Ball v Queensland All Codes Racing Industry Board - [2016] QCAT 369

CITATION:	Ball v Queensland All Codes Racing Industry Board [2016] QCAT 369
PARTIES:	Ronald Douglas Ball (Applicant)
v
Queensland All Codes Racing Industry Board (Respondent)

APPLICATION NUMBER:

OCR039-16

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

11 August 2016

HEARD AT:

Brisbane

DECISION OF:

Member Guthrie

DELIVERED ON:

14 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The transcript of the inquiry will be received by the Tribunal in these proceedings.

2. The video footage and any sound which is not conversation (or spoken words) will be received by the Tribunal in these proceedings.

3. The audio of the conversation (or spoken words) that can be heard on the video footage will not be received by the Tribunal.

The Tribunal further directs that:

1. The proceeding will be listed for a further half day oral hearing on a date to be advised.

2. Both parties must file in the tribunal a list of the dates they are unavailable to attend the resumed hearing by no later than 4:00 pm on 24 October 2016.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – FUNCTIONS OF TRIBUNALS – where applicant is a trainer of greyhounds where application for review of a decision of the Racing Disciplinary Board – where tribunal conducts hearing de novo - where Racing Disciplinary Board considered video footage obtained by a third party – where audio on video footage obtained by a third party – where Racing Disciplinary Board considered transcript of trainer’s attendance before stewards’ inquiry – whether video footage should be excluded by the tribunal on review – whether audio footage should be excluded by the tribunal on review – whether transcript of inquiry should be excluded by the tribunal on review

EVIDENCE – ADMISSIBILITY – EXCLUSIONS:IMPROPERLY OBTAINED EVIDENCE – where audio on video footage -
where video footage obtained by alleged breach of the Invasion of Privacy Act 1971 (Qld) – where video footage obtained by alleged trespass – whether video footage admissible – whether audio on footage admissible

EVIDENCE – ADMISSIBILITY – EXCLUSIONS: PRIVILEGES – SELF- INCRIMINATION PRIVILEGE – SCOPE OF PRIVILEGE – CIVIL PENALTY – where greyhound trainer spoke to panel of stewards – where transcript of inquiry – whether trainer should have been advised of right to silence - whether transcript of stewards’ inquiry should be admitted

EVIDENCE – ADMISSIBILITY – GENERAL PRINCIPLES – OTHER MATTERS – EVIDENCE LAW – APPLICATION AND SCOPE OF RULES OF EVIDENCE – where Tribunal not bound by the rules of evidence - whether video footage should be admitted at the discretion of the tribunal – whether audio on video footage should be admitted at the discretion of the tribunal – whether transcript of inquiry should be admitted at the discretion of the tribunal

Invasion of Privacy Act 1971 (Qld), s 4, s 42(2), s 43, s 44, s 46
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9(4), s 17, s 19, s 20, s 28
Racing Act 2002 (Qld), s 149ZE, s 152, s 152A

ABC v…

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: [2016] QCAT 369
Decision Date: 14 October 2016

CaseChat Overview and Summary

The applicant, Mr Ball, a trainer of greyhounds, applied for a review of a decision made by the Racing Disciplinary Board, which was constituted under the Greyhound Racing Act 1994. The dispute arose from a disciplinary action taken against Mr Ball after he was found to have used performance-enhancing drugs. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with reviewing the decision made by the Racing Disciplinary Board. The primary legal issues in this case were whether the video footage obtained by a third party, which included audio of Mr Ball’s conversation, should be excluded from evidence due to being improperly obtained under the Invasion of Privacy Act 1971 (Qld). Additionally, the court had to determine if the transcript of Mr Ball's attendance before the stewards' inquiry should be excluded because he was not advised of his right to silence.

The tribunal held that the audio portion of the video footage, which captured Mr Ball’s conversation, should be excluded from evidence. The court reasoned that the audio constituted a private conversation under the IPA, and its admission would contravene section 46 of the Act, which prohibits the use of unlawfully obtained evidence. The court also found that, even if the audio was not strictly prohibited by the IPA, it would not be fair to admit it due to the manner in which it was obtained. However, the video footage itself, excluding the audio, and any non-conversation sounds were deemed admissible. Furthermore, the tribunal concluded that the transcript of Mr Ball's attendance at the stewards' inquiry should be admitted, as there was no requirement under the law for him to be informed of his right to silence in that context.

The tribunal ordered that the transcript of the inquiry would be received in the proceedings. It also decided that the video footage and any sound that was not part of the conversation would be admitted as evidence. Conversely, the audio of the conversation captured on the video footage would not be received. The tribunal further directed that the proceedings would be scheduled for a further half-day oral hearing and requested both parties to submit a list of their unavailability for the hearing by a specified date.

Orders

Orders of the court

1. The transcript of the inquiry will be received by the Tribunal in these proceedings.

2. The video footage and any sound which is not conversation (or spoken words) will be received by the Tribunal in these proceedings.

3. The audio of the conversation (or spoken words) that can be heard on the video footage will not be received by the Tribunal.

The Tribunal further directs that:

1. The proceeding will be listed for a further half day oral hearing on a date to be advised.

2. Both parties must file in the tribunal a list of the dates they are unavailable to attend the resumed hearing by no later than 4:00 pm on 24 October 2016.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 46 of the IPA relevantly provides:46 Inadmissibility of evidence of private conversations when unlawfully obtained (1)Where a private conversation has come to the knowledge of a person as a result, direct or indirect, of the use of a listening device used in contravention of section 43, evidence of that conversation may not be given by that person in any civil or criminal proceedings. It is necessary for me to consider firstly, whether the audio in the footage comes within the meaning of ‘private conversation’ for the purpose of the IPA, and if so whether s 46 of the IPA necessarily prevents the audio from being received into evidence. If either of those questions is answered in the negative, I must consider whether as a matter of fairness the audio should be received. Meaning of Private Conversation Section 42 of the IPA provides:42 Reference to listening devices and private conversations (1) A reference in this part to a listening device does not include a reference to a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and to permit the person only to hear sounds ordinarily audible to the human ear. (2) A reference in this part to a party to a private conversation is a reference— (a) to a person by or to whom words are spoken in the course of a private conversation; and (b) to a person who, with the consent, express or implied, of any of the persons by or to whom words are spoken in the course of a private conversation, overhears, records, monitors or listens to those words. “Private conversation” is defined in the IPA as:private conversation means any words spoken by one person to another person in circumstances that indicate that those persons desire the words to be heard or listened to only by themselves or that indicate that either of those persons desires the words to be heard or listened to only by themselves and by some other person, but does not include words spoken by one person to another person in circumstances in which either of those persons ought reasonably to expect the words may be overheard, recorded, monitored or listened to by some other person, not being a person who has the consent, express or implied, of either of those persons to do so.[32] [32]IPA, s 4. Mr Ball asks me to carefully construe the terms of s 4 of the IPA, in particular, that section does not say “will be overheard” or “must be overheard”. Mr Ball has referred me to the observations of Gleeson CJ in ABC v Lenah Games Meats Pty Ltd:[33] There is no bright line which can be drawn between what is private and what is not. Use of the term “public” is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person or ordinary sensibilities is in many circumstances a useful practical test of what is private.[33](2001) 208 CLR 199.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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