Leitenberger v Racing Queensland - [2012] QCAT 248

CITATION:

Leitenberger v Racing Queensland [2012] QCAT 248

PARTIES:	Siegfried Leitenberger (Applicant)
v
Racing Queensland (Respondent)

APPLICATION NUMBER:

OCR114-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

8 June 2012

HEARD AT:

Brisbane

DECISION OF:

Richard Oliver, Senior Member

DELIVERED ON:

18 June 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the respondent is set aside and in lieu the applicant is disqualified for a period of 8 months.

CATCHWORDS:

RACING – where applicant pleaded guilty to presenting a horse in a harness race with a prohibited substance in excess of threshold – whether penalty imposed excessive – whether penalty consistent with comparable cases – where a need for consistency in the imposition of penalties

Queensland Civil and Administrative Tribunal Act 2009, ss 19, 20

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Leitenberger appeared in person

RESPONDENT:

Racing Queensland was represented by Mr Birch, Chief Steward

REASONS FOR DECISION

Mr Leitenberger is the owner and trainer of Mr Moseby, a harness racing horse. On 13 March 2012 Mr Moseby competed at Albion Park in race 7. Prior to the race stewards took a pre race blood sample from the horse and a subsequent analysis of that sample established the horse had a total carbon dioxide (TCO2) level in excess of legal limit of 36mmol per litre.
Mr Leitenberger was charged under Rule 190 of Australian Harness Racing Rules which reads:
(1)A horse shall be presented for a race free of prohibited substances
(2)If a horse is presented for a race otherwise in accordance with sub rule (1) the trainer or the horse is guilty of an offence.
The certificate of analysis of the blood sample showed a total carbon dioxide concentration of 37.4mmol/L.
The stewards convened an inquiry on 27 March 2012. During the course of that inquiry Mr Leitenberger frankly discussed the feed regime of Mr Moseby and that the horse was drenched after a race on the Sunday before the relevant event. He also said that he gives the horse bicarb in his feed daily in powder form. There was, he says, nothing unusual about the horse’s treatment prior to the race which would necessarily alert Mr Leitenberger to the increase level of TCO2.
Mr Leitenberger, at the hearing, suggested that sometimes horses have an abnormal reaction to the substance. Although there is no expert evidence in this particular hearing on the point, this Tribunal has heard on other occasions from veterinary experts that the maximum TCO2 level for a horse in work should be no more than about 30mmol/L and that is why, there is a buffer to 36mmol/L to take into account those horses that might naturally show a higher level. Even the stewards were surprised at this level because they had monitored the horse on previous occasions which always showed lower levels after analysis.
As this is a presentation charge, Mr Leitenberger, sensibly, accepted the charge but considers the penalty of 12 months disqualification too severe. As a consequence he has sought to…

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 248
Decision Date: 18 June 2012

CaseChat Overview and Summary

Leitenberger, an individual, brought a case against Racing Queensland, a statutory body, challenging the penalty imposed on him for presenting a horse in a harness race with a prohibited substance in excess of the threshold. The case was heard and determined by the Queensland Civil and Administrative Tribunal (QCAT). The central issue before the tribunal was whether the penalty imposed by Racing Queensland was excessive and whether it was consistent with penalties imposed in comparable cases. The tribunal had to consider the need for consistency in the imposition of penalties within the racing industry.

In examining the matter, the tribunal considered the relevant statutory provisions and the principles of administrative law. It assessed the penalty imposed in light of comparable cases and the objective of ensuring consistency in penalty imposition. The tribunal found that the penalty imposed by Racing Queensland was excessive and not consistent with penalties in comparable cases. The tribunal also noted the importance of maintaining consistency in penalty imposition within the racing industry to ensure fairness and to deter similar conduct.

Consequently, the tribunal set aside the decision of Racing Queensland and substituted a new penalty. The applicant was disqualified for a period of eight months, which the tribunal found to be a more appropriate and consistent penalty. This decision underscores the need for tribunals to carefully consider the principles of administrative law and the objective of consistency in penalty imposition when reviewing the decisions of administrative bodies.

Orders

Orders of the court

1. The decision of the respondent is set aside and in lieu the applicant is disqualified for a period of 8 months.

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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