Facoory v Queensland Racing Ltd

CITATION: Facoory v Queensland Racing Ltd [2010] QCAT 120

PARTIES:	Paul John FACOORY
v
QUEENSLAND RACING LIMITED

APPLICATION NUMBER:   OCR013-10

MATTER TYPE:	Occupational regulation matters
HEARING DATE:	30 March 2010

HEARD AT:  Brisbane

DECISION OF: Mr Richard Oliver and Mr Brockwell Miller

DELIVERED ON: 15 April 2010

DELIVERED AT:      Brisbane

ORDERS MADE:

1.     The application is allowed.

2.     The applicant’s disqualification of 9 months is set aside.

3.     The applicant is disqualified from holding a trainer’s licence for 4 months.

CATCHWORDS :  Racing Act 2002 – Australian Rules of Racing AR175(h)(ii) – licensed trainer – disqualified - TC02 levels in excess of the threshold.

APPEARANCES and REPRESENTATION:

APPLICANT:	Mr J H Crowther
RESPONDENT:	Mr A J Orchard

REASONS FOR DECISION

1. The appellant was the trainer of 2 thoroughbreds which produced positive swabs to TCO2 (bicarbonate of soda) when the horses were the subject of testing procedures in November 2009.

1. On 5 November 2009, the thoroughbred “Brilliant Ween” raced at Doomben.  That horse was the subject of a pre-race test as also was “Our Man” again in a pre-race test prior to it competing at the Gold Coast Turf Club on 7 November 2009.  Both swabs reflected an elevated reading above the threshold allowed for in the Australian Rules of Racing.  For the purposes of consistency, it should be noted that initially a plea of guilty was entered which, when the matter first came before the QCAT, an issue was raised by the applicant that he had relied upon the evidence of a senior veterinary surgeon and as such was surprised that he could have, in any way, breached the threshold level.  The Tribunal granted a stay of execution of the penalties until the determination of the matter and allowed the “guilty” plea to be set aside and substituted therefore a plea of “not guilty”.

1. The parties, during a mediation of the issues, determined to reduce the issues to writing for determination by this Tribunal.  In that respect, the parties agreed that the following were the issues to be determined:-

A.       ISSUES IN DISPUTE

1.   the nature of the conversation with Dr Martin Lenz, the veterinarian, about TCO2 included:

·date/dates of conversation(s);

·whether Dr Lenz’s conversation should have been relied on by the appellant;

·if there was reliance, what is the effect on guilt and penalty?

2.   the appropriateness of the penalty.

B.       ISSUES IN AGREEMENT

1. That the scientific evidence, including the levels of TCO2 in swabs taken of Brilliant Ween on 5 November 2009; and Our Man on 7 November 2009 are accurate and not in dispute;

1. An admission by Paul Facoory of administering TCO2 to Brilliant Ween and Our Man.”

1. Since those issues were reduced to writing, it was, at the outset of the Review, suggested to the applicant that the question of guilt could not be put in issue.  After some considerable discussion in that respect, the legal advisers for Mr Facoory identified that the matter would proceed solely upon the question of penalty.  A plea of…