Hooper v Racing Queensland Ltd
[2012] QCATA 226
•14 November 2012
| CITATION: | Hooper v Racing Queensland Ltd [2012] QCATA 226 |
| PARTIES: | Darren Hooper (Applicant/Appellant) |
| v | |
| Racing Queensland Ltd (Respondent) |
| APPLICATION NUMBER: | APL274-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Jeremy Gordon, Member |
| DELIVERED ON: | 14 November 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Appeal dismissed. |
| CATCHWORDS: | RACING APPEAL AGAINST FINDING AND PENALTY – Australian Harness Racing Rules – breaches of Rule 243 (prejudicial or detrimental behaviour) and 247 (intimidatory behaviour before stewards) – disqualification – whether findings correct – whether reasons sufficient – whether penalty excessive Australian Harness Racing Rules, rules 243, 247 Meller v Low [2000] NSWSC 75 |
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
Richard Oliver, Senior Member
I have had the benefit of reading the reasons of Mr Gordon in draft. I agree with his reasons and his conclusions, and the order he proposes.
Jeremy Gordon, Member
On 5 May 2012 TEDDY’S GIRL, a horse trained by Mr Hooper, was withdrawn by the stewards from a harness race at Redcliffe Harness Racing Club. This was on the advice of a veterinary surgeon following a collision between the horse and another horse earlier that day.
Mr Hooper was very unhappy with this decision, and immediately he went to the stewards’ room at the Racing Club where he confronted Ms Kwan Wolsey, the officiating steward. He berated her to such an extent that he ended up being charged with an offence under rule 247 of the Harness Racing Rules. That rule reads:
A person 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.
As Mr Hooper returned to the stables and in the stabling area he was heard to shout swear words and possibly an offensive comment referring to Ms Wolsey. This resulted in a charge for an offence under rule 243 of the Harness Racing Rules which reads:
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.
Mr Hooper admitted that he had contravened rule 243 but denied the charge under rule 247. The stewards found him guilty of the rule 247 charge and disqualified him for four months for the rule 243 contravention and for three months for the rule 247 contravention, to run concurrently.
He applied to QCAT for a review of the finding of guilt in the rule 247 matter and also asked QCAT to review the penalties imposed. Following a hearing of the review tribunal, in a decision in writing on 10 August 2012 with reasons, the stewards’ decisions were confirmed.
Now Mr Hooper appeals against all findings of the review tribunal. He says that the review tribunal was wrong to find that he had engaged in “intimidatory” conduct contrary to rule 247. This ground of appeal is on the basis that under rule 247 it is necessary for someone actually to have been intimidated and there was no such finding.
There is a general appeal that the penalties under both rules were manifestly excessive.
It is said that the review tribunal did not give adequate reasons for its decision.
Finally it is said that the review tribunal failed to take into account relevant matters, took into account irrelevant matters and did not accord natural justice. In reality, the only point being made here is that there were a number of mitigating factors which appear not to have been taken into account by the review tribunal.
Appeal against the finding that rule 247 had been contravened
The review tribunal found as follows:
[17] 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”.
[18] 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.
It is submitted on Mr Hooper’s behalf that the review tribunal misdirected itself by regarding it was sufficient to constitute an offence under rule 247 if there was conduct which was designed to intimidate, scare or undermine the steward. Instead, it is submitted, it was necessary to consider whether another person was in fact intimidated. Reliance is placed on several cases but in particular on Meller v Low [2000] NSWSC 75 where it was said that proof of actual intimidation of another person is necessary. Since there was no such finding, the decision is inherently flawed and should be set aside.
We do not agree with this submission. Meller v Low was an appeal against a conviction under section 60 of the Crimes Act 1900 (NSW). This made it an offence if a person “assaults, stalks, harasses or intimidates a police officer in the execution of the officer’s duty”.
There is a clear difference between rule 247 and section 60 of the Crimes Act 1900. It is clear from the language of rule 247, including the use of the word “intimidatory”, that behaviour which would intimidate a reasonably robust person comes within the rule even if no one has been intimidated as a matter of fact.
Paragraphs [17] and [18] of the Reasons show that two findings of fact were made at the review tribunal about Mr Hooper’s conduct before Ms Wolsey:
(a) he conducted himself in a manner which as a matter of fact was intimidatory; and
(b) his design was to intimidate, scare and undermine her.
Finding (a) was sufficient to support a finding that Mr Hooper had contravened rule 247. We do not read rule 247 as requiring a finding of intent. This means that rule 247 can be contravened by someone who is not aware of the consequences of his actions. Finding (b) of the review tribunal is however, an important finding when it comes to penalty.
The review tribunal did not misdirect itself on this matter and this ground of appeal fails.
Appeal against the penalty for contravention of rule 243
The facts of this matter are referred to in the decision of the review tribunal as follows:
[13] 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.
[14] 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.
Bearing in mind Mr Hooper was disqualified for four months for the contravention of rule 243, which was one month more than for the intimidatory conduct, the review tribunal must have regarded it as a more serious matter. However there is no explanation in the Reasons why it was regarded so, nor why the contravention warranted disqualification for that length of time.
It appears from the submissions before the review tribunal that there was a dispute over exactly what was said by Mr Hooper and how serious the whole incident was. These matters were not resolved by the review tribunal in its Reasons.
It seems to us therefore that the review tribunal did not give sufficient reasons as to why it considered that the penalty of four months’ disqualification was appropriate for the contravention of rule 243.
An appeal against penalty would normally involve a question of mixed law and fact and leave to appeal is necessary.[1] Since as we have found, adequate reasons were not given, this would amount to an error of law. It is right in these circumstances to give leave to appeal or otherwise to hear it.
[1] Section 142(3)(b) of the QCAT Act.
An appeal on a question of mixed law and fact must be decided by way of a rehearing, with or without the hearing of additional evidence as decided by the appeal tribunal.[2] There is no power to remit the matter back to the tribunal for further consideration.
[2] Section 147(2) of the QCAT Act.
A stay of the disqualification was granted pending the decision of the review tribunal, so the period of disqualification started when the decision of 10 August 2012 was given. This means that the three months’ disqualification under rule 247 is about to expire at the time this appeal is being heard. There is only one month further to go with the four months’ disqualification under rule 243. This makes it impractical to hold a further hearing, and we propose to rehear the application for review of the penalty imposed for the contravention of rule 243 now.
Re-hearing of the application for review of the penalty for contravention of rule 243
The evidence relied on by Racing Queensland appears in the affidavit of Jaime Lee Knight sworn on 28 May 2012. It exhibits a transcript of an inquiry held on 16 May 2012 and transcripts of interviews with various witnesses. Several of them were called at the inquiry to give evidence. The witnesses had heard various parts of Mr Hooper’s outburst that day, and had felt aggrieved by it in varying degrees. The totality of their evidence was that they heard Mr Hooper shouting out critically against Racing Queensland and various racing officials, using the word “fucking” repeatedly. There were a number of people that were standing back watching the scene.
One of the witnesses, Mr Watson, who was a fellow trainer, explained that his daughter and his two young grandchildren and his father aged 93 came by as Mr Hooper was giving off a barrage of obscene language which included the word “fucking” a fair bit. So he went up to Mr Hooper and told him not to swear like that in front of his grandchildren. After that, Mr Hooper did not swear any more. On the following Tuesday Mr Hooper came up to him and apologised for what had happened.
On Mr Hooper’s behalf the way it was put in the written submissions was that having left the stewards' room he walked to the stables which were approximately 20 metres away where his horse was located. As he walked to the stables, and for a short time after his arrival there, he swore loudly about the decision to scratch the horse. Whilst there is no inaccuracy in this summary, we do regard it as an understatement of the gravity of Mr Hooper’s outburst that day.
There was one particular expression used by Mr Hooper that day on one or more occasions which needs particular attention. Mr Watson heard Mr Hooper say in the stabling area “that Kwan is nothing but a fucking moll”. This would appear to have been a reference to Ms Wolsey.
At the inquiry Mr Hooper was asked whether he said this. He replied “Not that I can recall, no”[3]. It was submitted on Mr Hooper’s behalf in the review tribunal that the weight of the evidence was that he said “she’s a fucking moll”. It was also said that Mr Hooper was referring here to his horse and not to Ms Wolsey. We do not agree. For one thing, in our view it is inherently unlikely that Mr Hooper referred to his horse as a fucking moll. We can see from the transcript that Mr Watson gave his evidence to the inquiry clearly and consistently and Mr Hooper’s response to the point suggests that it was possible that he did use the words. It is true that Ms Jones only heard the words “stupid fucking moll”[4], but she recalled that this was in the context of a general rant from Mr Hooper against Racing Queensland, something noted also by others. This tends to corroborate Mr Martin’s evidence because it shows that Mr Hooper was openly stating his grievance against Racing Queensland and its officials which could include Ms Wolsey. And Ms Jones’ evidence does not mean that the words used were indeed limited in that way. Mr Hooper could have used the words more than once or she may have missed the beginning of the expression. In our view Ms Jones’ evidence does not reduce the strength of Mr Martin’s evidence. We must conclude that Mr Hooper used the words as reported by Mr Martin.
[3] Transcript page 80 line 40.
[4] Ms Jones page 98 line 35, together with page 100 line 35.
On Mr Hooper’s behalf it is submitted in the appeal that “any detriment or prejudice suffered by the public was at the very minor end of the scale”. We profoundly disagree with this submission. In the circumstances, we take the view that the contravention of rule 243 was more serious than the contravention against rule 247. Mr Hooper went out of his way in an extremely abusive and loud manner to criticise Racing Queensland and its officials, and to abuse Ms Wolsey. He did this in an area where he knew or should have known that the public and children might be present[5].
[5] This is despite a rule that children under 15 are not allowed in the stabling area.
Rule 243 requires all those in the harness racing industry to maintain the highest standards and we regard Mr Hooper’s outburst as a serious breach of the rule.
In mitigation it is right to take into account Mr Hooper’s plea of guilty to the charge under rule 243, and also his apology to Mr Watson after the incident – which appears to be spontaneous and a demonstration of contrition. We also take into account the serious affect that the period of disqualification has had on Mr Hooper’s life and also on others who work for him as explained in his affidavit sworn on 23 August 2012.
Racing Queensland has provided a list of penalties imposed for offences under rule 243. In 11 of the 19 cases, fines were imposed. In 8 of them there was a disqualification. The periods of disqualification range from 3 months to 3 years.
Mr Hooper’s disciplinary record is not a good one – there were four previous breaches of the rules relating to behavioural matters and at the time of this contravention he was on a good behaviour bond under the same rule for an incident which occurred on 4 April 2012.
Taking all the circumstances into account, in the opinion of this appeal tribunal the correct and preferable decision as to penalty in the case of the contravention of rule 243 is four months’ disqualification. We therefore confirm the decision made by the review tribunal.
Appeal against penalty for the contravention of rule 247
Except where the penalty imposed is manifestly excessive[6] leave to appeal is required since it involves questions of mixed law and fact. Leave to appeal might be given in a case where there was an uncertainty about the precise meaning of certain passages in the Reasons, or there is a reasonably arguable case of error in the decision appealed against.
[6]In which case the appeal would be on a point of law, see Coroneos v Medical Board of Queensland [2003] QCA 269 at [14].
The submissions made on Mr Hooper’s behalf rely on a number of cases, in particular Mitchell v Racing Queensland Limited [2011] QCAT 160 where on a review QCAT reduced a 9 months’ disqualification to a fine of $2,000. However, in Mitchell the contravention of rule 247 was described as an “indiscretion”. It was in the nature of a complaint rather than an accusation against the stewards. Mr Mitchell had been very upset with the circumstances of the race and expressed his views in a “frank and forthright” manner to the steward in private. He could have complained in a more judicious manner rather than in the heat of the moment. The decision also referred to the fact that as the conversation progressed it became more constructive and collaborative when discussing the matter in question.
Mitchell is clearly a long way from Mr Hooper’s case. The review tribunal found that his design was to intimidate, scare and undermine Ms Wolsey. It is inherently far more serious than Mr Mitchell’s case because of this.
Closer to Mr Hooper’s case is Ball, RD v Greyhound Racing Authority (Qld) [2006] QRAT 38 which is relied on by Mr Hooper. In that case, Mr Ball swore repeatedly in an insulting manner at the deputy chair of stewards. It was found that Mr Hooper did not intend to threaten anyone. Mr Ball had a balance between the severity of the offence, the need for deterrence, and previously unblemished character and accepted that the occurrence was totally out of character. Mr Ball was fined $200 and his licence was suspended for three months, that suspension to be suspended for 12 months provided there was no further misconduct.
In Goodman, Brian v Greyhound Racing Authority (Qld) [2006] QRAT 39, the licensee was disqualified for 12 months for abusive and offensive language towards a steward. Again Mr Goodman had not been in breach of the rules previously. The tribunal was of a view that an appropriate penalty would have been a fine of $500 and a suspension of his licence for 12 months, that suspension to be suspended for 12 months provided there was no further misconduct.
The obvious difficulty relying on the Ball and Goodman cases is that Mr Hooper’s position was quite different. As the review tribunal pointed out[7], at the time of these charges Mr Hooper was serving a good behaviour bond for previous disciplinary infractions. The tribunal said that he had a history of outbursts and aggression at the track which had attracted the stewards' attention in the past.
[7] Paragraph 21.
One criticism made of the decision on review is that the tribunal failed to take into account a list of matters relied on in mitigation. However such matters relevant to mitigation as were known at the time of the hearing were before the tribunal in submissions made on Mr Hooper’s behalf. It is clear from several parts of the tribunal’s decision that it considered these written and oral submissions and the tribunal specifically states in paragraph [20] that it did so on the issue of penalty, including the comparative cases which are the same as those relied on in this appeal.
In the light of Mr Hooper’s disciplinary history, and in the light of the review tribunal’s finding that his action in the stewards’ room was designed to intimidate, scare and undermine the steward, we do not regard the penalty as manifestly excessive. Nor do we regard there to be a reasonably arguable case of error in the decision made by the review tribunal.
We therefore refuse leave to appeal in the appeal against penalty in respect of rule 247.
It follows that this appeal must be dismissed.
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