El-Issa v Racing Queensland Limited - [2011] QCATA 280

CITATION:

El-Issa v Racing Queensland Limited [2011] QCATA 280

PARTIES:	Mr Bobby El-Issa (Appellant)
v
Racing Queensland Limited (Respondent)

APPLICATION NUMBER: APL206 -11

MATTER TYPE:

Appeals

HEARING DATE: 31 August 2011

HEARD AT: Brisbane

DECISION OF:

Justice Alan Wilson, President
Peta Stilgoe, Member

DELIVERED ON: 9 September 2011

DELIVERED AT: Brisbane

ORDERS MADE: 1. Leave to appeal granted.

2. Appeal dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – RACING – APPEAL AGAINST PENALTY – where the applicant was charged with breaches of rr 135(a) and (b) and 137(a) of the Australian Rules of Racing (AAR), found guilty and disqualified from riding for a period of two years – where the applicant appealed the Stewards’ decision to the QCAT – where the Tribunal confirmed the Stewards’ findings in relation to AAR 135(a) but set aside the Stewards’ decision in relation to AAR 137(a) – where the applicant seeks to appeal that decision – whether Reasons for decision sufficient – moral turpitude – whether discretion properly exercised – whether Members incorrectly considered allegation of moral turpitude – whether leave to appeal should be granted – whether grounds for appeal

Australian Rules of Racing, rr 135(a), 135(b), 137(a)
Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(b)

Coroneos v Medical Board of Queensland [2002] QCA 347, cited
Dinsdale v R (2000) 202 CLR 321, cited
El-Issa v Racing Queensland Limited [2011] QCAT 230, cited
Justice v South Australian Trotting Control Board & Ors (1989) 50 SASR 613, cited

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	A J H Morris QC with S Di Carlo
RESPONDENT:	J Murdoch SC

REASONS FOR DECISION

The President

In this matter the Appeal Tribunal consisted of Ms Stilgoe, QCAT Member and me. I have had the benefit of reading her Reasons in draft. I agree with her conclusions, and the order she proposes.

The learned QCAT Members who reviewed the original decision took pains to distinguish between the charges brought against Mr El-Issa under different rules of racing. In particular, they decided not to ‘explore the association’ alleged by the Stewards to exist between him and a well-known punter, and forming the particulars of the charge under Australian Rules of Racing (ARR), r 137.

But they went further: at [54] of their Reasons of 3 June 2011 they made the specific finding that even if that association existed, it would not support the charge under that rule. It is plain, from the passage in which this finding is made, that they were at pains not to let any inference arising from that charge, or any evidence related to it, affect the exercise of their discretion when they came to decide the appropriate penalty under ARR 135(a).

When they came to discuss penalty at the end of the Reasons, at [62]-[71], they cited a passage from the Stewards’ decision but in a context which, again, makes it clear they were not allowing themselves to be influenced by any evidence or anything related to the…

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: [2011] QCATA 280
Decision Date: 9 September 2011

CaseChat Overview and Summary

In the matter of El-Issa v Racing Queensland Limited, the applicant, a licensed jockey, was found guilty by the Stewards of breaches of rules 135(a) and (b), and 137(a) of the Australian Rules of Racing (AAR). The breaches related to the applicant's conduct during a race and his subsequent statements made to the Stewards. Following the Stewards' decision, the applicant appealed to the Queensland Civil and Administrative Tribunal (QCAT), which upheld the findings in relation to rule 135(a) but set aside the decision in relation to rule 137(a). The applicant now seeks leave to appeal to the Queensland Court of Appeal against the QCAT's decision.

The primary legal issues before the court were whether the QCAT's reasons for decision were sufficient, whether the QCAT properly exercised its discretion in setting aside the Stewards' decision regarding rule 137(a), and whether the QCAT Members incorrectly considered the allegation of moral turpitude. The court needed to determine if the applicant's grounds for appeal were valid and if leave to appeal should be granted.

The court considered the arguments and submissions from both parties. It found that the QCAT's reasons for decision were sufficient, as they adequately addressed the issues and provided a clear rationale for the Tribunal's conclusions. The court also determined that the QCAT had properly exercised its discretion in setting aside the Stewards' decision in relation to rule 137(a) and that the QCAT Members did not incorrectly consider the allegation of moral turpitude. Consequently, the court found that the applicant's grounds for appeal were not established, and leave to appeal was denied.

The final orders of the court were that the application for leave to appeal was dismissed, and the applicant was to bear the costs of the application.

Orders