Hooper v Racing Queensland
[2012] QCAT 346
| CITATION: | Hooper v Racing Queensland [2012] QCAT 346 |
| PARTIES: | Darren Hooper (Applicant) |
| v | |
| Racing Queensland (Respondent) |
| APPLICATION NUMBER: | OCR170-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 15 June 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | R King-Scott, Presiding Member K Buxton, Member |
| DELIVERED ON: | 10 August 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Stewards of 16 May 2012 is affirmed. |
| CATCHWORDS: | RACING – AHR 243 and 247 – Whether, when attending before control body the Applicant’s conduct was intimidatory – Penalty – relevant antecedents |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Hooper was represented by Mr Farrell of counsel instructed by Gabriel Ruddy and Garrett |
| RESPONDENT: | Racing Queensland was represented by Mr Wade Birch |
REASONS FOR DECISION
Mr Hooper is a 40 year old Trainer and Driver with a harness racing licence. He was the subject of a Stewards Inquiry which took place on 16 May 2012 at Deagon into and incident which took place on 5 May 2012 at the Redcliffe Harness Racing meeting. He seeks review of the Steward's decision to disqualify him for two charges under the Australian Harness Racing Rules.
Mr Hooper pleaded guilty to the first charge under AHR 243, which provides:
A person employed, engaged or participating in the harness racing industry shall not behave in a way which is prejudicial or detrimental to the industry.
The particulars of that charge were that Mr Hooper used obscene language in the public areas of the track following the withdrawal of a horse trained by him called Teddy's Girl.
He was disqualified for a period of four months for that offence.
The second decision under review is the decision to find Hooper guilty, under AHR 247, an offence to which he had pleaded not guilty. That rule provides:
A person when attending before the controlling body, its members or employees, the stewards, officials or at any proceeding under these rules shall not speak or behave in a malicious intimidatory or otherwise improper manner.
The Stewards found that he conducted himself in an intimidatory manner towards the Steward in charge, Ms Kwan Wolsey, whilst in attendance at the Stewards Room. He was disqualified for a period of three months to be served concurrently with the other penalty. He was also fined $500 which was the suspended portion of a fine from a previous incident at Redcliffe on 4 April 2012.
The purpose of this application for review is for this Tribunal to reach the correct and preferable decision. In doing so, it must hear and decide the review by way of a fresh hearing on the merits.[1]
[1] QCAT Act, s 20.
Mr Hooper submitted that the findings made by the Stewards, both in relation to the offence under AHR 247, and the penalties imposed for both offences, did not take into account the available evidence and were not properly available on that evidence.
Evidence of the offence – AHR 247
The particulars of the offence were:
“That whilst attending before the Steward K Wolsey in the stewards room following the scratching of Teddy’s Girl you have conducted yourself in an intimidatory manner by the way that you presented yourself by the shouting that you used and by slamming the door.”
Counsel for the applicant initially submitted that the particulars should be read as though limited to conduct relating to shouting and slamming the door. He went on to submit that that conduct could not in itself amount to an intimidatory or otherwise improper manner. However, towards the conclusion of the hearing he conceded that the particulars included three specific allegations of intimidatory or improper manner:
1.The way that Mr Hooper presented himself;
2.The shouting that he used; and
3.By slamming the door.
It is the view of this Tribunal that all of the conduct undertaken in the stewards room (being the “way that he presented himself”) can therefore be considered in determining whether there is evidence to substantiate the particulars and whether that evidence gives rise to a conclusion that the applicant has offended AHR247.
The statement of Ms Wolsey was referred to by both parties in submissions and during the course of the hearing. Her recollection of events at the Redcliffe Paceway on 5 May 2012 is to the effect that:[2]
§Mr Hooper was very agitated;
§Mr Hooper was extremely angered that his horse had been scratched;
§During the whole time Mr Hooper was extremely heated and aggressive;
§She and Mr Hooper were face to face, within arms length of each other;
§There was a point where he got so frustrated and livid, he was the most angry person she had ever seen;
§She thought she was either going to be struck or grabbed by Mr Hooper when he raised his right arm;
§He subsequently exited the room and slammed the door extremely hard.
[2] Page 45 line 10 to page 46 line 11.
The stewards determined not to proceed with Ms Wolsey’s allegation that the applicant raised his right hand to her. This allegation is absent from the particulars.
The applicant was heard to be swearing immediately after this incident and in the vicinity of others at the race track the evidence produces conjecture as to whether or not the swearing was directed at, or was about, Ms Wolsey. In any event, the swearing constituted a separate charge under AHRR243 in relation to which the applicant has already pleaded guilty. In the applicant’s written submissions he concedes that he was upset that his horse had been scratched and believed, when attending at the stewards room on the relevant day, that the scratching was unnecessary and had occurred contrary to the veterinarian’s advice and without a detailed examination by him. The applicant admits loudly arguing against the scratching of the horse. He asserts that challenge involved him raising his voice but he did not swear at Ms Wolsey nor make any verbal threat against her.[3]
[3] Applicant’s submissions para 33.
The conviction – AHR 247
The question for this Tribunal is whether the evidence substantiates a breach of rule 247 as particularised by the stewards. That Rule prohibits a person attending before the controlling body (including stewards) from speaking or behaving in a malicious, intimidatory or otherwise improper manner. The particulars identify the fact that an allegation that the conduct was intimidatory in its nature.
The function of this Tribunal is to determine, following a fresh hearing on the merits, the correct and preferable decision.[4] The Tribunal may confirm or amend the decision, set it aside and substitute its own decision, or set it aside and return the matter for reconsideration by the decision maker.[5]
[4] Section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
[5] QCAT Act, s 24(1).
We accept that the evidence demonstrates that Mr Hooper was especially angry. He directed his anger towards the representative of the controlling body, Ms Wolsey, on the day in question. He did not hesitate in putting his position in an aggressive, argumentative and angry way, and this behaviour was followed by an exit and a slamming of the door. Put together, this conduct amounts to intimidatory conduct in that it was designed to intimidate, scare and undermine the steward. The applicant submitted that the proper definition of intimidate is to “frighten, especially in order to influence conduct”.
This Tribunal is satisfied that the only purpose for this aggressive discourse was to influence Ms Wolsey’s conduct or views as to the scratching of Teddy’s Girl on the day. Therefore, the conduct amounts to conduct which is intimidatory and falls within AHRR247. It is appropriate to affirm the decision of the respondent, Racing Queensland Ltd, that the applicant was guilty of the charge as particularised.
Penalty – AHR 243 and 247
Review is sought in relation to the penalties applied by the stewards both in relation to the guilty plea under AHR 243, being a disqualification for four months and the penalty imposed for a breach of AHR 247 being a disqualification for three months. Racing Queensland had determined both penalties were ordered to be served concurrently.
The applicant has submitted that the penalty ordered in each case was excessive. The Tribunal has taken into account the written submissions by both the applicant and the respondent on the issue of penalty, including the comparative decisions to which the Tribunal was referred. Those comparative decisions are informative, particularly in circumstances where this Tribunal is obliged, where possible, to treat like cases alike. However, no two cases are identical.
Here, Racing Queensland submitted that Mr Hooper’s antecedents were highly relevant to the appropriate penalty. At the time of these charges he was serving a good behaviour bond for previous disciplinary infractions. Mr Hooper has a history of outbursts and aggression at the track which have attracted the stewards’ attention in the past. He has been fined for these, yet he continues to allow his temper to flare.
This Tribunal takes the view that a period of disqualification is now appropriate.
Periods of disqualification of three and four months respectively to be served concurrently properly reflect the seriousness of the charges and the relevant antecedents. The decision of the stewards in this regard is affirmed.
Conclusions
We therefore affirm the Stewards’ decision in relation to the offence and find that disqualifications are the correct and preferable penalty.
2
0
0