Fuller v Racing Queensland Limited
[2011] QCAT 685
•16 September 2011
| CITATION: | Fuller v Racing Queensland Limited [2011] QCAT 685 |
| PARTIES: | Miss Tricia Fuller |
| v | |
| Racing Queensland Limited |
| APPLICATION NUMBER: | OCR131-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Member |
| DELIVERED ON: | 16 September 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The decision of Racing Queensland made on 24 June 2011 to impose a penalty of 4 months’ disqualification is set aside and in lieu thereof a penalty of 4 month’s suspension be imposed. |
| CATCHWORDS: | RACING – APPEAL ON PENALTY – where dog tested positive to hydroxyl stanazol – where hydroxyl stanazol prescribed as part of treatment regime – where veterinarian advice that hydroxyl stanazol should have been eliminated from the dog’s system by the time dog was presented – where Racing Queensland changed policy in relation to penalty – whether change of policy referred to in article – whether sufficient notice of change of policy – whether grounds for change of policy – whether penalty imposed for a breach of Greyhound Racing Rule 83(2)(d) is excessive Greyhound Racing Rule 83(2)(d) Wiggins v Racing Queensland Limited [2011] QCAT 370 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Star Bomber is owned and trained by Miss Fuller. It won Race 8 at Albion Park on 27 April 2011. As a matter of course, Star Bomber’s urine was tested. It returned a positive result for hydroxyl stanazol, which is a prohibited substance. Miss Fuller was found guilty of an offence under Greyhound Racing Rule 83(2)(d) and disqualified from racing for four months.
Miss Fuller has appealed the severity of the penalty on these grounds:
a)Similar offences in Queensland have attracted a suspension, rather than a disqualification.
b)The positive swab was a result of veterinary treatment.
c)Disqualification places an unnecessary burden on Miss Fuller.
Racing Queensland has supplied a schedule of previous penalties for a person found guilty of presenting a dog with hydroxyl stanazol. The maximum penalty in Queensland was a six month suspension and $750 fine handed to J Quarman in 2009.
The penalties in New South Wales have been more severe, usually resulting in a disqualification of six months. In their reasons for decision, the Stewards said this about penalty[1]:
We were mindful of the penalties in New South Wales which in most circumstances have been periods of disqualification. We are also mindful that in Queensland, since Racing Queensland has taken control of the greyhound racing industry, a notice was placed in the magazine in relation to the matter of penalties and that it was considered in some aspects there that the penalties were not serving as a deterrent. Accordingly, the penalties should be reviewed.
We feel in the circumstances, in the normal scheme of things, that a disqualification period as such set out by New South Wales of six months would be somewhere the benchmark for stanazol.
[1] Transcript page 36, lines 27-36.
There is no evidence that the Stewards have undertaken any analysis of whether or not the penalties in Queensland were acting as a deterrent. Given that there have been only six offences since 2008, and three of those occurred in 2008, it seems unlikely that such an analysis would support the Stewards’ contentions.
There is no evidence that the industry undertook a review of the penalties in Queensland. If it did so, there is no evidence that Racing Queensland called for submissions from the industry or, indeed, canvassed the views of any person who might be in a position to give informed, technical advice.
There is no evidence that there has been a proper comparison of the penalty regimes of New South Wales, Victoria and Queensland. There is no information about why the penalty in Victoria was significantly higher. There is no evidence that anyone gave any consideration to whether the absence of any offences after 2009 in New South Wales or 2008 in Victoria could be related to the severity of the sentences handed down in those jurisdictions.
The stewards do not explain why the New South Wales penalty regime should be the benchmark. Accordingly, I am not satisfied that the Stewards had any valid reason to depart from the range of penalties that previously applied in Queensland.
Even if I accepted that there was a valid and considered change of policy concerning the penalties to be imposed, natural justice and procedural fairness requires that change of policy to be communicated to the industry prior to its adoption. As the tribunal observed in Wiggins v Racing Queensland Limited[2] mere publication of an article in the racing magazine may not be enough.
[2] [2011] QCAT 370.
[10] The only article that has been brought to my attention is dated 20 July 2011 – after Star Bomber raced[3]. It does not refer to hydroxyl stanazol and it does not warn of Racing Queensland’s proposal to introduce a policy to increase penalties for those found guilty.
[3] Attachment 9 to Miss Fuller’s material.
[11] I find that the Stewards erred in adopting the New South Wales penalty regime without a proper analysis of the need for increased penalties and the appropriateness of such a substantial increase. Miss Fuller’s breach should be considered with reference to penalties previously imposed in Queensland.
[12] Miss Fuller gave uncontested evidence that:
a)Star Bomber was under the care of a veterinarian.
b)He had administered hydroxyl stanazol as part of a treatment regime.
c)He advised Miss Fuller that Star Bomber should not race for 6 to 8 weeks after the last treatment, to make sure that hydroxyl stanazol had left the dog’s system.
d)Miss Fuller, in fact, waited 74 days – 10½ weeks – before starting Star Bomber[4].
[4] Transcript page 17, lines 1-13.
[13] Dr Beh, the veterinarian who administered the hydroxyl stanazol to Star Bomber, also gave evidence. He has been a veterinarian to the industry for 40 years. He told the Stewards that he takes a conservative approach to such matters[5] and that he thought hydroxyl stanazol would have been eliminated by the time Star Bomber presented in April. Dr Beh also observed that Queensland owners cannot seek an independent swab from any laboratory in Queensland so that they can verify that a prohibited substance has been eliminated. Perhaps this explains the more severe penalty regime in other States where that service is available.
[5] Transcript page 17, lines 30-31.
[14] This is not the case of a careless or negligent owner, nor is there any evidence of a deliberate decision to flout the requirements to present a dog free from a prohibited substance. In fact, Miss Fuller took professional advice, followed it and only presented the dog when, to the best of her knowledge, he would be free from hydroxyl stanazol.
[15] I have not been provided with any information about the circumstances that resulted in each of the Queensland penalties. I note, however, that the Stewards took Miss Fuller’s explanation into account and did not consider that a penalty at the top of the range was appropriate. I agree. If the top of the range of penalties in Queensland is six months suspension, Miss Fuller’s penalty of four months disqualification should be set aside and a penalty of four months suspension substituted.