Doughty v Racing Queensland Limited - [2012] QCAT 678

CITATION:

Doughty v Racing Queensland Limited [2012] QCAT 678

PARTIES:	Kelly Anne Doughty (Applicant)
v
Racing Queensland Limited (Respondent)

APPLICATION NUMBER:

OCR332-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

5 December 2012

HEARD AT:

Brisbane

DECISION OF:

Kate Buxton, Member
Joanne Browne, Member

DELIVERED ON:

20 December 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

The Respondent’s decision to penalise the Applicant under AR178 by the imposition of $4,000.00 fine is affirmed.

CATCHWORDS:

Racing – where the Applicant presented a horse which provided a positive sample containing the banned substance Isoxsuprine – where horse disqualified under AR177 as a result of the positive test to the prohibited substance – penalty imposed on Applicant trainer under AR178 – where Applicant submitted that the positive sample the result of cross-contamination – whether the Applicant established that she was not blameworthy – whether the imposition of a penalty of a $4,000.00 should be varied or set aside

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mrs Doughty represented by Mr Johnson of Johnsons Solicitors

RESPONDENT:

Racing Queensland Limited represented by Mr Wade Birch

REASONS FOR DECISION

Mrs Doughty has, for many years, trained race horses and is the licensed trainer of the Black Superman. The Black Superman ran first in the QTIS 3 year old maiden handicap 1,100 metre race at the Gold Coast on 11 August 2012. Following the race a sample of urine was taken and tested for analysis. That sample contained the substance Isoxsuprine. Pursuant to AR177, the Black Superman was disqualified from the race due to the presence of the prohibited substance.

Following a Stewards’ Inquiry, Mrs Doughty was penalised under AR178 as a result of the detection of the prohibited substance in a horse which she had trained. The Stewards imposed a $4,000.00 fine. It is against this decision that the Applicant seeks review.

Offence of presenting the horse

Mrs Doughty invites this Tribunal to depart from the findings made by the Stewards at the Inquiry in two key ways:
a)The Stewards ought to have found her without blame and, indeed, ought to have exercised their discretion not to impose a penalty.
b)The presence of the prohibited substance was the result of contamination from, not administering of, the banned substance.
The purpose of this Application is not to determine whether the Stewards fell into error but to reach the correct and preferable decision. In coming to that decision the Tribunal must hear and decide the review by way of a fresh hearing on the merits.[1]
[1] QCAT Act, section 20.

Mrs Doughty has not been charged with the offence of administering a prohibited substance. Instead, she has been charged with a presenting offence. AR178 provides:
‘When any horse that has been brought to a race course for the purpose of engaging in a race and a prohibited substance is detected in any sample take from it prior to or following its running in any race, the trainer and any other person who is in charge of such horse at any relevant…

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: [2012] QCAT 678
Decision Date

CaseChat Overview and Summary

Kelly Anne Doughty, a horse trainer, sought review of a decision by Racing Queensland Limited (the Respondent) to impose a $4,000.00 fine under AR178 for presenting a horse that provided a positive sample containing the banned substance Isoxsuprine. The horse, Black Superman, was disqualified under AR177 due to the presence of the prohibited substance. Mrs Doughty argued that the positive sample resulted from cross-contamination, not the administration of the banned substance, and that she was not blameworthy. The Queensland Civil and Administrative Tribunal (QCAT) was required to determine whether the Respondent's decision to penalise Mrs Doughty should be affirmed, varied, or set aside.

The Tribunal considered whether the Stewards correctly exercised their discretion in imposing a penalty on Mrs Doughty. It noted that AR178 is permissive, allowing for a penalty to be applied if a prohibited substance is detected in a sample taken from a horse. The Tribunal concluded that even if the Stewards failed to exercise a discretion, it would not impact the Tribunal's function in reaching its own decision. The Tribunal found that Mrs Doughty was not blameless, as her duty as a trainer was to ensure a horse was presented drug-free, and she failed to take measures that could have prevented contamination. The Tribunal determined that a penalty was appropriate and considered the mitigating and aggravating factors in determining an appropriate penalty.

The Tribunal affirmed the Stewards' decision to impose a $4,000.00 fine under AR178. It found that a fine was the appropriate penalty, taking into account the mitigating factors such as Mrs Doughty's unblemished record over fifteen years, her family business, and the fact that this was her first breach. The Tribunal also considered the need for general and specific deterrence. The Tribunal concluded that the Stewards' decision was appropriate and consistent with comparable penalties in similar cases.

ORDERS MADE: The Tribunal affirmed the Respondent’s decision to penalise the Applicant under AR178 by the imposition of $4,000.00 fine.

Orders