Fletcher v Racing Queensland Limited
[2013] QCAT 129
•4 March 2013
| CITATION: | Fletcher v Racing Queensland Limited [2013] QCAT 129 |
| PARTIES: | Mark Raymond Fletcher (Applicant/Appellant) |
| v | |
| Racing Queensland Limited (Respondent) |
| APPLICATION NUMBER: | REO012-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | Heard on the Papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr R F King-Scott, Member |
| DELIVERED ON: | 4 March 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application refused. |
CATCHWORDS: | Application to reopen – no new evidence and reopening ground established |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Introduction
On 20 July 2012, I allowed the Applicant’s appeal to set aside the penalty of the Stewards of disqualification for 3 years, and in lieu thereof, I imposed a penalty of 12 months suspension of the Applicant’s licence as a trainer and driver.
In doing so, I commented in respect of the 3 years disqualification that its effect was that the Applicant not only would lose his livelihood if disqualified, but also his home as he resided and worked as a night watchman at a race track.
In imposing a period of suspension, I took account of the Applicant’s submission in the alternative that:
A suspension of the Applicant’s licence to train and drive could be imposed. Thus allowing continuation of employment under the guiding hand of Mr Seymour, but discontinuing the Applicant’s capacity to train or drive in his own right.
The Respondent, in its extensive written submissions, did not comment upon this alternative penalty.
What has transpired since the decision was made is that the Applicant has been prevented from working as a stablehand as he does not have a Stablehand’s Licence. It is alleged he was invited to apply for one, and when he did so, his application was rejected on the grounds that he was currently under suspension.
The Applicant seeks to reopen the proceedings to allow the Tribunal to correct the error, if indeed an error has occurred. Section 137 of the Queensland Civil and Administrative Tribunal Act 2009 sets out the grounds upon which a proceeding can be reopened. The only relevant ground is that “… the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.”
The Applicant’s lawyers freely acknowledged their mistake in the written submissions, but make the observation that the Respondent, if it was aware at the time of the Applicant’s mistaken view of the effect of a suspension order, made no attempt to correct it or bring it to the Tribunal’s attention.
The Respondent says that the Applicant, in its original submission, made no mention of the Applicant being allowed to remain a stable hand, but rather referred to the Applicant’s written submissions to the effect that a suspension would allow a continuation of employment under the guiding hand of Mr Seymour, but discontinuing the Applicant’s capacity to train or drive in his own right.
It seems to me that the only way that submission could be interpreted was that the Applicant would be working in the stables in some capacity. However, I note that as a Licensed Stablehand the Applicant, inter alia, would be licensed to drive track work.
The Respondent submits that the Applicant’s opportunity to earn a livelihood has not been deprived, as he is able to continue his role as the night watchman at the race track and seek further employment in the racing industry without being a licensed individual. My understanding was that the Applicant did not derive any significant income as a night watchman, but rather received the benefit of a residence. Nevertheless, it is suggested he can seek further employment in the racing industry but not as a licensed individual.
The Respondent further submits that allowing him to be a licensed stable hand would cast suspicion on the integrity of the training operation at the trainer’s stable, and that the Applicant would be going about similar duties as he was prior to his suspension without serving any actual penalty. If in carrying out duties as a stable hand allowed him to be a de facto trainer then I can see some merit in that submission.
The Respondent says further that the Applicant could have appealed the refusal to grant him a Stablehand’s Licence, but failed to do so.
It is unfortunate that though the application to re-open was filed on 8 August 2012, it did not reach my desk until 1 March 2013. The reasons for the delay are not clear to me, but it appears that the file went missing for some time.
In my opinion, the erroneous submissions on the Applicant’s behalf suggesting alternative penalties does not amount to new evidence. The evidence was available at the time of hearing. The Applicant has not established a reopening ground as defined in section 137.
I am of the view that, the order of the Tribunal should remain, and I refuse the Applicant’s application.
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