Facoory v Queensland Racing

[2009] QCAT 35

CITATION: Facoory v Queensland Racing [2009] QCAT 35

PARTIES:   Paul John Facoory

v

Queensland Racing

APPLICATION NUMBER:            

ATTER TYPE:   General administrative review matters

HEARING DATE:   10 December 2009

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   10 December 2009

DELIVERED AT:   Brisbane

ORDERS MADE:   Stay allowed

CATCHWORDS: Section 22 Queensland Civil and Administrative Tribunal Act – stay of operation of decision – where interests of persons considered.

APPEARANCES and REPRESENTATION (if any):

The application was heard on the papers in the absence of the parties.     

REASONS FOR DECISION

[1]On 10 December 2009 Paul John Facoory lodged an application with the Tribunal seeking under the Queensland Civil and Administrative Tribunal Act 2009 (the Act) a review of a reviewable decision that he described as having been made by Queensland Racing on 8 December 2009 which had resulted in his disqualification as a  trainer for nine months.    

[2]Mr Facoory also lodged an application under section 22 of the Act seeking a stay of the operation of the reviewable decision.

[3]Section 22 of the Act provides, where relevant:

(3) The tribunal may, on application of a party or on its own initiative, make an order staying the operation of a reviewable decision if a proceeding for the review of the decision has started under this Act.

(4) The tribunal may make an order under subsection (3) only if it

considers the order is desirable after having regard to the following:
(a) the interests of any person whose interests may be affected by the making of the order or the order not being made;

(b) any submission made to the tribunal by the decision-maker for the reviewable decision;

(c) the public interest.

[4].Mr Facoory stated in his application that a stay was necessary to assist

in meeting the horse husbandry needs of the horses currently under his care and responsibility.  He submitted that without a stay he would be caused extreme hardship on his business and family.  He needed time to inform the owners of the decision.

[5].He also submitted that there would be severe hardship suffered by the horses that he was currently training in his stable complex.   His employees, an apprenticed jockey who had rides on 11 December 2009 and 12 December 2009 and a stable hand, would be suddenly out of work and will not be able to meet their living expenses. 

[6].In view of the arrangements for Mr Facoory’s apprenticed jockey to ride on 11 December 2009, the Tribunal considered that a decision on the stay should be made on 10 December 2009. Queensland Racing was informed of the application for the stay on the afternoon of 10 December 2009 and informed that any submissions on the stay application should be provided by 4pm that day.  No submissions were received that day and Queensland Racing did not request an extension of time before 4pm that day.    

[7].The Tribunal had regard to the submissions made by Mr Facoory that the interest of his owners, his horses, his employees and his family would be adversely affected in the event that a stay was not granted.  The Tribunal had no information to satisfy the Tribunal that the public interest would be adversely affected in the event that a stay was granted.

[8].The Tribunal was not satisfied that merely granting the stay of the operation of the decision until the hearing of the review had concluded would necessarily undermine the public’s confidence in the racing industry but would rather in most cases lead to greater confidence in the public about the system as a whole, by reinforcing the presence of an  independent review via the Tribunal of decisions made by Queensland Racing.   

[9].The Tribunal was satisfied that in view of the adverse impact that the decision made by Queensland Racing would have on the persons referred to in the submissions made by Mr Facoory, a stay was desirable.