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

1. 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.

1. 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. 

1. 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."

1. 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. 

1. 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.

1. 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 a breach.  Counsel for the Board has contended that special circumstances do not exist, and has made reference to statements of belief of Mr Birch as to the meaning of the relevant provision. 

1. A question of law does arise as to the proper interpretation of LR117B(a), as to what constitutes special circumstances, which may be ventilated and determined upon hearing of the review application.  This application turns upon the considerations required for a stay, and it is not necessary for me to determine that question of interpretation. 

1. Even if special circumstances are held to exist, the question would remain as to what penalty would apply.  The necessary elements of a stay application are whether the applicant has an arguable case and whether the balance of convenience favours the grant of the stay.[1] 

   [1]        Jennings v Design and Procure Pty Ltd [2010] QCATA 36, paragraph 4 per Kingham J.

1. Counsel for Mr Fleming has submitted that an appropriate penalty would be a fine with no period of disqualification.  Counsel for the Board has submitted that having regard to Mr Fleming's two previous offences in Australia relating to medication matters, which each resulted in a period of disqualification, and a previous offence in New Zealand, that it is unrealistic to expect anything less than a period of disqualification. 

1. I accept that it is unrealistic to expect that a period of disqualification of some length would not be imposed in regards to this matter, having regard to Mr Fleming’s prior history.  Accordingly, I do not consider that Mr Fleming has an arguable case that no period of disqualification would apply. 

1. Whilst there is obvious significant potential loss to Mr Fleming, there is also a significant potential harm to the public confidence in the industry if a person was allowed to participate where it is most strongly arguable that a period of disqualification is appropriate and required. I consider that the balance of convenience does not lie with Mr Fleming in the face of the contravening significant public interest. 

1. I therefore find that the essential elements required for a stay, of an arguable case and the balance of convenience, are not made out, and I dismiss the application for a stay.