Butts v Racing Queensland Limited
[2013] QCAT 40
| CITATION: | Butts v Racing Queensland Limited [2013] QCAT 40 |
| PARTIES: | Terrence William Butts (Applicant) |
| v | |
| Racing Queensland Limited (Respondent) |
| APPLICATION NUMBER: | OCR058-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 18 April 2012 |
| HEARD AT: | Townsville |
| DECISION OF: | Keta Roseby, Member |
| DELIVERED ON: | 25 January 2013 |
| DELIVERED AT: | Townsville |
| ORDERS MADE: | 1. The decision of Racing Queensland made on 15 February 2012 is set aside. |
| CATCHWORDS: | Professional journalist also licensed trainer – where he published an article regarding the swabbing procedures of Racing Queensland in his capacity as journalist – where he was charged and found guilty by Racing Queensland of a breach of AR 175A – whether he was bound by the Australian Rules of Racing whilst acting in his capacity as a journalist Queensland Civil and Administrative Tribunal Act 2009, s 20 Australian Rules of Racing, rules 2, 175A |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr AJ Glynn SC instructed by Emanate Legal |
| RESPONDENT: | Mr HA Walters instructed by Racing Queensland Limited |
REASONS FOR DECISION
Mr Butts has sought a review of a decision of the Stewards, made 15 February 2012, wherein Mr Butts was found guilty of breaching Australian Rule of Racing (AR) 175A and penalised by way of reprimand.
AR 175A reads:
“Any person bound by these Rules who either within a racecourse or elsewhere in the opinion of the Committee of any Club or the Stewards has been guilty of conduct prejudicial to the image, or interests, or welfare of racing may be penalised.”
Background
Mr Butts is a journalist (of some 45 years experience) and a licensed trainer. At the relevant time, Mr Butts was contracted to write articles for the North Queensland Register (the Register) and the Let’s Go Horse Racing website (the Website).
On 22 and 24 November 2011, Mr Butts published an article on the Website and in the Register, respectively, regarding the swabbing of the horse “Show Me An Ace” by Racing Queensland Stewards. Specifically, Mr Butts reported concerns relayed to him by the horse’s trainer, Mr Darryl Hansen, regarding swab testing procedures in Queensland and their accuracy.
Following the publication of the articles, Mr Butts, in his capacity as a licensed trainer, was required to attend before a Stewards Inquiry on 21 December 2011 and 15 February 2012. At the Inquiry, Mr Butts was charged under AR 175A.
The specifics of the charge were that:
“Mr Terry Butts, a licensed Trainer with Racing Queensland Limited, did engage in conduct prejudicial to the image of racing by writing and causing to be published an article in the North Queensland Register on 24 November 2011 which contained factual inaccuracies that were calculated to make it appear to [his] readership that the Integrity Department of Racing Queensland Limited - the controlling body for racing in Queensland - had been wrong, highhanded and negligent in its handling of a swab sample taken from the racehorse Show Me An Ace at the Eagle Farm meeting on November 12, 2011.”[1]
[1] Transcript of Proceedings, Wednesday 15 February 2012, p30.
Mr Butts told the Inquiry that what he had done was to report a story, as told to him by his source, without editorial comment. He said that not even the headlines were his product but rather the editors of the Register and the Website. Mr Butts also said that he had asked his source, Mr Hansen, together with Mr Hansen’s solicitor, to check the article for accuracy before it was published.
Racing Queensland took issue with the fact that Mr Butts did not give the Stewards the opportunity to respond before publishing the article. However, what became clear from the transcript of the Inquiry was that Racing Queensland were not looking for their version of the story to be published to provide balance but, rather, that only their version be published.
It was submitted for Racing Queensland that this was because the version published by Mr Butts was factually inaccurate and that there were not two versions of the one story, but only the one: theirs. Accordingly, Racing Queensland, though they were offered on countless occasions by Mr Butts to have their version published, declined the invitation and would only be satisfied with a retraction.[2]
[2]The Tribunal notes that it would not be possible for Mr Butts to retract someone else’s words. He can only publish another version.
At the Inquiry, the Stewards told Mr Butts that: “Licensees are not absolved from their obligations to refrain from engaging in conduct prejudicial to the image of racing merely because they choose to engage in other pursuits, also even if those other pursuits involve forms of paid employment.”[3]
[3] Transcript of Proceedings, Wednesday 15 February 2012, p37.
At the conclusion of the Inquiry and in finding Mr Butts guilty of the charge, the Stewards said that they were satisfied that there were factual inaccuracies in the article, that it was written in a ‘derogative’ manner, that Mr Butts had not taken steps to confirm what he was reporting (by contacting Racing Queensland) and found that Mr Butts had engaged in conduct ‘contrary to the image of racing’.[4]
[4] Transcript of Proceedings, Wednesday 15 February 2012, p38.
The Application
In Mr Butts’ application to the Tribunal, it was submitted that the Stewards erred in their finding that Mr Butts was a person bound by the Rules of Racing when he was acting in his capacity as a journalist at the time he engaged in the conduct charged as:
a)“[Mr Butts], as a licensed person, was found guilty of conduct as a Journalist that was alleged to be prejudicial to the image of racing;
b)the conduct [Mr Butts] was found guilty of was conduct directly relating to [Mr Butt’s] performance of his duties in his capacity of his employment as a journalist, not as a licensed person;
c)the application by the Stewards of Rule 175A of the Australian Rules of Racing to [Mr Butt’s] conduct adversely affects [Mr Butt’s] right to engage in his capacity as a Journalist.”
Mr Butts is seeking that the decision of Racing Queensland Stewards be set aside and that he be found not guilty of a breach of AR 175A.
The function of the Tribunal is to review the decision of the Stewards and produce the correct and preferable decision by way of a fresh hearing on the merits.[5]
[5] Queensland Civil and Administrative Tribunal Act 2009, s 20.
Issues
The issues for determination by the Tribunal are:
a)Is Mr Butts bound by AR 175A whilst he is acting in his capacity as a journalist?
b)If so, did Mr Butts breach AR 175A?
Is Mr Butts bound by AR 175A whilst he is acting in his capacity as a journalist?
AR 175A refers to the conduct of a person “bound by” the Australian Rules of Racing. In this regard, AR 2 states:
“Any person who takes part in any matter coming within these Rules thereby agrees with the Australian Racing Board and each and every Principal Racing Authority to be bound by them.”
There is no doubt that, whilst Mr Butts is engaging in conduct the subject of a matter coming within the Rules of Racing, that is, his trainer’s license, he would be bound by AR 175A. However, the article was clearly written while undertaking his profession as a journalist.
Counsel for Mr Butts made the point that the real issue raised by Racing Queensland was that Mr Butts did not give the Stewards the opportunity to respond in the article and that this is properly a complaint about his conduct as a journalist and not as a licensed trainer.
In any event, there is no evidence before the Tribunal that satisfies me that Mr Butts was acting in his capacity as licensed trainer in publishing the articles.
It was further submitted by Counsel for Mr Butts that Racing Queensland had given AR 2 too wide a reading and that it should be read as meaning that a person “who takes part in any matter coming within the Rules” is bound by the Rules in respect of that matter, rather than being bound in respect of every facet of their life.
A person, in agreeing to the Rules of Racing in order to obtain a trainer’s licence or otherwise, cannot then be required to conduct themselves, outside of the matters coming within the Rules of Racing, in a different way than would otherwise be required of them.
I agree with and accept the submissions made on behalf of Mr Butts. The Australian Rules of Racing cannot (and should not) bind a person beyond their conduct in respect of matters coming within the Rules. Mr Butts did not publish the article in his capacity as a licensed trainer; clearly he was conducting himself in his capacity as a journalist.
On the basis of these submissions, which I accept, I find that Mr Butts was not bound by AR 175A when he published the article.
If it were the case that Mr Butts had access to a particular story only by reason of him being a licensed trainer, then that would be a different case because it would be conduct regarding matters coming within the Rules. That is not the case here.
Accordingly, I therefore set aside the decision of Racing Queensland and order that the charge be dismissed.
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