Fleming v Queensland All Codes Racing Industry Board - [2013] QCAT 393

CITATION:

Fleming v Queensland All Codes Racing Industry Board [2013] QCAT 393

PARTIES:	Kent Fleming (Applicant)
v
Queensland All Codes Racing Industry Board (Respondent)

APPLICATION NUMBER:

OCR138-13

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

30 May 2013

HEARD AT:

Brisbane

DECISION OF:

Mr David Paratz, Member

DELIVERED ON:

30 May 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Application to stay the decision is dismissed.

CATCHWORDS:

STAY - Application for a stay – disqualification of horse trainer – administration of a drug – whether special circumstances exist – whether an arguable case – balance of convenience

Australian Rules of Racing

Jennings v Design and Procure Pty Ltd

[2010] QCATA 36

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Fenton of Counsel, instructed by Bell Miller Solicitors

RESPONDENT:

Ms Freeman of Counsel, instructed by Clayton Utz Solicitors

REASONS FOR DECISION

This is an urgent application by Mr Fleming for the stay of a decision of the Queensland All Codes Racing Industry Board to disqualify him as a trainer for a period of six months.

Mr Fleming is anxious to have a stay imposed so that he can be the trainer of the horse "Lucky Hussler" which is participating in the Queensland Guineas this Saturday 1 June 2013. The race carries a first prize of $220,000, of which the trainer would receive 10 per cent. There is, therefore, a significant potential loss for him if he cannot do so, and the horse wins. Against this, the Board submits that there is a public interest in the sport being rigorously administered.

The disqualification was imposed earlier this week under AR196(5)(ix) of the Australian Rules of Racing. That section provides for a disqualification period of not less than six months for a breach of AR178E unless special circumstances exist. Section AR178E(1) provides that "..no person without the permission of the Stewards may administer any medication to a horse on race day."

It is not disputed that Mr Fleming administered a medication known as Halo to the horse "Karl the Great" on Saturday 4 May 2013 without the permission of the Stewards. There is apparent disagreement as to what happened when the steward, Mr Hackett, discovered blood on the jugular vein of the horse at approximately 8 am on the day of race.

An affidavit of Mr Birch, the Chairman of Stewards, recounts that Mr Hackett reported that Mr Fleming initially denied knowledge of an injection and that it was only after a syringe and materials were located in the tack room, that Mr Fleming admitted that he had injected the horse that morning at 3 am. It appears from submissions made today, that Mr Fleming may contest those assertions upon the hearing of the application to review the decision in this matter.

It has been submitted by Counsel for Mr Fleming that special circumstances exist in this matter because Mr Fleming complied with the provisions of LR117B(a) by pleading guilty at an early stage and assisting the stewards in the investigation of the prosecution of…

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: [2013] QCAT 393
Decision Date: 30 May 2013

CaseChat Overview and Summary

The matter before the court involved a trainer, Fleming, who sought a stay of a decision by the Queensland All Codes Racing Industry Board to disqualify him from the horse racing industry. Fleming's disqualification was due to the administration of a prohibited drug to a horse under his care. The primary legal issue the court had to determine was whether special circumstances existed that would warrant a stay of the disqualification, and whether Fleming had made out an arguable case for such a stay. Additionally, the court had to consider the balance of convenience to decide whether the stay should be granted.

In examining the arguments presented, the court considered the nature and severity of the offence, the likelihood of Fleming proving his case on the merits, and the potential harm that would result from granting or denying the stay. The court concluded that while Fleming had presented some arguments suggesting possible mitigating factors, these did not constitute special circumstances warranting a stay. Furthermore, the court found that the balance of convenience favoured enforcing the disqualification, as the integrity of the horse racing industry was at stake.

Given the above considerations, the court dismissed Fleming's application for a stay of the disqualification. The court determined that there were no special circumstances present, and the balance of convenience did not favour Fleming. Consequently, the disqualification imposed by the Queensland All Codes Racing Industry Board remained in effect. The court’s decision upheld the authority of the Board to enforce disciplinary measures in the interest of maintaining the integrity of the racing industry.

Orders

Orders of the court

1. The Application to stay the decision is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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