad down first. He was asked whether the mare was resettled behind the barriers. By that, I assume the Chairman was referring to whether any gear needed adjustment. Jockey Appo said nothing was required but added the girth was loose. Mr Nathan Evans, represented the trainer at the enquiry, he was the person who took the saddle and gear from Jockey Appo, after the weigh-in, to the stables where he saddled Peridae. He could not explain the absence of the gel pad. He gave evidence that he put it on first followed by the two pieces of black packing and then the number cloth. Jockey Appo asked more than once whether anyone had checked the track. It will be recalled that this was the last race of the day. There was a short adjournment for the stewards to watch the film of the race. When the enquiry resumed the decision was made to disqualify Peridae. That was after allowing a 500 grams deduction permitted under the Australian Rules of Racing (‘the Rules’). I will refer to this later in these reasons. Jockey Appo was unable to provide any explanation for the absence of the gel pad. Still no one had checked the track. It appeared that the stewards had watched the film of the race which, obviously, showed nothing amiss. Jockey Appo was charged under AR 209(2)(b). For completeness I set out the entire rule.(1) A rider must ensure that his or her horse does not carry less weight than what it is required to carry in a race. (2) Subject to subrule (3), if a horse carries less weight than what it is required to carry in a race:(a)it will be disqualified from the race, provided that the Clerk of the Scales must allow the rider of the horse 0.5kg; and (b)notwithstanding subrules (1) and (2)(a), any person at fault in relation to the failure to carry the correct weight may also be penalised.(3) Subject to compliance with AR 208, a horse shall be deemed to have carried its weight from the start of the race to the winning post if, in the opinion of the Stewards, the rider remains in contact with the horse or any part of the horse’s gear from the start of the race to the winning post.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Appo v Queensland Racing Integrity Commission [2019] QCAT 313
PARTIES:	BEAU-DENE APPO (applicant)
v
QUEENSLAND RACING INTEGRITY COMMISSION (respondent)
APPLICATION NO/S:	OCR172-19
MATTER TYPE:	Occupational regulation
DELIVERED ON:	11 October 2019
HEARING DATE:	16 September 2019
HEARD AT:	Brisbane
DECISION OF:	Member King-Scott
ORDERS:	The Tribunal: 1. Confirms the Internal Review decision of the Queensland Racing Integrity Commission; 2. Returns the matter to the Queensland Racing Integrity Commission with the direction that it imposes so much of the 4 week period of suspension of the Applicant’s license that has not been served with a direction that such suspension commence at midnight on Sunday, 1 December 2019 and expire at a date as determined by the Commission.
CATCHWORDS:	GAMING AND LIQUOR – ADMINISTRATION –RACING – RACING COMMISSIONS, BOARDS AND TRIBUNALS – racing clubs and associations – disqualification of owner, trainer or jockey – jockey weighed-in as underweight – missing gel pad – no explanation as to how it went missing – whether Queensland Racing Integrity Commission must establish fault on part of jockey – strict liability – opportunity to check – whether lack of due diligence GAMING AND LIQUOR – ADMINISTRATION –RACING – RACING COMMISSIONS, BOARDS AND TRIBUNALS – stewards and committees of race clubs – functions and powers generally – whether horse should have been disqualified – weight calculated with allowance of 0.5 kg under AR 209(2)(a) Australian Rules of Racing – no account is to be taken of fractions of 0.5kg under AR 184 – whether jockey should have been suspended Australian Rules of Racing, AR 184, AR 209 Queensland Civil and Administrative Tribunal Act 2009 (Qld) Racing Integrity Act 2016 (Qld) Kehl v Board of Professional Engineers of Qld [2010] QCATA 58 Morris v Racing Queensland Ltd [2014] QCAT 76 Queensland All Codes Racing Industry Board v Thomas [2016] QCATA 82 Wallace v Queensland Racing [2007] QDC 168
APPEARANCES & REPRESENTATION:
Applicant:	J Murdoch QC
Respondent:	J Ford, instructed by the Commission