Hansen v Racing Queensland Limited (No 2)

[2011] QCAT 610

CITATION: Hansen v Racing Queensland Limited (No 2) [2011] QCAT 610

PARTIES:	Mr Darryl John Hansen
v
Racing Queensland Limited

APPLICATION NUMBER:   OCR177-11  

MATTER TYPE: Occupational regulation matters

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Brockwell Miller, Member
James Allen, Member

DELIVERED ON: 30 November 2011

DELIVERED AT:      Brisbane

ORDERS MADE: 1.  That the Stewards’ decision that Mr Hansen be disqualified for six months be confirmed.

CATCHWORDS: Racing – where applicant found to have prohibited substance in excess of threshold on analysis – where financial position will be of significant issue – whether penalty should be reduced in such circumstances

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 Act2009 (QCAT Act).

REASONS FOR DECISION

1. Darryl Hansen has been convicted of a breach of AR178 in that he presented a horse to race while it had in its system a prohibited substance above a threshold level.  The Stewards imposed a penalty of six months disqualification and against that period of disqualification, the Applicant has sought this Tribunal to intervene and review the penalty. 

1. The facts and circumstances leading to the conviction of the Applicant are canvassed in the Reasons published by this Tribunal previously.  The Applicant has expressed the view that disqualification of his licence for a period of six months is, in all the circumstances, unreasonable and excessive.  The parties have agreed to the issue of penalty being determined on the papers and both the Applicant and the Respondent have provided submissions on penalty. 

1. The Applicant has referred in particular to the content of an Affidavit of Debbie-Rose Hansen who is his wife but who is together with the Applicant, responsible for the finances and management of the business of the trainer’s operation.  The Affidavit has identified average weekly expenses incurred by him to be $13,477.15 and has noted that, if the period of disqualification is to stand, it will have a significant effect upon both full-time and part-time employees to which reference is made in the Affidavit.  Furthermore, it has been identified that the Applicant is committed to a lease of stabling facilities at Corbould Park, the rent for which is noted at $7,800.00 per calendar month plus GST. 

1. The Applicant has confirmed that the failure of this Tribunal to interfere with the disqualification period would be ruinous and in all probability may result in significant financial detriment being occasioned to the Applicant and to his family from which he may never recover.  This is certainly something that must be taken into account by the Tribunal upon its review but in doing so, the Tribunal must have recourse to the offence that has been committed and the need to ensure that the penalty imposed is adequate but that at the same time it acts as a deterrent to other members of the racing fraternity from breaching the rules of racing in similar circumstances.

1. The Respondent of course has, in its submissions, referred to the Applicant’s previous breaches and in particular to two breaches of AR178, the first on 8 May 2007 and the more recent and second on 15 January 2010.  It should here be noted that whilst those breaches relate to Rule 178 of the Australian Rules of Racing, neither offence was reflective of the substance TCO2 or Total Carbon Dioxide. 

1. The question for this Tribunal is whether the penalty is appropriate and reasonable in all the circumstances.  The Tribunal has considered all of the submissions made by the parties and, whilst it is mindful of the financial implications that may affect the trainer/applicant it must also be aware of the implications of allowing thoroughbreds to be presented to race in circumstances where there has been administered to them substances that will have an affect upon their performance.  It is an over-riding concern of the racing industry and the Stewards that are appointed to police the regulatory issues of that industry that thoroughbreds be presented to race drug free.  The Rule against which the Applicant has offended is a strict liability Rule.  It does not identify that the Applicant administered or caused to have administered to the horse the drug in question.  The offence is that it was presented to the racecourse to participate whilst not drug free.  In all the circumstances that is an imperative for the future wellbeing of the industry as a whole.

1. This Tribunal is also mindful that any penalty imposed should be capable of enforcing in the minds of the members of the public and those of the racing fraternity that breaches of the Rules of Racing will not be countenanced.  It is a matter of which the Stewards have been careful to identify that penalties imposed are to act as a deterrent in the hope that the participants in the racing industry will take extreme care to comply with the concept of drug free racing.

1. The Tribunal has, as indicated above, considered the financial implications but is satisfied that the penalty of six months disqualification is an appropriate penalty to be imposed for a breach of this Rule particularly in respect to the use of this drug.

1. The review against penalty is dismissed.

[10]  The Tribunal accepts the representation by the solicitors for the Applicant that the Applicant should be given at least seven days to be able to disperse the horses under his control because he has a significant team of horses and to facilitate his being able to complete the process in a sensible and reasonable manner that period of time is granted.