Auld v Queensland Racing Ltd - [2013] QCAT 446

CITATION:

Auld v Queensland Racing Ltd [2013] QCAT 446

PARTIES:	Mr Ray McInnes Auld (Applicant)
V
Queensland Racing Ltd (Respondent)

APPLICATION NUMBER:

OCR197-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

9 August 2013

HEARD AT:

Brisbane

DECISION OF:

Richard Oliver, Senior Member
Patricia Hanly, Member

DELIVERED ON:

21 August 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Steward’s decision of 10 July 2013 is set aside and instead the applicant be disqualified for a period of 6 weeks.

CATCHWORDS:

REVIEW - Misconduct and provocation – where licensees involved in a physical altercation – where applicant struck in the face with a lead rope and responded by striking the third party assailant – where applicant provoked into striking – where both the applicant and the assailant engaged in abusive verbal exchanges before the assault – where third party primary cause of the verbal exchange – whether a 3 month disqualification excessive – where not sufficient weight given to the level of provocation.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

The applicant was self represented

RESPONDENT:

Mr Torpey represented Racing Queensland Limited.

REASONS FOR DECISION

Mr Auld holds a licence issued by Racing Queensland as a stable hand. He works and has worked for many years for trainers at the Clifford Park racecourse in Toowoomba. He attends the racecourse early morning to assist with track work. Ms Saal is also a licensed stable hand who attends the Toowoomba racecourse.
Prior to 3 July 2013 there had been ongoing friction between Mr Auld and Ms Saal, with both exchanging insults to the other. On the morning of 3 July 2012 the friction escalated to a point where Ms Saal struck Mr Auld in the face with the end of a lead rope and he retaliated by striking her at least once, if not twice, to her face.
On 10 July 2013 Stewards held an inquiry into the incident. Mr Auld pleaded guilty to a charge under Australian Racing Rule 175(q). That charge provides that the Stewards may penalise any person who in their opinion is guilty of any misconduct, improper conduct or unseemly behaviour. After hearing from both Mr Auld and various witnesses to the incident the Stewards disqualified Mr Auld from holding a stable hand’s licence for three months.
On 23 July 2013 Mr Auld filed an application to review the Stewards’ decision. He says that the penalty was too severe having regard to; his unblemished history within the racing industry; his plea of guilty to the charge; his remorse expressed immediately after the incident; loss of income; his good character as supported by a number of referees and the fact he was provoked into striking Ms Saal. He says that had these matters been properly taken into account by the Stewards they should not have disqualified him. He does not suggest what penalty should be imposed but we note that Ms Saal was fined $3,000.00 for her breach of ARR 175(q) arising out of the same incident.
The Tribunal’s function in a…

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: [2013] QCAT 446
Decision Date

CaseChat Overview and Summary

In the Queensland Civil and Administrative Tribunal, Mr Ray McInnes Auld, a licensed stable hand, applied to review a decision of the Stewards of Queensland Racing, who had disqualified him from holding a stable hand's licence for three months. Mr Auld pleaded guilty to a charge under Australian Racing Rule 175(q) for engaging in misconduct, improper conduct, or unseemly behaviour. The Tribunal was required to determine whether the Stewards' decision to disqualify Mr Auld for three months was appropriate, having regard to the level of provocation he experienced and other mitigating factors.

The Tribunal found that there had been ongoing friction between Mr Auld and Ms Saal, another licensed stable hand, which culminated in Ms Saal striking Mr Auld in the face with a lead rope. Mr Auld retaliated by striking Ms Saal at least once. The Tribunal found that Mr Auld's response was an instantaneous reaction to being provoked and that he was provoked into striking Ms Saal. Although the Tribunal found that Ms Saal's conduct was the primary cause of the conflict, it could not ignore the serious consequences of Mr Auld's assault, even though it was provoked. The Tribunal was of the view that the sanction imposed by the Stewards did not properly reflect the full extent of the provocation. The Tribunal concluded that a disqualification of six weeks would properly reflect the gravity of Mr Auld's conduct.

The Tribunal set aside the Stewards' decision and imposed a disqualification of six weeks from 10 July 2013. The Tribunal emphasised that the overall conduct of both Mr Auld and Ms Saal, not just the physical altercation, was quite disgraceful and brought the racing industry into disrepute. The Tribunal recognised that the Stewards have a responsibility to ensure racecourses are a safe place to work and that they must impose sanctions that reflect the seriousness of the conduct both as a deterrence and a punishment. However, the Tribunal found that the disparity in punishment between Mr Auld and Ms Saal was concerning, particularly given that Ms Saal struck Mr Auld in the face with a lead rope which left a noticeable welt and bruise. The Tribunal considered that the lead rope was used as a weapon and that Ms Saal's conduct was, in the main, the cause of the conflict between the parties.

Orders