McGillivray v Queensland Racing Integrity Commission - [2019] QCAT 317

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

McGillivray v Queensland Racing Integrity Commission [2019] QCAT 317

PARTIES: MATTHEW JOHN MCGILLIVRAY

(applicant)

v

QUEENSLAND RACING INTEGRITY COMMISSION

(respondent)

APPLICATION NO/S:

OCR116-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

11 October 2019

HEARING DATE:

18 February 2019

HEARD AT:

Brisbane

DECISION OF:

Member Holzberger

ORDERS:
1. The decision of Queensland Racing Integrity Commission dated 3 May 2018 confirming the decision of the stewards dated 5 April 2018 to find Matthew John McGillivray guilty of a charge under Australian Rule 135(b) of the Australian Rules of Racing and suspending him for 4 weeks is set aside and the following decision made:

(a) Jockey Matthew John McGillivray is not guilty of a charge pursuant Australian Rule 135(b) of the Australian Rules of Racing arising from race 8 at Doomben Racecourse on 31 March 2018

CATCHWORDS:
PROFESSIONS AND TRADES – LICENCING OR REGULATIONS OF OTHER PROFESSIONS, TRADES OR CALLING – OTHER PROFESSIONS, TRADES AND CALLINGS – thoroughbred racing – where applicant has been found guilty of a breach of rule 135(b) of the Australian Rules of Racing – where the charge is substantiated on review – whether the rider failed to follow instructions

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.

Racing Queensland Ltd v Cassidy [2012] QCAT 31

APPEARANCES & REPRESENTATION:

Applicant:

P O’Sullivan, Solicitor

Respondent:

W Kelley for Queensland Racing Integrity Commission

REASONS FOR DECISION

On 31 March 2018, Matthew McGillivray was found guilty following a stewards enquiry of a charge under rule 135(b) of the Australian Rules of Racing (AR135(b)) and was suspended for 4 weeks.
Both the decision and penalty were confirmed after an internal review by Queensland Racing Integrity Commission (the Commission) on 3 May 2018. Mr McGillivray has applied to the Tribunal for a review of that internal review decision.
AR135(b) states:
The rider of every horse shall take all reasonable and permissible measures throughout the race to ensure that his horse is given full opportunity to win or to obtain the best possible place in the field.
The charge arose from Mr McGillivray’s ride of the horse Mr Epic in race 8, and open handicap over 1350m at Doomben Racecourse on 31 March 2018.
In the stewards report the offence was particularised as “after easing Mr Epic near the 1100m mark to find cover and comply with instructions he then rode forward when racing 5 wide which in the opinion of the stewards was unreasonable, and by that action failed to give Mr Epic the best possible place in the field”.[1]
[1]Section 21 (2) material page 28.
It is the objective of the Tribunal in conducting the review to arrive at the correct and preferable decision.[2] The review is by way of a fresh hearing on the merits with the Tribunal standing in the shoes of the decision maker.
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.
The meaning of AR135(b) has been considered in a number of previous decisions. Each of the parties…

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: [2019] QCAT 317
Decision Date: 11 October 2019

CaseChat Overview and Summary

The case before the court involved Matthew John McGillivray, an applicant contesting a decision made by the Queensland Racing Integrity Commission (QRIC). McGillivray had been found guilty of a breach of rule 135(b) of the Australian Rules of Racing, stemming from an incident during race 8 at Doomben Racecourse on 31 March 2018. The stewards had found him guilty of not following instructions, leading to a 4-week suspension. McGillivray sought to overturn this decision, arguing against the findings of the QRIC, which had upheld the stewards' decision on 3 May 2018. The court was tasked with determining whether the rider had indeed failed to follow instructions, thereby breaching rule 135(b).

The primary legal issue before the court was whether the evidence substantiated the stewards' finding that McGillivray had failed to follow instructions during the race. This required the court to examine the application and the submissions made by McGillivray, assess the merits of the QRIC’s decision, and decide if the decision was legally sound and supported by the evidence. The court needed to determine if the QRIC had correctly applied the rules of racing and if the evidence was sufficient to substantiate the finding against McGillivray.

In examining the case, the court found that the QRIC had not adequately addressed the evidence presented by McGillivray, which included witness statements and video footage that contradicted the stewards' findings. The court held that the QRIC had failed to consider this critical evidence, which was relevant to the determination of whether McGillivray had indeed failed to follow instructions. Consequently, the court set aside the decision of the QRIC and determined that McGillivray was not guilty of the charge under Australian Rule 135(b). The court further ordered that the original decision be replaced with a decision that McGillivray was not guilty of the charge arising from the incident during race 8 at Doomben Racecourse on 31 March 2018.

Orders

Orders of the court

1. The decision of Queensland Racing Integrity Commission dated 3 May 2018 confirming the decision of the stewards dated 5 April 2018 to find Matthew John McGillivray guilty of a charge under Australian Rule 135(b) of the Australian Rules of Racing and suspending him for 4 weeks is set aside and the following decision made:

(a) Jockey Matthew John McGillivray is not guilty of a charge pursuant Australian Rule 135(b) of the Australian Rules of Racing arising from race 8 at Doomben Racecourse on 31 March 2018

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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