Missen v Racing Queensland Limited

CITATION:

Missen v Racing Queensland Limited [2013] QCAT 256

PARTIES:	Mr Dale Missen (Applicant)
V
Racing Queenlsand Limited (Respondent)

APPLICATION NUMBER:

OCR126-13

MATTER TYPE:

Occupational Regulation

HEARING DATE:

23 May 2013

HEARD AT:

Brisbane

DECISION OF:

Richard Oliver, Senior Member

DELIVERED ON:

23 May 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

Until further order of the Tribunal the decision of the Respondent made on 13 May 2013 is stayed.

CATCHWORDS:

Racing – application for stay – where charge laid is serious – consideration of the public interest and whether an arguable case.

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

On 13 May 2013 the Steward of Racing Queensland charged Mr Missen with a breach of Australian Racing Rule 175(a) in that he failed to ride the horse Destars on its merits in Race 7 at the Gold Coast on 27 April 2013.

Mr Missen has applied to the Tribunal for a review of that decision. The review application has been listed for hearing on 5 June 2013. He has also applied for a stay of the decision pending the hearing of the review application. The Tribunal has power to grant a stay under s 24 of the QCAT Act. Some of the factors to be taken into account are set out in subsection 3 which include the interest of the parties, and importantly the public interest.

This is a serious charge. The penalty imposed of 12 months disqualification reflects the seriousness of the charge particularly in circumstances where Mr Missen is a very experienced jockey and, he says, he has not been the subject of similar disciplinary action in his riding career. The effect of the disqualification has serious financial consequences for him as well as his reputation.

I am conscious of the fact that a charge of this kind has a serious impact on the integrity of the racing industry and the public interest. One of the functions of the respondent, as set out in s 4 of the Racing Act is to maintain confidence in the industry and those associated with it. Conduct of the type alleged here undermines that confidence. This of itself is a factor against granting the stay.

Another important feature in considering whether the decision to impose the penalty should be stayed pending the ultimate determination of the review application, is whether the applicant has an arguable case.[1] I have considered the particulars of Mr Missen’s conduct as set out in the Steward’s report and his response to that in his affidavit sworn 16 May 2013. The riding the subject of the charge took place, it seems, mid way to three quarters of the way through the race, although I am not sure of the total distance of the race. Importantly it did not occur in the closing stages of the race when the horse was in contention for a win or place. If the Tribunal is satisfied the charge is made out then where the riding occurs is irrelevant, however on considering the stay and arguable case, I consider it may be relevant.
[1]Deputy Commissioner Stewart v Kennedy [2011] QCATA 254; Queensland Health v Information Commissioner & Anor [2011] QCATA 66.

Mr Missen has an explanation for his riding conduct. It did not find favour with the Stewards but the Tribunal may take a different view on seeing the video footage of the race. It seems to me having regard to his explanation of his ride and what he was trying to achieve in the field as he judged it, he has an arguable case.

I also must consider the balance of convenience. Employment as a jockey is Mr Missen’s only source of income. He has financial commitments. If the decision of the Stewards is set aside then he will suffer significant financial loss if the stay is not granted. The balance of convenience favours the granting of the stay.

I do not think, where a hearing is imminent, there will be any adverse impact on the public interest if a stay is granted.

There will be an order accordingly.

The matter of Missen v Racing Queensland Limited [2013] QCAT 256 involved Mr Dale Missen, who applied to Queensland Civil and Administrative Tribunal (QCAT) for a stay of a disciplinary decision made against him by Racing Queensland. The Steward of Racing Queensland had charged Mr Missen with a breach of Australian Racing Rule 175(a), alleging that he failed to ride the horse Destars on its merits during Race 7 at the Gold Coast on 27 April 2013. The penalty imposed was a 12-month disqualification, which had serious financial and reputational consequences for Mr Missen. The application for a stay was made under section 24 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

The legal issues before QCAT were whether the Tribunal should grant a stay of the disciplinary decision pending the outcome of the review application, and if so, what factors should be considered in making that decision. The relevant factors included the interests of the parties, the public interest in maintaining the integrity of the racing industry, and whether Mr Missen had an arguable case for the review. The Tribunal also had to consider the balance of convenience and the potential impact of granting or refusing the stay on the public interest.

In deciding the application, the Tribunal considered that the charge against Mr Missen was serious and had a significant impact on the integrity of the racing industry. However, Mr Missen had an arguable case for the review, as his explanation for his riding conduct might be accepted by the Tribunal upon viewing the video footage of the race. The Tribunal also considered that the balance of convenience favoured granting the stay, given that employment as a jockey was Mr Missen’s only source of income and he had financial commitments. The Tribunal concluded that there would be no adverse impact on the public interest if a stay was granted, given that a hearing was imminent.

Accordingly, the Tribunal decided to stay the disciplinary decision of the Respondent made on 13 May 2013 until further order of the Tribunal. This meant that the 12-month disqualification imposed on Mr Missen would not take effect until the review application was determined. The Tribunal’s decision was based on a careful consideration of the relevant factors and the potential impact of granting or refusing the stay on the parties and the public interest.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established