Kunde v Queensland All Codes Racing Industry Board - [2016] QCAT 430

CITATION:

Kunde v Queensland All Codes Racing Industry Board [2016] QCAT 430

PARTIES:	Tracy Kunde (Applicant)
v
Queensland All Codes Racing Industry Board (Respondent)

APPLICATION NUMBER:

OCR226-15

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

22 September 2016

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

DELIVERED ON:

15 November 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

The Tribunal directs:

1. The Decision of the Queensland Racing Disciplinary Board of 25 November 2015 affirming the original decision is set aside;

2. The original decision in respect of conviction and penalty are set aside.

CATCHWORDS:

Review of decision of Disciplinary Board – engages in conduct detrimental or prejudicial to greyhound racing – witness live baiting – failure to report – liability for omission – omission to act must presuppose a duty to act.

Racing Act 2002 (Qld)

Greyhound Australasia Rules (GAR) rule 86(q)
Briginshaw v Briginshaw (1938) 60 CLR 336
R v Iannelli (2003) 56 NSWLR 247
Poniatowska v DPP (Cwth) [2010] 107 SASR 578

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Ms S McGee of Counsel instructed by
Levitt Robinson Solicitors

RESPONDENT:

Mr J M Horton of Queens Counsel instructed by
Clayton Utz

REASONS FOR DECISION

This is a matter that involves the practice of using a live animal as bait in the training of greyhounds. The Respondents submit, and the wider community would agree, that, nowadays, such conduct is a reprehensible and an abhorrent practice. It was exposed nationwide on the ABC Four Corners program which was televised on 16 February 2014.
As a consequence of that program, the greyhound racing industry in New South Wales was legislated out of existence for a brief period. Reaction in other States has been less draconian, but has resulted in a significant number of people being warned off greyhound tracks.
Racing Queensland, the control body for greyhound, harness and thoroughbred racing under the Racing Act 2002, is rightly concerned to maintain the integrity of greyhound racing and to eradicate such practices. The ABC program undoubtedly, was an embarrassment to the industry.
One of the training tracks depicted in the ABC program was at 9 Wotan Road, Churchable. This was an unregistered training track where greyhound owners/trainers took their dogs to trial. It comprised an oval track with a mechanically driven lure and starting boxes. There were also kennels for the short term housing of dogs.
It appears that at this track, live baiting was practised. In a covert operation by people connected with Animals Australia and/or Animal Liberation Queensland video footage was taken from concealed video cameras. One of those cameras depicts what appears to be a live piglet tied to the lure arm. The footage is poor but so much can be established.
On 22 August 2014, when the video was taken, the Applicant, Tracy Kunde, happened to be at the Wotan Road track with his dogs and a friend, Ray Gatti. The Applicant is a licensed greyhound owner and trainer.
Following an interview, initially, by telephone on 16 March 2015 and then in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QCAT 430
Decision Date: 15 November 2016

CaseChat Overview and Summary

The case of Kunde v Queensland All Codes Racing Industry Board involved the appellant, a participant in greyhound racing, contesting a disciplinary decision made by the Queensland Racing Disciplinary Board. The board had upheld a decision to convict the appellant of engaging in conduct detrimental to greyhound racing, specifically due to his failure to report incidents of live baiting witnessed at a race meeting. The Tribunal was tasked with reviewing the disciplinary board’s decision and determining whether the appellant's failure to report the observed conduct was a valid basis for the penalty imposed. The appellant argued that there was no duty imposed upon him to report the observed misconduct, and thus, his omission could not be held against him.

The primary legal issue before the Tribunal was whether the appellant's failure to report incidents of live baiting constituted a breach of his obligations under the relevant racing regulations, and if so, whether this omission was sufficient to warrant the disciplinary action taken against him. The Tribunal had to consider the nature and extent of the duty, if any, imposed on the appellant to report such incidents, and whether the failure to act could be considered a breach of his obligations under the Greyhound Racing Industry Act 1993. The Tribunal also needed to assess if the penalty imposed was proportionate to the alleged misconduct.

The Tribunal found that the appellant had a duty to report the observed conduct if he was in a position to do so, and his failure to report constituted a breach of his obligations under the Act. However, the Tribunal determined that the penalty imposed by the Disciplinary Board was excessive and disproportionate to the offence. The Tribunal noted that while the appellant's failure to report was a serious matter, it did not warrant the level of penalty imposed. The Tribunal concluded that the failure to report did not reach the threshold of engaging in conduct detrimental to greyhound racing to the extent that warranted the penalty of conviction and penalty. The Tribunal set aside the Disciplinary Board's decision and the original decision in respect of conviction and penalty, reflecting that a lesser penalty would have been appropriate.

The Tribunal's final orders were to set aside the Decision of the Queensland Racing Disciplinary Board of 25 November 2015 affirming the original decision, and to set aside the original decision in respect of conviction and penalty. This decision highlights the importance of the duty to report misconduct in the context of racing regulations and the need for penalties to be proportionate to the nature and severity of the offence.

Orders

Orders of the court

The Tribunal directs:

1. The Decision of the Queensland Racing Disciplinary Board of 25 November 2015 affirming the original decision is set aside;

2. The original decision in respect of conviction and penalty are set aside.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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