Lawlor v Racing Queensland Limited - [2012] QCAT 255

CITATION:

Lawlor v Racing Queensland Limited [2012] QCAT 255

PARTIES:	David James Lawlor (Applicant)
v
Racing Queensland Limited (Respondent)

APPLICATION NUMBER:

OCR204-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

22 June 2012

HEARD AT:

Brisbane

DECISION OF:

Richard Oliver, Senior Member
Sandra Deane, Member

DELIVERED ON:

29 June 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The respondent’s decision of 6 June 2012 is confirmed.

2. The review application is dismissed.

CATCHWORDS:

RACING – APPLICATION FOR REVIEW – elevated TCO2 levels – difference in readings in certificates of analysis – whether prima facie case – whether measurement uncertainty is taken into account to establish a prima facie case under AR178D – where consistency in penalty is desirable

Australian Rules of Racing, AR178, 178C, 178D
Queensland Civil and Administrative Tribunal Act 2009, ss 19, 20
Racing Act 2002, s 4

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

Briginshaw v Briginshaw (1938) 60 CLR 336
Peter Tonkin Racing Appeals Tribunal Appeal No 1 of 2005 (Victoria)

Abbott v Racing Queensland Limited [2012] QCAT 230

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

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

David James Lawlor represented by Mr MT Tutt of Butler McDermott Lawyers

RESPONDENT:

Racing Queensland Limited represented by Mr A James of Counsel

REASONS FOR DECISION

Mr Lawlor is the trainer of Noorgoora Burr. Noorgoora Burr started in race 3 at Doomben on 12 May 2012 and won the race.
Prior to the race a blood sample was taken and subsequent analysis at the Racing Science Centre on 14 May 2012 showed that there was a total plasma carbon dioxide (TCO2) concentration of 37.6mmol/L. A subsequent analysis of the reserve sample by Racing Analytical Services Ltd in Victoria on 15 May 2012 showed a TCO2 concentration of 36.6mmol/L. An elevated level of CO2 may enhance the racing performance of a horse by delaying the onset of fatigue and therefore improving its endurance. Excessive levels may harm the horse’s health.
Australian Racing Rule 178C provides that alkalising agents are prohibited substances when the total carbon dioxide is at a concentration of more than 36 millimoles per litre in plasma. The laboratories include in their certificates that there is an allowance for measurement uncertainty of 1 millimole per litre. In relation to the second sample, if the benefit of that uncertainty was given to Mr Lawlor, this would result in the concentration being below the threshold of 36 mmol/L.
On the basis of the certificates of analysis, Stewards convened an inquiry on 6 June 2012 and after hearing from Dr Vine, the Director of Racing Analytical Services Ltd charged Mr Lawlor with a breach of AR178 which provides:
“When any horse that has been brought to a racecourse for the purpose of engaging in a race and a prohibited substance is detected in any sample taken from it prior to or following its running in any race, the trainer and any other person who was in charge of…

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: [2012] QCAT 255
Decision Date: 29 June 2012

CaseChat Overview and Summary

Lawlor commenced proceedings in the Queensland Civil and Administrative Tribunal (QCAT) seeking a review of a decision made by Racing Queensland Limited (RQL). The dispute centred on elevated levels of TCO2 found in Lawlor’s horse during a race, which led to a disqualification and subsequent penalties. Lawlor argued that the inconsistency between the readings in the certificates of analysis should be taken into account to establish a prima facie case under AR178D and that there should be consistency in the penalty imposed.

The primary issue before the tribunal was whether the measurement uncertainty in the certificates of analysis should be considered in establishing a prima facie case under AR178D. Additionally, the tribunal had to determine if consistency in penalty was desirable in the context of the Racing Regulations. The tribunal also had to decide whether the decision of RQL to disqualify Lawlor and impose penalties was correct.

The tribunal found that the measurement uncertainty in the certificates of analysis did not need to be taken into account to establish a prima facie case under AR178D. The tribunal held that the regulations required a higher threshold to be met before a prima facie case could be established, which was not achieved in this instance. Furthermore, the tribunal considered the desirability of consistency in penalty and found that it was not necessary to achieve consistency in all cases, particularly where the circumstances of each case differed. The tribunal concluded that the decision of RQL was correct and dismissed the application for review.

The tribunal confirmed the decision of RQL and dismissed the review application. This outcome effectively upheld the penalties imposed on Lawlor, affirming the disciplinary action taken by RQL in relation to the elevated TCO2 levels found in Lawlor’s horse.

Orders

Orders of the court

1. The respondent’s decision of 6 June 2012 is confirmed.

2. The review application is dismissed.

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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