Manzelmann v Racing Queensland Limited - [2013] QCAT 45

CITATION:

Manzelmann v Racing Queensland Limited [2013] QCAT 45

PARTIES:	Brian Richard Manzelmann (Applicant)
v
Racing Queensland Limited (Respondent)

APPLICATION NUMBER:

OCR367-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

12 December 2012

HEARD AT:

Brisbane

DECISION OF:

Richard Oliver, Senior Member
Gilbert Trafford-Walker, Member

DELIVERED ON:

23 January 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the respondent dated 8 November 2012 is set aside.

2. The applicant is disqualified from holding a trainer’s licence for a period of 3 months.

3. The disqualification is subject to the condition that the applicant be permitted to reside at 714 Stockleigh Road, Jimboomba.

CATCHWORDS:

Racing – where the applicant presented a horse with an elevated carbon dioxide level above the prescribed limit – where the applicant admitted administering an alkalising agent after the horse competed in a race – where applicant unaware that the horse was required for a post race blood test – whether the applicant’s conduct was blameworthy

Queensland Civil and Administrative Tribunal Act 2009, s 20
Australian Harness Racing Rules, rr 188A, 190, 218
Racing Act 2002, s 4

Abbott v Racing Queensland Ltd [2012] QCAT 230
Hansen v Racing Queensland Ltd (No 2) [2011] QCAT 610
Dixon v Racing Queensland Ltd [2012] QCAT 331
Wallace v Queensland Racing [2007] QDC 168
Cramp (HAR) – App 17 [2007] VRAT 14

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Brian Richard Manzelmann was represented by Mr McGuire of counsel instructed by Gabriel Ruddy and Garrett Solicitors

RESPONDENT:

Racing Queensland Limited was represented by Mr James of counsel instructed by Racing Queensland Ltd

REASONS FOR DECISION

Mr Manzelmann is a licensed harness racing trainer. On 20 October 2012 a horse that he trained, Something Slippery, competed in race 3 at Albion Park. Subsequent to the race, a blood sample was taken from Something Slippery and upon analysis, it showed that the horse had a total plasma carbon dioxide (TCO2) concentration of 38.8mmol/L. A concentration of TCO2 of more than 36mmol/L is deemed a prohibited substance within Australian Harness Racing Rule 188A(1)(b) and 2(a). The second sample was also tested by Racing Analytical Services Ltd. This sample revealed a concentration of 37.7mmol/L.

As a result Stewards held an inquiry on 8 November 2012 and charged Mr Manzelmann with a breach of rule 190(1). The rule provides that a horse shall be presented for a race free of a prohibited substance. Stewards were satisfied that Mr Manzelmann was in breach of the rule and he was disqualified from holding a trainer’s license for 8 months.

Mr Manzelmann has sought a review of that decision in the Tribunal.

The Tribunal’s function on an application to review an administrative decision is to produce the correct and preferable decision by way of a fresh hearing on the merits.[1] There is no presumption that the original decision is correct nor is it necessary to identify any error in the original decision making process. This review is limited to the penalty that should be imposed…

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: [2013] QCAT 45
Decision Date

CaseChat Overview and Summary

Brian Richard Manzelmann, a licensed harness racing trainer, applied to the Queensland Civil and Administrative Tribunal (QCAT) for a review of a decision by Racing Queensland Limited to disqualify him from holding a trainer’s licence for eight months. The disqualification followed an inquiry into an elevated carbon dioxide level in a horse Manzelmann presented for a race. The horse had a total plasma carbon dioxide (TCO2) concentration of 38.8mmol/L, above the prescribed limit of 36mmol/L. Manzelmann admitted administering an alkalising agent to the horse after the race, but claimed he was unaware that the horse was required for a post-race blood test. The central legal issue was whether the Tribunal should impose a penalty on Manzelmann for breaching the rule that a horse must be presented for a race free of a prohibited substance, and if so, what penalty should be imposed.

The Tribunal concluded that the disqualification imposed by Racing Queensland was excessive. While Manzelmann accepted his breach of the rule, the Tribunal found that he acted reasonably by hydrating the horse after the race, given he had no reasonable expectation that a post-race swab would be required. The Tribunal noted the specific mitigating circumstance that Manzelmann did not act with blameworthy intent, which justified a more lenient penalty than the norm. The Tribunal also considered Manzelmann’s clean disciplinary record since 2004, the large training complex he manages, and the need to maintain income from his exotic bird breeding business. While acknowledging the concern over the dosage of Baladene given to the horse, the Tribunal found no evidence that this conduct impacted the horse’s welfare in a way that should aggravate the penalty for the presentation charge. The Tribunal ultimately set aside the eight-month disqualification and imposed a three-month disqualification, subject to the condition that Manzelmann be permitted to reside at his property to maintain his bird breeding business.

The Tribunal's decision highlights the importance of considering the specific circumstances of each case when determining an appropriate penalty for breaches of racing regulations, balancing consistency with individual mitigating factors. The Tribunal set aside the disqualification and imposed a three-month disqualification, subject to a condition permitting Manzelmann to reside at his property to maintain his income from the bird breeding business.

Orders