Elkins v Queensland Racing Integrity Commission - [2021] QCAT 161

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Elkins v Queensland Racing Integrity Commission [2021] QCAT 161

PARTIES: MATTHEW ELKINS

(applicant)

v

QUEENSLAND RACING INTEGRITY COMMISSION

(respondent)

APPLICATION NO/S:

OCR241-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

27 April 2021

HEARING DATE:

14 December 2020

HEARD AT:

Brisbane

DECISION OF:

Member Kent

ORDERS:

The decision under review (dated 31 August 2018) is set aside and substituted with a finding of not guilty of the offence of a breach under Australian Harness Racing Rules Rule 149.

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS- whether unacceptable drive by the applicant – consideration of whether conduct blameworthy – whether error of judgment.

Australian Harness Racing Rules R 149

Queensland Civil and Administrative TribunalAct 2009 (Qld) s 20

McMullen v Racing Queensland Ltd [2012] QCAT 286

Mifsud v Racing Victoria Stewards [2007] VRAT 6
Green v Racing Queensland Ltd [2012] QCATA 269

Richardson v Racing Queensland Ltd [2013] QCAT 95

APPEARANCES & REPRESENTATION:

Applicant:

Scott Neaves

Respondent:

Ms Melanie Johnson on behalf of Queensland Racing Integrity Commission

REASONS FOR DECISION

The incident

Mr Elkins was the driver of the horse, Crowning Glory, in race 7 at the Albion Park Harness Racing club (Albion Park) on 6 July 2018. As a result of this drive and a subsequent Stewards’ Inquiry he was convicted of a charge pursuant to Australian Harness Racing Rules (AHR) rule 149(2) and given a penalty of a six week suspension.

The charge and conviction

Mr Elkins was convicted of a breach of rule 149(2) of the AHR.
The particulars of the charge were as follows: the applicant, as driver of Crowning Glory in Race 7 at Albion Park, did drive Crowning Glory in an unacceptable manner, rounding the home turn on the final occasion by driving in a manner that failed to exercise sufficient control on Crowning Glory. This manner of driving was considered by the Stewards to be unacceptable.
The applicant was penalised by way of six weeks’ suspension of his licence to drive harness horses. He sought internal review of this decision and penalty. The decision and penalty were both affirmed. The applicant then sought Tribunal review of the conviction and penalty. The decision of the internal reviewer was stayed by the Tribunal and the matter subsequently heard by the Tribunal on 14 December 2020.

Stewards’ Inquiry

The stewards were critical of Mr Elkins’ drive. Their criticisms can be summarised as follows: from the beginning of the race Crowning Glory was urged forward to the lead; originally the horse remained in that position and travelled well on the inside with no issues in regard to being close up to the marker post; when Crowning Glory and the rest of the field entered the front straight at the 200 metre point it was the stewards’ contention that Mr Elkins permitted Crowning Glory to significantly shift wider on the track; they alleged that this shift enabled another runner to gain an advantage by using 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: [2021] QCAT 161
Decision Date

CaseChat Overview and Summary

Matthew Elkins, the driver of the horse Crowning Glory, was convicted of a breach of Australian Harness Racing Rule 149(2) by the stewards of the Albion Park Harness Racing Club on 6 July 2018. This rule prohibits a driver from driving a horse in a manner that is deemed unacceptable by the stewards. The stewards found that Mr Elkins' driving of Crowning Glory in Race 7 at Albion Park was unacceptable because he failed to exercise sufficient control over the horse, particularly around the home turn. This resulted in a six-week suspension of Mr Elkins' licence to drive harness horses. Mr Elkins sought internal review of the decision, which was affirmed. He then sought review of the decision by the Queensland Civil and Administrative Tribunal (QCAT). The Tribunal's role in reviewing the decision is to produce the correct and preferable decision by way of a fresh hearing on the merits. The Tribunal must apply the test in Mifsud v Racing Victoria Stewards, which requires that for disciplinary action to be taken against a driver, it must be established that the driver was blameworthy in the manner in which the horse was driven in the race in question. This is distinct from a situation where the actions of the driver might be regarded as an error of judgment or a split-second decision resulting in a mistaken choice.

After considering the evidence before it, the Tribunal found that Mr Elkins' driving of Crowning Glory was not blameworthy. The Tribunal accepted Mr Elkins' evidence that Crowning Glory had a tendency to shift out on the home turn and that he had driven the horse in a manner that was consistent with its previous races. The Tribunal found that there was no clear evidence that Mr Elkins was not in control of the horse or that the reins were loose at the time that the stewards alleged was critical. The Tribunal also accepted that Mr Elkins' decision to hold the reins in a high position was a legitimate tactic with that horse, albeit one that did not pay off on the day in question. The Tribunal therefore set aside the decision under review and substituted a finding of not guilty of the offence of a breach of Australian Harness Racing Rules Rule 149.

The Tribunal's decision highlights the importance of objective judgment in determining whether a driver has been blameworthy in the manner in which they have driven their horse. The Tribunal found that the stewards' decision was based on their subjective view of Mr Elkins' driving, which was not supported by the evidence before the Tribunal. The Tribunal also emphasised that the relevant rule is not designed to punish a driver for simply making a mistake, but rather to ensure that the horse is given full opportunity to win or obtain the best possible placing in the field. The Tribunal's decision is a reminder that drivers should be given the benefit of the doubt where there is reasonable doubt about their culpability.

Orders