McMullen v Queensland Racing Integrity Commission - [2021] QCAT 202

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

McMullen v Queensland Racing Integrity Commission [2021] QCAT 202

PARTIES: TALEAH JANE MCMULLEN

(applicant)

v

QUEENSLAND RACING INTEGRITY COMMISSION

(respondent)

APPLICATION NO/S:

OCR041-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

18 May 2021

HEARING DATE:

8 February 2021

HEARD AT:

Brisbane

DECISION OF:

Member Kent

ORDERS:

The decision and penalty under review are confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – OTHER PROFESSIONS, TRADES OR CALLINGS - whether unacceptable drive by the applicant – consideration of whether conduct blameworthy – whether error of judgment.

Australian Harness Racing Rules R 149

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

McMullen v Racing Queensland Ltd [2012] QCAT 286
Mifsud v Racing Victoria Stewards [2007] VRAT 6
Green v Racing Queensland Ltd [2012] QCATA 269

Richardson v Racing Queensland Ltd [2013] QCAT 95

APPEARANCES & REPRESENTATION:

Applicant:

S Neaves

Respondent:

A Turner

REASONS FOR DECISION

The incident

Ms McMullen was the driver of the horse, Studleigh Stride, in Race 2 at the Albion Park Harness Racing club (Albion Park) on 28 December 2019. As a result of this drive and a subsequent Stewards’ Inquiry she was convicted of a charge pursuant to Australian Harness Racing Rules (AHR) rule 149(2) and given a penalty of a four-week suspension of her licence.

The charge and conviction

Ms McMullen was convicted of a breach of rule 149(2) of the AHR.
The particulars of the charge were as follows: the applicant, as driver of Studleigh Stride in Race 2 at Albion Park, after working hard early to challenge for the lead and when unsuccessful, running a 26.6 quarter; that shortly after she obtained a favourable forward position approaching the 1,200 metres, Ms McMullen elected to improve on her own accord. She then put further pressure on her horse to work forward three wide until the 900 metres before she eventually crossed to the position outside the leader without cover and as a consequence of the early pressure and without respite her horse was uncompetitive over concluding stages and was giving ground from the 400 metre point.
The applicant’s penalty was a four-week suspension of her licence to drive harness horses. Ms McMullen sought an internal review of this decision and penalty. The decision and penalty were both affirmed. The applicant then sought a Tribunal review of the conviction and penalty. The decision of the internal reviewer was stayed by the Tribunal and the matter subsequently heard by the Tribunal on 8 February 2021.

Applicant’s Evidence - Stewards’ Inquiry

The stewards were critical of Ms McMullen’s drive. Her views of the relevant issues are as follows:
(a)Her answer to a request to explain her drive - the applicant said:
...As soon as Ms McMullen (other driver) crossed down in front of me, and she kind of abruptly slackened the pace in front of me and grabbed up and obviously because of that I assumed that the death seat was then obviously there,…

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: [2021] QCAT 202
Decision Date

CaseChat Overview and Summary

Taleah Jane McMullen appealed the Queensland Racing Integrity Commission's decision to suspend her licence for four weeks for allegedly driving her horse, Studleigh Stride, in an unacceptable manner. The Tribunal considered whether the applicant's drive was blameworthy and whether the penalty was appropriate. The Tribunal found that Ms McMullen's decision to drive the horse in the manner that she did was not reasonable in the circumstances, and that there was blameworthy conduct in Ms McMullen's actions in driving Studleigh Stride in the relevant race. The Tribunal confirmed the decision and penalty under review.

The Tribunal considered the evidence, including the transcripts of the original inquiry, expert reports, and evidence and submissions from both parties. The Tribunal found that Ms McMullen unnecessarily moved into a three-horse wide position, without cover, passing the 1200 metre mark, and that her horse was left without any respite. The Tribunal accepted the respondent's evidence relating to the speed of the very fast quarter and then the speed of the race. The Tribunal found that Ms McMullen made decisions about how this horse should be driven, and in the circumstances, these decisions amounted to blameworthy or culpable behaviour. The Tribunal confirmed the decision and penalty under review, finding that the penalty was appropriate and proportionate in the circumstances.

Orders