Arnold v Racing Qld - [2015] QSC 293

SUPREME COURT OF QUEENSLAND

CITATION:

Arnold v Racing Qld & Anor [2015] QSC 293

PARTIES:

DEBORAH ARNOLD

(applicant)

v
QUEENSLAND ALL CODES RACING INDUSTRY BOARD TRADING AS RACING QUEENSLAND

(first respondent)
and
BROCK MILLER
CHAIRMAN OF RACING DISCIPLINARY BOARD
(second respondent)

FILE NO/S:

No 4592 of 2015

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

30 October 2015

DELIVERED AT:

Brisbane

HEARING DATE:

2 October 2015

JUDGE:

Dalton J

ORDER:

1.     Declare that the first respondent’s seizure of greyhounds belonging to the applicant on 17 February 2015 was unlawful, and that the retention of those animals by the first respondent since that seizure has been unlawful.

2.     Declare that the decision of first respondent made 2 March 2015 prohibiting the applicant’s greyhounds competing in any event is void.

3.     Declare that the decision of the second respondent of 17 April 2015 rejecting the applicant’s appeal of 5 March 2015 is void.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – DECLARATIONS – where the applicant is a greyhound trainer – where the ABC broadcast an episode of Four Corners concerning live baiting and animal cruelty in the greyhound industry – where the applicant was subsequently summonsed to appear before a Stewards Inquiry of the first respondent – where the first respondent took possession of greyhounds owned by the applicant and retains possession of them – where the applicant applied for a declaration that the seizure and retention of the greyhounds was unlawful – whether on construction the statutory rules allowed the first respondent to seize and retain the greyhounds – whether if seizure was illegal retention could be justified

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the applicant was informed at the Inquiry and by two subsequent letters that the first respondent was considering warning her off racecourses – where the applicant was invited to show cause – where conduct found to have breached statutory rules included the applicant witnessing live baiting by others – where the first respondent decided to warn the applicant off – whether the first respondent erred in its finding that the applicant breached rules by merely witnessing live baiting by others

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – HEARING – NOTICE TO PERSONS AFFECTED – where the first respondent decided that all greyhounds owned by the applicant were prohibited from competing in any event – where the applicant was not given an opportunity to be heard – whether the applicant was denied natural justice

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the applicant’s solicitors emailed a notice of appeal to the second respondent without paying the requisite fee – where the applicant submits that the power under s 149V(3)(c) of the Racing Act 2002 (Qld) to reject the applicant’s appeal had not been enlivened

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW…

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: [2015] QSC 293
Decision Date: 30 October 2015

CaseChat Overview and Summary

The case of Arnold v Racing Qld involved a greyhound trainer who was summoned to appear before a Stewards Inquiry following an episode of Four Corners that exposed live baiting and animal cruelty in the greyhound industry. The trainer, Ms Arnold, sought a declaration that the seizure and retention of her greyhounds by Racing Qld, the first respondent, was unlawful. The trainer also challenged the decision of Racing Qld to warn her off all Queensland racecourses for life and the decision of the Racing Appeals and Disciplinary Board, the second respondent, to reject her appeal against that decision. The legal issues included whether the statutory rules allowed Racing Qld to seize and retain the greyhounds, whether the decision to warn Ms Arnold off was based on an error of law, whether she was denied natural justice by not being given an opportunity to be heard, and whether the rejection of her appeal was lawful.

The court found that the seizure and retention of the greyhounds was unlawful as it exceeded the powers granted by the statutory rules. The court also found that Racing Qld erred in its finding that Ms Arnold breached the rules by merely witnessing live baiting by others. The court held that the decision to warn Ms Arnold off was based on an error of law and that she was denied natural justice by not being given an opportunity to be heard. The court further found that the rejection of Ms Arnold’s appeal was unlawful as the second respondent had not given her notice and reasons for the decision.

The court declared that the seizure and retention of the greyhounds was unlawful, the decision of Racing Qld to prohibit the greyhounds from competing was void, and the decision of the Racing Appeals and Disciplinary Board to reject the appeal was also void. The court did not order the return of the greyhounds as it found that to do so would be futile, given the circumstances of the case.

Orders

Orders of the court

1. Declare that the first respondent’s seizure of greyhounds belonging to the applicant on 17 February 2015 was unlawful, and that the retention of those animals by the first respondent since that seizure has been unlawful.

2. Declare that the decision of first respondent made 2 March 2015 prohibiting the applicant’s greyhounds competing in any event is void.

3. Declare that the decision of the second respondent of 17 April 2015 rejecting the applicant’s appeal of 5 March 2015 is void.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Counsel for Ms Arnold argued that local rule 3(5) was in any event beyond power because it exceeded the rule making power at s 91 of the Racing Act. This argument proceeded on the basis that express investigative powers were given to particular officers under the Racing Act and those powers were not so draconian as that found at local rule 3(5). They did not allow seizure of live animals, and did not allow forfeiture of property without compensation. I must say I thought there was some force in that argument. However, because of my conclusions above, I need not determine whether or not it is correct.Decision to Warn Ms Arnold Off Racecourses for Life As can be seen from the transcripts of the Stewards Inquiry on 17 February 2015, Ms Arnold was told that the first respondent was considering warning her off racecourses. Ms Arnold was given a letter that day to the same effect, which informed her that she had the opportunity to show cause that afternoon – see Court Document 3, exhibit 2. That afternoon hearing did not take place, and on 19 February 2015 Ms Arnold was given another notice, which invited her to show cause “why you should not be warned off all racecourses in Queensland”. Ms Arnold was asked to make written submissions by close of business on 26 February 2015, and allowed the opportunity to appear at a hearing to make oral submissions on 27 February 2015 – see Court Document 3, exhibit 3. There was no issue taken as to the particulars of the first respondent’s concerns, as set out in that letter. They were:“1. You admitted you had participated in live baiting in an interview with Racing Queensland in Deagon, Brisbane on 17 February 2015 (In breach Greyhound Australasia Rules (GAR) R 86(af)).2. You admitted you had witnessed live baiting by others at [the unlicensed training premises] in an interview with Racing Queensland in Deagon, Brisbane on 17 February 2015 (In breach Greyhound Australasia Rules (GAR) R 86(q)).3. You used the live baiting of animals for a purpose connected with greyhound racing that was improper (In breach Greyhound Australasia Rules (GAR) R 86(af)).4. You used the live baiting of animals for the purpose of affecting the performance or behaviour of a greyhound (In breach Greyhound Australasia Rules (GAR) R 86(aa)).5. You participated at an unlicensed training establishment at [the unlicensed training premises] (Local Rule (LR) 52(3)).” The rules relied upon by the first respondent are as follows:“R86 A person (including an official) shall be guilty of an offence if the person:…(q) commits or omits to do any act or engages in conduct which is in any way detrimental or prejudicial to the interest, welfare, image, control or promotion of greyhound racing;… (aa) tampers with any gear used on a greyhound, or uses any substance or item to affect the performance of a greyhound or greyhounds;…(af) uses an animal for any purpose connected with greyhound racing in a manner which is improper;…” Ms Arnold’s solicitor wrote a five page letter (26 February 2015) to the first respondent, in response to the invitation to show cause. It was a plea in mitigation. It admitted the conduct to which Ms Arnold admitted in the Stewards Inquiry of 17 February 2015. It made submissions based on the limited factual nature of those admissions, and relied upon Ms Arnold’s previous good character and long involvement in the greyhound racing industry over 20 years, including as president of the United Queensland Greyhounds Association. It relied upon her admissions of wrongdoing, as well as her co-operation and remorse. It relied upon the fact that Ms Arnold had already suffered the suspension of her trainer’s licence and the confiscation of her dogs. It relied upon what it called her vilification in the media and submitted that “the above shows good cause why Ms Arnold should not be warned off all greyhound racecourses in Queensland, particularly in the circumstances of the wide range of alternative penalties open under GAR Rule 95 such as fines and periods of suspension”. References were tendered with the submissions, which went to Ms Arnold’s character. Ms Arnold did not attend to orally show cause.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Arnold v Racing Qld & Anor [2015] QSC 293
PARTIES:	DEBORAH ARNOLD (applicant) v QUEENSLAND ALL CODES RACING INDUSTRY BOARD TRADING AS RACING QUEENSLAND (first respondent) and BROCK MILLER CHAIRMAN OF RACING DISCIPLINARY BOARD (second respondent)
FILE NO/S:	No 4592 of 2015
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	30 October 2015
DELIVERED AT:	Brisbane
HEARING DATE:	2 October 2015
JUDGE:	Dalton J
ORDER:	1. Declare that the first respondent’s seizure of greyhounds belonging to the applicant on 17 February 2015 was unlawful, and that the retention of those animals by the first respondent since that seizure has been unlawful. 2. Declare that the decision of first respondent made 2 March 2015 prohibiting the applicant’s greyhounds competing in any event is void. 3. Declare that the decision of the second respondent of 17 April 2015 rejecting the applicant’s appeal of 5 March 2015 is void.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – DECLARATIONS – where the applicant is a greyhound trainer – where the ABC broadcast an episode of Four Corners concerning live baiting and animal cruelty in the greyhound industry – where the applicant was subsequently summonsed to appear before a Stewards Inquiry of the first respondent – where the first respondent took possession of greyhounds owned by the applicant and retains possession of them – where the applicant applied for a declaration that the seizure and retention of the greyhounds was unlawful – whether on construction the statutory rules allowed the first respondent to seize and retain the greyhounds – whether if seizure was illegal retention could be justified ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the applicant was informed at the Inquiry and by two subsequent letters that the first respondent was considering warning her off racecourses – where the applicant was invited to show cause – where conduct found to have breached statutory rules included the applicant witnessing live baiting by others – where the first respondent decided to warn the applicant off – whether the first respondent erred in its finding that the applicant breached rules by merely witnessing live baiting by others ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – HEARING – NOTICE TO PERSONS AFFECTED – where the first respondent decided that all greyhounds owned by the applicant were prohibited from competing in any event – where the applicant was not given an opportunity to be heard – whether the applicant was denied natural justice ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the applicant’s solicitors emailed a notice of appeal to the second respondent without paying the requisite fee – where the applicant submits that the power under s 149V(3)(c) of the Racing Act 2002 (Qld) to reject the applicant’s appeal had not been enlivened ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW…