Missen v Racing Queensland Limited - [2013] QCAT 360

CITATION:

Missen v Racing Queensland Limited [2013] QCAT 360

PARTIES:	Mr Dale Missen (Applicant)
v
Racing Queensland Limited (Respondent)

APPLICATION NUMBER:

OCR126-13

MATTER TYPE:

Occupational regulation matter

HEARING DATE:

14 June 2013

HEARD AT:

Brisbane

DECISION OF:

R F King-Scott, Member
David Paratz, Member

DELIVERED ON:

15 July 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Decision of Racing Queensland Limited made on 17 May 2013, that Mr Dale Missen be disqualified as a jockey for 12 months, is set aside.

CATCHWORDS:

REVIEW - Horse racing – failing to run a horse on its merits – difference of opinion between experts after viewing video of race

Racing Act 2002 (Qld) s 150
Australian Rules of Racing AR135(a)

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr James E Murdoch QC instructed by Gabriel Ruddy & Garrett

RESPONDENT:

Mr A I James of Counsel instructed by Racing Queensland

REASONS FOR DECISION

Dale Missen is a jockey of some 15 years experience. He has not been in serious trouble with the Stewards before the events which are the subject of this review.
On 27 April 2013, Mr Missen appeared before a Stewards’ Inquiry following his ride on Destars in the Maree Fitz 60^th Invitational at the Gold Coast, a Class 1, 1200m race for colts and geldings.
At the conclusion of their deliberations, including a resumed hearing on 13 May 2013, the Stewards charged Dale Missen under Australian Rule of Racing 135(a) with not allowing Destars to run on its merits. They convicted him of the charge and disqualified his licence as a professional jockey for a period of 12 months.
Mr Missen applied on 17 May 2013 for a review of that decision.

REVIEW

Mr Missen seeks a review of the Stewarts’ decision by this Tribunal pursuant to s 150 of the Racing Act 2002.
The Tribunal’s jurisdiction to conduct a review is contained in Chapter 2 Part 1 of the Queensland Civil and Administrative Act 2009, particularly s 20. Section 20 provides that the Tribunal must hear and decide the review of a reviewable decision by way of a fresh hearing on the merits. The purpose of the review is to produce the correct and preferable decision.
Stewards are “functionaries of a very special character appointed for their knowledge of racing”.[1] However, be that as it may, the Tribunal is obliged to consider the matter afresh.[2]
[1] Evan v Winterbottom [1945] 47 WALR 79 at 85.
[2] See also Queensland Racing Limited v McMahon [2010] QCATA 73.
The comments of the Tribunal in Queensland Racing Limited v Ganderton [2010] QCAT 348 are apposite:
[15] Having concluded that we must now consider that matter afresh, we do acknowledge the weight and experience and dedication of Stewards in the industry and having regard to the collection knowledge and experience when deciding whether or not charges should be laid against riders under AR.135. In addition, taking into account that Stewards not only have the depth of knowledge as to the application of…

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 360
Decision Date

CaseChat Overview and Summary

In the matter of Missen v Racing Queensland Limited, the Tribunal was asked to review a decision by Racing Queensland to disqualify the applicant, Mr. Missen, from participating in racing activities for a period of 12 months. The nature of the dispute centred around whether the Tribunal had the authority to substitute the charge with a lesser one, independent of the parties' submissions. The case was heard and determined by the Queensland Civil and Administrative Tribunal (QCAT).

The central legal issue before the Tribunal was whether it had the power to impose a lesser charge against the applicant on its own initiative, even though neither party had proposed such a charge. The respondent, Racing Queensland, had not preferred any lesser charges against Mr. Missen. The Tribunal considered its powers of review as outlined in the Queensland Civil and Administrative Act 2009, particularly Section 19(c), which grants the Tribunal all the functions of the decision-maker for the reviewable decision. Given the absence of any relevant precedent where the Tribunal had independently considered a lesser charge, the Tribunal found that it was not empowered to do so in this case.

Upon reviewing all the evidence presented, the Tribunal concluded that it was not satisfied that the charge against Mr. Missen was justified. Consequently, the Tribunal set aside the decision of Racing Queensland to disqualify Mr. Missen for 12 months. The Tribunal's decision was based on its finding that the charge was not substantiated by the evidence. The Tribunal did not propose to consider a lesser charge on its own initiative, as it found no precedent or statutory basis to do so.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal was invited to consider a lesser charge. However, Mr Murdoch QC submitted that the Tribunal’s powers of review did not permit it to bring an alternative charge. The Tribunals powers to review are contained in Chapter 2 Part 1 Division 3 of the Queensland Civil and Administrative Act 2009. Section 19 (c) provides that:“In exercising its review jurisdiction, the tribunal-(c) has all the functions of the decision-maker for the reviewable decision.”(Our emphasis). The Respondent did not prefer any lesser charges against the Applicant. Neither party could refer us to any decision where this Tribunal had considered a lesser charge on its own initiative, and we do not propose to do so. Having considered all the evidence, we are not satisfied that the charge is made out. Accordingly, the decision of Racing Queensland, to disqualify Mr Missen for 12 months, is set aside.

Ratio Decidendi

Legal Principle Established

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