Hansen v Racing Queensland Limited

[2011] QCAT 609

CITATION: Hansen v Racing Queensland Limited [2011] QCAT 609

PARTIES:	Mr Darryl John Hansen
v
Racing Queensland Limited

APPLICATION NUMBER:   OCR191-11  

MATTER TYPE: Occupational regulation matters

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Brockwell Miller, Presiding Member
Jim Allen, Member

DELIVERED ON: 29 November 2011

DELIVERED AT:      Brisbane

ORDERS MADE: 1.    That the Stewards’ decision that Mr Hansen be fined $10,000.00 be changed to a fine of $6,000.00.

CATCHWORDS: Racing – where prohibited substance found in breach of Rule 178 – where fine imposed was significant – where penalty imposed required further consideration – where penalty reduced from $10,000.00 to $6,000.00

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

1. Darryl Hansen was the trainer of the thoroughbred Essington which competed at the Rockhampton Jockey Club on 23 June 2011 and which, after racing was tested and was shown to have in its urine sample the presence of the drug Prednisone.  At a Stewards’ Inquiry the trainer was found guilty of a breach of Rule 178 of the Australian Rules of Racing and was penalised $10,000.00 by way of monetary fine.

1. The Applicant has asked this Tribunal to review the issue of the penalty after this Tribunal had found that the conviction itself should stand.  The parties to the Application have made written submissions to the Tribunal and have asked that a determination as to penalty be made on the papers.

1. The Applicant’s horse was the winner of the race in question but it is uncertain from the transcript of evidence taken at the Stewards’ Inquiry whether the penalty of $10,000.00 that was imposed was in any way commensurate with the value of the race that was won.  This Tribunal must therefore identify whether there was any basis for the imposition of a fine and, if it so concludes and determines, what that fine should be.

1. The submissions of the parties identify that the range of penalties previously imposed by Stewards for the drug Prednisone has been from $3,000.00 to $6,000.00.  The Applicant has confirmed and there is no evidence provided to the contrary by the other party, that the most recent decision was that in April 2009 where a penalty of $4,000.00 was imposed and it is the Applicant’s view that the penalty should be only in the range of $3,000.00 or $4,000.00.

1. The Applicant certainly has not previously been convicted of an offence involving the drug Prednisone.  The Applicant is of the opinion that the Stewards erred in taking into account a positive test in respect to a horse Hussonator which is more particularly dealt with by this Tribunal and the Stewards in matter OCR177-11.  At the time of imposition of the penalty of $10,000.00 the Stewards, it is alleged, took into account that positive finding and subsequent charge.  The Applicant of course suggests that the Stewards ought not to have looked at that matter and should have considered this particular charge on its own merits and imposed a penalty without reference whatsoever to the charge involving the horse Hussonator.  That is a proper submission in the opinion of this Tribunal.

1. The Respondent of course denies that the Stewards in any way were influenced by the other matter.  In submissions by the Respondent it is apparent that the Applicant has had two prior convictions for a breach of AR178 and in paragraph 4 of the submissions on penalty it is noted that the Applicant was fined $4,000.00 and $6,000.00 respectively in respect to those charges with the second offence, on appeal, being reduced to $4,000.00 as well.

1. It is suggested that the Stewards took into account the two charges and as a result felt obliged to impose a more significant penalty and identified that $10,000.00 was in the circumstances appropriate.

1. With respect this Tribunal cannot find any reason why such a significant penalty as $10,000.00 would have been reasonable.  There is no doubt that the Applicant had breached the Rule on two previous occasions but on the second occasion he had successfully appealed the severity of the penalty.  The Stewards should therefore have taken that fact into account when making a determination as to a penalty.

1. It is an extremely difficult exercise for a Tribunal to arbitrarily identify a figure that would be relevant.  This Tribunal has considered the material and the representations by the parties.  It is not convinced that a $10,000.00 fine is appropriate.  It accepts that there should be a loading imposed because of the more recent nature of the dating of the last offence.  The fact that the offence in question does not relate specifically to the same drug is not, in the opinion of this Tribunal, something that is relevant.  If the drug had been the same on each of the three occasions that the trainer has now breached Rule 178 then perhaps a high penalty of the order of $10,000.00 or a disqualification would have been appropriate.  In all of the circumstances, the Tribunal believe that the penalty is too high.  In the opinion of the Tribunal the penalty that should have been imposed is that of $6,000.00 and the review is therefore allowed and the penalty of $6,000.00 is substituted as the fine that should be imposed.