Lambourn v Racing Queensland Ltd

[2013] QCAT 699

CITATION: Lambourn v Racing Queensland Ltd [2013] QCAT 699

PARTIES:	Trevor Ian Lambourn (Applicant)
V
Racing Queensland Ltd (Respondent)

APPLICATION NUMBER: OCR056-13

MATTER TYPE: Occupational Regulation Matters

HEARING DATE: 1 May 2013

HEARD AT: Brisbane

DECISION OF: Member Favell (Presiding)
Adjudicator Bertelsen

DELIVERED ON: 6 September 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.   The Stewards’ decision made on 28 February 2013 that Mr Lambourn be disqualified for 8 months is set aside.

CATCHWORDS:

RACING – where elevated TCO2 levels – Rules 190, 191 Australian Harness Racing Rules –

Racing Act 2002 ss 150 -154
Queensland Civil and Administrative Tribunal Act 2009 ss 17 - 20

Aldrich v Boulton and Ross [2009] QCA 501 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
ABC v O'Neill [2006] 229 ALR 457.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr J E Murdoch SC instructed by Gabriel Ruddy & Garrett Solicitors
RESPONDENT:	Represented by Mr A I James, of Counsel instructed by Racing Queensland

REASONS FOR DECISION

Paul Favell, Presiding Member

1. I have had, prior to completing these reasons, the advantage of reading the reasons of Adjudicator Bertelsen. I am grateful for his summary of the facts and references to the applicable Rules and law. I respectfully agree with the findings of fact as set out by Adjudicator Bertelsen.

2. The review jurisdiction of QCAT is conferred by sections 150 - 154 of the Racing Act 2002.

3. This review, because of sections 17, 18, 19 and 20 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) is a reviewable decision to be determined by way of a fresh hearing on the merits to produce the correct and preferable decision. There is no presumption that the original decision is correct.[1]

   [1]        Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 at [9].

4. Section 19 of the QCAT Act provides that in a review such as this the tribunal has all the functions of the decision maker. Some of those functions are to maintain public confidence in racing for which betting is lawful and to ensure the integrity of all persons involved with it.[2] In Aldrich v Boulton and Ross[3] the Supreme Court recognised that a Tribunal when conducting a rehearing may give due recognisance of the requirements of the decision maker. In my view it is important to consider previous penalties imposed by Racing Queensland so as to ensure consistency in so far as it is fair to do so. It is also important to have regard to concepts such as general deterrence, applicable circumstances, previous convictions and general sentencing rules.

   [2]        Racing Act 2002 s 4.

   [3] [2009] QCA 501 at [43].

5. It has been said in the past that:

   the presentation rule is a very blunt instrument. Its net catches the guilty and the people but for the rule would otherwise be innocent. Those who take reasonable care and those who flout the rules are dealt with on the same basis as to guilt. The only…