Litzow v Racing Queensland Pty Ltd

[2010] QCAT 414

CITATION:		Litzow v Racing Queensland Pty Ltd [2010] QCAT 414
PARTIES:	Gary William Litzow
v
Racing Queensland Pty Ltd

APPLICATION NUMBER:   OCR191-10

MATTER TYPE: Occupational regulation matters

HEARING DATE:     25 August 2010

HEARD AT:  Decision on the papers

DECISION OF: Peta Stilgoe

DELIVERED ON: 25 August 2010

DELIVERED AT:      Brisbane

ORDERS MADE:

The respondent’s application to strike out proceedings dismissed. The applicant’s application to extend time in which to file proceedings is granted. The applicant is given leave to be legally represented in these proceedings.

CATCHWORDS :  Application to extend time to commence proceedings – whether any prejudice or detriment ss 150, 153 Racing Act – s61 QCAT Act – application for leave to be legally represented – s43 QCAT Act

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the

Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

1. On 14 July 2010, at a Queensland Racing Stewards’ hearing, Queensland Racing Ltd decided that Mr Litzow had breached Rules 231(1) and 243 of the Australian Harness Racing Rules and imposed a penalty upon him. Mr Litzow filed an application for a review of that decision on 6 August 2010.

2. There are two applications before the tribunal. Queensland Racing Ltd has applied to strike out Mr Litzow’s application because it was not filed within 14 days of his receiving notice of the decision. Mr Litzow has applied for an extension of time in which to file his application. If Mr Litzow succeeds in his application, the application of Queensland Racing Ltd, must, necessarily, fail.

3. Section 150(3) of the Racing Act provides that an application for a review must be made within 14 days of the applicant receiving notice of the decision to be reviewed. Both parties’ applications are proceeding on the basis that the Mr Litzow received appropriate notice at the conclusion of the Queensland Racing Stewards’ hearing on 14 July 2010.

4. Section 61(1) of the Queensland Civil and Administrative Tribunal Act allows the tribunal to extend a time limit fixed for the start of proceedings by an enabling Act. Section 61(2) makes it clear that an extension can be given even if the time for complying with the relevant requirement has passed. Section 61(3) imposes the only limitation on the tribunal’s ability to extend time; it cannot do so if it would cause prejudice or detriment to a party to the proceedings that is not able to be remedied by an appropriate order for costs or damages.

5. Mr Litzow has explained his delay in bringing these proceedings. He was under the mistaken impression that he had 28 days in which to appeal. As soon as he became aware that this was not the case, Mr Litzow attempted to lodge the application within time. His application was not accepted because of a procedural deficiency. That deficiency was corrected when the application was filed on 6 August 2010.

6. Queensland Racing Ltd does say that it will suffer prejudice by the delay in Mr Litzow bringing the application:

a)Its disciplinary system depends on certainty and prompt resolution of disciplinary matters so that all parties are aware of standards expected.

b)Allowing appeals to proceed outside the statutory framework is detrimental to the industry and Queensland Racing Ltd itself.

c)A delay may adversely affect the standard of evidence available to the tribunal.

1. The incident the subject of the disciplinary proceedings took place on 3 July 2010. Pursuant to section 153 of the Racing Act the tribunal must start the hearing of a review within 28 days after the application for review is made under section 150.

2. It is difficult to conceive of any circumstances in which a delay of eight days could affect adversely the recollection of witnesses over a period of a few months. If one of the witnesses is especially susceptible to such fallibility then it was incumbent on Queensland Racing Ltd to identify that circumstance and bring it to the tribunal’s attention.

3. The tribunal acknowledges the desire to have disciplinary matters dealt with promptly and within the statutory framework. Section 153(2) of the Racing Act allows the tribunal to extend the period in which the hearing must commence if it considers the special circumstances of the review require it to do so. This section and section 61 of the Queensland Civil and Administrative Tribunal Act are necessarily part of the statutory framework to which Queensland Racing refers. Extensions of time are part of the framework, not an anathema to it.

10. Mr Litzow has also sought leave to be legally represented in these proceedings. Although the tribunal has not been favoured with submissions, it is apparent that these proceedings have the potential to affect Mr Litzow’s profession. The tribunal usually grants leave in these circumstances, particularly if, as appears here, there is no opposition to that course from the regulator.

11. The orders of the tribunal are:

a)The respondent’s application to strike out proceedings dismissed.

b)The applicant’s application to extend time in which to file proceedings is granted.

c)The applicant is given leave to be legally represented in these proceedings.