QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Diebert v Queensland Racing Integrity Commission [2021] QCAT 184
PARTIES: PAUL DIEBERT (applicant)
v
QUEENSLAND RACING INTEGRITY COMMISSION (respondent)
APPLICATION NO/S:
OCR284-19
MATTER TYPE:
Occupational regulation matters
DELIVERED ON:
4 May 2021
HEARING DATE:
13 November 2020
HEARD AT:
Brisbane
DECISION OF:
Member Traves
ORDERS:
The reviewable decision, being the reconsidered decision of 20 August 2019, is confirmed.
CATCHWORDS: PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – where applicant took early lead - where alleged failure to relinquish lead which resulted in over exertion and horse not finishing competitively – whether applicant drove in a manner that was unacceptable - whether breach of Australian Harness Rules, rule 149(2) – consideration of appropriate penalty.
Australian Harness Racing Rules, rule 149(2)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 23
Racing Integrity Act 2016 (Qld), s 246
Currie v Queensland Racing Integrity Commission [2020] QCAT 240
Dixon v Queensland Racing Integrity Commission [2018] QCAT 183
Mifsud v Racing Victoria Stewards [2007] VRAT 6 McMullen v Racing Queensland Limited [2012] QCAT 286REASONS FOR DECISION
Mr Paul Diebert has applied for a review of a decision by the Queensland Racing Integrity Commission, dated 20 August 2019, which confirmed the decision of the Stewards that the charge against rule 149(2) of the Australian Harness Racing Rules (the Rules) was substantiated and to impose a penalty of six (6) weeks’ suspension.
This matter arose out of a drive by Mr Diebert of Ohoka Punter (NZ) in Race 8 at Albion Park on 20 July 2019 and concerned Mr Diebert’s driving tactics. Essentially, it was alleged that Mr Diebert had driven in a manner that was unacceptable by failing to relinquish the lead which meant the horse had been over exerted resulting in it finishing in tenth position, beaten in excess of 31 metres.
Relevant statutory provisions
The review process under the Racing Integrity Act 2016 (Qld) begins with an internal review of the original decision. An ‘original decision’ is defined to include, relevantly, a decision to take disciplinary action relating to a licence.[1]
[1]Racing Integrity Act 2016 (Qld), s 240(1)(b).
The internal review decision is reviewable pursuant to s 246 of the Racing Integrity Act 2016 (Qld).[2] Section 246, which provides that a person may apply for review of an internal review decision, applies to a person who, under s 245(6), must be given a review notice for an internal review decision. As the decision on internal review was not the decision sought by Mr Diebert, he was entitled, under s 245(6), to receive a review notice and to apply for external review.
[2]If the internal review decision confirms the original decision, the original decision is taken to be the internal review decision: s 245(4), Racing Integrity Act 2016 (Qld).
The purpose of the review is to produce the correct and preferable decision, which must be arrived at by way of a fresh hearing on the merits.[3] In doing so,…
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- AGLC
- Diebert v Queensland Racing Integrity Commission [2021] QCAT 184
- Case
- [2021] QCAT 184
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Tribunal was whether Mr Diebert's driving tactics constituted a breach of Rule 149(2) and, if so, what the appropriate penalty should be. The Tribunal considered the evidence provided by Mr Diebert and the video footage of the race in question. The Tribunal also took into account Mr Diebert's previous racing tactics and the trainer's instructions.
The Tribunal found that Mr Diebert's tactics in the race were unreasonable and inconsistent with his previous successful strategies. The Tribunal held that Mr Diebert's decision to maintain the lead despite the horse's exhaustion resulted in the horse becoming non-competitive, which constituted a breach of Rule 149(2). In determining the appropriate penalty, the Tribunal referred to previous penalty decisions and sought to achieve consistency in penalty imposition. The Tribunal concluded that a six-week suspension was appropriate, taking into account the principles of fairness and natural justice.
The Tribunal's final orders included a finding that Mr Diebert had breached Rule 149(2) and imposed a six-week suspension as the penalty.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The respondent submitted that it was unreasonable for Mr Diebert to have made his horse run a 27.3 second first quarter where he refused to relinquish the lead and take cover as per his previous racing wins. Although the horse had won from the lead in the 2016 Black’s a Fake race, he was in his prime then as a six year old as opposed to in 2019 when he was an older horse coming to the end of its career. The manner of his driving was also inconsistent with his tactics in the Sunshine Sprint the week before when he drove the horse with cover for most of the race and sat behind another horse and was able to finish competitively. This had allowed Ohoka Punter to conserve energy for the final stages of the race which he had not been able to do at Albion. The respondent submitted that the evidence of how the horse had been driven previously by Mr Diebert is significant because it demonstrated that Mr Diebert was familiar with the horse and knew how to drive it to win.Consideration I viewed footage of the race a number of times during the hearing. In my view, the footage indicates that Mr Diebert elected to take the lead early and to maintain that lead, irrespective it seems of how tired Ohoka Punter was or whether he could maintain that position to win the race. It appears that the horse was driven so fast for so long that it did tire and completely fell away at the closing stages of the race. Mr Diebert did not have a satisfactory explanation for his tactics. He said that he had not taken a seat behind Uncle Sam because he had not wanted to be put three to the fence but this makes no sense if the alternative was to run his horse to a state of exhaustion. The tactic or strategy employed by Mr Diebert was also entirely inconsistent with the approach he had adopted the week before where the horse had used his early speed to find a forward position but was challenged by Colt Thirty One and relented by taking the position behind that horse which allowed Ohoka Punter to conserve energy for the final stages of the race and finish competitively. I accept Mr Diebert’s evidence during the hearing that he was instructed by the trainer to lead, that “if [he] found the front [he] was to lead the race”. This does not, however, absolve Mr Diebert from his responsibility to drive the horse in an acceptable way. If in driving the horse that way the horse became over exerted to the point where it was non-competitive, then to do so constitutes, in my view, driving in a manner that is blameworthy and, objectively viewed, unacceptable. Accordingly, I find that the contravention of Rule 149(2) is substantiated. In terms of penalty, I am of the view that a six week suspension is appropriate in the circumstances. In Currie v Queensland Racing Integrity Commission[10] the Tribunal said that, as a matter of fairness and natural justice, the Tribunal should strive to achieve the greatest degree of consistency as is possible. Further, that although previous penalty decisions are not binding on the Tribunal, they may be followed by the Tribunal deciding factually similar cases, unless plainly wrong.[11] Having regard to comparable cases helps to ensure that similar principles are applied consistently so, as a matter of systemic fairness, like cases are treated alike and different cases distinguished. [10][2020] QCAT 240, [38] citing Abbott v Racing Queensland [2012] QCAT 230.[11]Queensland Racing Integrity Commission v Vale [2017] QCATA 110, [74] citing Lacey v Attorney-General (Qld) (2011) 242 CLR 573, 596.