Bode v Queensland All Codes Racing Industry Board

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CITATION:

Bode v Queensland All Codes Racing Industry Board [2016] QCAT 529

PARTIES:

Gerald Lansborough Bode

(Applicant)
v

Queensland All Codes Racing Industry Board (Respondent)
APPLICATION NUMBER: OCR224-15
MATTER TYPE: Occupational regulation matters
HEARING DATE: 24 June 2016
HEARD AT: Townsville
DECISION OF: Member Pennell
DELIVERED ON: 5 December 2016
DELIVERED AT: Townsville

DECISION MADE:

The decision in respect of conviction and penalty is set aside and the charge preferred against the Applicant pursuant to Australian Racing Rules, Rule 175(q) is dismissed.
CATCHWORDS:

ADMINISTRATIVE REVIEW – principles applied –  fresh hearing on the merits – racing – natural justice principles – rules of evidence – fresh evidence – allegations of misconduct, improper conduct and unseemly conduct – physical altercation between persons involved in the racing industry – whether defence of self defence should be accepted – conflicting evidence – denial of natural justice – independent witness not made available for cross-examination – undue weight placed upon a written statement.  

Queensland Civil and Administrative Tribunal Act         2009 (Qld) – s 3(d), s 17, s 19, s 19(c), s 20, s 24(1), s 28, s 28(2), s 28(3)(a), s 28(3)(b), s 28(3)(c), s 28(4) and s 28(3).

Racing Act 2002 (Qld), s 4 and s 143.
Australian Racing Rules, Rule 175(q).

The King v War Pensions Entitlement Appeal Tribunal (1938) 50 CLR 228.
Local Government Board v Arlidge [1915] AC 120.
Briginshaw v Briginshaw (1938) 60 CLR 336.
McDonald v Director-General of Social Security (1984) 1 FCR 354.
Bushell v Repatriation Commission (1992) 175 CLR 408.
Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
R v Wadley, ex-parte Burton [1976] Qd R 286.

Gould v Isis Club Incorporated [2015] QSC 253.
Russell v Duke of Norfolk [1949] 1 All ER 109.
Ex Parte Angliss Group (1969) 122 CLR 546.
Kioa v West (1985) 159 CLR 550.

R v Brewer; Ex parte Renzella [1973] VR 375.
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58.
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577.
Hall v The NSW Trotting Club Limited [1977] 1 NSWLR 378.

APPEARANCES and REPRESENTATIONS:
APPLICANT:           

Mr J Greggery of Counsel instructed by Purcell Taylor Lawyers.
RESPONDENT:

Mr M Henry of Counsel instructed by Landers and Rogers Solicitors.

REASON FOR DECISION

Introduction

[1]On 29 August 2015, the Herbert River Jockey Club at Ingham conducted a race meeting.  Bookmakers attended that race meeting, including Mr Lloyd Mitchell.  He is a longstanding bookmaker in North Queensland, and has held his bookmaker’s licence for approximately 50 years.   

[2]Another Bookmaker at that meeting was Mrs Bode.  She is the wife of Mr Gerard Bode (the Applicant).  The Applicant is a licensed Bookmaker’s clerk and has held that type of licence for approximately 15 to 20 years.

[3]Mr Mitchell and the Applicant had been good friends.  Their friendship goes as far back as to when they were at school together.  Each had been the best…

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Details
Case
[2016] QCAT 529
Decision Date

CaseChat Overview and Summary

Bode v Queensland All Codes Racing Industry Board involved a dispute within the racing industry, with the Queensland Civil and Administrative Tribunal (QCAT) tasked with reviewing the decision of the Racing and Betting Disputes Board (RDB). The Applicant, who had been found guilty of misconduct, improper conduct, and unseemly conduct, appealed the decision. The key legal issues were whether the RDB had denied natural justice by not allowing the Applicant to cross-examine an independent witness and whether the RDB had improperly weighed a written statement against the Applicant.

The Tribunal considered the principles of natural justice and the rules governing the admission of evidence. It noted that QCAT was not bound by the strict rules of evidence but was required to act according to substantial justice. The Tribunal found that the RDB had indeed denied natural justice by not allowing the Applicant to cross-examine an independent witness, which put the Applicant at a significant disadvantage. Furthermore, the RDB had placed undue weight on a written statement without proper consideration of its reliability and relevance, which also breached the principles of natural justice.

In conclusion, the Tribunal found that the RDB's decision was flawed due to the denial of natural justice and the improper weighting of evidence. The Tribunal ordered a fresh hearing on the merits to ensure that all principles of natural justice were observed and that the evidence was properly assessed. This decision underscored the importance of adhering to natural justice principles and the need for tribunals to act with fairness and impartiality in their proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal is not bound by the rules of evidence, or any practices or procedures applying to courts of record.[30] It may inform itself in any way it considers appropriate,[31] and may admit into evidence the contents of any document despite the noncompliance with any time limit or other requirement under this Act, an enabling Act or the rules relating to the document or the service of it.[32] [30]Ibid s 28(3)(b).[31]Ibid s 28(3)(c).[32]Ibid s 28(4).[37]Although not bound by any rules of evidence, this does not mean that all rules of evidence may be ignored as of no account. Evatt J enunciated in The King v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228 at 256 – “ ……in my opinion, the Tribunal did not act "according to substantial justice." This is the overriding statutory command, and it is almost a paraphrase of the general principle enunciated by Viscount Haldane in Arlidge's Case.[33] Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, “bound by any rules of evidence.” Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer substantial justice.” [33]Local Government Board v Arlidge [1915] AC 120.Fresh EvidenceEvidence of Dr Maguire[38]The Respondent submitted to the Tribunal that the proceedings should be in relation to the documents that were before the Inquiry and the appeal to the RDB. That comment was in response to the Dr Maguire’s addendum reports provided by the Applicant. The Applicant says that the information provided by Dr Maguire is relevant to the matter, and the Tribunal would be satisfied of its supporting weight to the application. [39]Dr Maguire had completed three documents[34] for this matter, all in support of the Applicant. In those documents, Dr Maguire made comments relating to the Applicant’s current medical condition and whether that condition would have impact upon his ability to wrestle with Mr Mitchell on the ground and his ability to stand and regain his feet without assistance. Those comments were consistent throughout all the documents.[34]A single page letter addressed to the Applicant’s solicitor and dated 20 November 2015, a single page statement dated 5 February 2016 and a two-page document (undated). [40]The Tribunal has been asked by the Respondent to accept the statement of Mr Holden who said that when he located the Applicant and Mr Mitchell, they were wrestling with each other on the ground. He identified the Applicant as being on top of Mr Mitchell. When he went over to them and told them to get off the ground. Both men then got up and started blaming each other for starting the altercation.[35][35]Statement of Mr Thomas Holden dated 5 November 2015 at paragraphs 7 – 10.[41]What Dr Maguire said regarding that evidence was that the Applicant had previously undergone bilaterally total knee replacements and had experienced significant complications following the surgery with extreme pain and stiffness. [42]Dr Maguire last reviewed the Applicant’s condition on 26 June 2015 and it was his assessment that because of the stiffness and the pain associated with his condition, it was highly unlikely that the Applicant would have wrestled on the ground as alleged by Mr Holden. Dr Maguire also said that it was highly unlikely that the Applicant could get up from the ground unassisted, and without that assistance he would not have been able to get to his feet. [43]The question arises as to whether the Tribunal could accept the evidence of Dr Maguire, and if so, does it place the Respondent at a disadvantage. The answer to that is no. Firstly, the Respondent did not seek to cross-examine Dr Maguire, therefore his evidence is unchallenged. [44]Secondly, in some cases, many days, weeks, months or even a year or more may have passed since the original decision was made by the decision maker and the finding of the matter being determined by the Tribunal. It would be conceivable that the Tribunal might reach a decision that ought to have been made by the decision maker at a significantly earlier time.[45]The legislation[36] is quite clear on the point that the Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate, but in doing so, it must always observe the rules of natural justice. The Tribunal has the discretion to admit into evidence the contents of any document, providing of course it is relevant to the facts in issue and it does not impeach the rules already described. It must be noted that the application of natural justice by the Tribunal is not exclusive for either party, that principle must be applied to all parties to a proceeding. [36]Queensland Civil and Administrative Tribunal Act 2009, s 28.[46]When deciding a matter, the Tribunal is generally obliged to have regard to the best and most current information available. This rule of practice is no more than a feature of good public administration. Therefore, when the Tribunal elects to decide in substitution for the original decision, it would be surprising in the extreme if the substituted decision did not have to conform to such a standard.[37][37]Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299.[47]It appears that there is no good reason why the Tribunal should not accept the evidence of Dr Maguire; after all, the reliance upon that evidence by the Applicant was not contested. Dr Maguire’s evidence regarding the Applicant’s mobility, or lack thereof, is an important feature of his proposition that the Applicant could not have undertaken the acts that Mr Holden allegedly saw. Discussion

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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