Mitchell v Racing Queensland Limited
[2011] QCAT 160
•4 May 2011
| CITATION: | Mitchell v Racing Queensland Limited [2011] QCAT 160 |
| PARTIES: | Mr Phillip Mitchell |
| v | |
| Racing Queensland Limited |
| APPLICATION NUMBER: | OCR034-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member William LeMass, Adjudicator |
| DELIVERED ON: | 4 May 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of the Respondent of 14 February 2011 that the Applicant breached Australian Harness Racing Rule 243 be set aside. 2. That the penalty imposed for the breach of Australian Harness Racing Rule 247 of 9 months disqualification be set aside. 3. For breach of Australian Harness Racing Rule 247 the Applicant be fined the sum of $2,000.00 and to be paid by 30 June 2011. |
| CATCHWORDS: | Racing – whether evidence establishes applicant’s breach of Australian Harness Racing Rule 243 – where respondent alleges specific words used by applicant resulting in conduct prejudicial or detrimental to the industry – where applicant denies that the specific words were said – where evidence of complainant not corroborated by independent witnesses – standard of proof Penalty – breach of AHRR 247 – where applicant disqualified from holding a trainers licence for 9 months – whether penalty excessive and out of line with comparative penalties – where monetary penalty appropriate Queensland Civil and Administrative Tribunal Act 2009, s 20 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Applicant Philip Mitchell represented by Mr Murdoch SC |
| RESPONDENT: | Racing Queensland represented by Mr Orchard, solicitor for the respondent |
REASONS FOR DECISION
The applicant is a licensed harness racing trainer. On 23 February 2011 Mr Mitchell was charged with two breaches of the Australian Harness Racing Rules. The first charge was in respect of a breach of Rule 243 which provides:
“A person employed, engaged or participating in the harness racing industry shall not behave in a way which is prejudicial or detrimental to the industry.”
The particulars of that charge are that during a race meeting at Albion Park on 1 January 2011 he made a comment detrimental to the harness racing industry in that he said in a public grandstand, “racing at Albion Park is corrupt”. To that charge he pleaded not guilty when brought before the stewards.
He was also charged with a breach of rule 247 which provides:
“A person attending before the Controlling Body its members or employees, the stewards, officials or at any proceeding under these rules, shall not speak or behave in a malicious, intimidatory or otherwise improper manner.”
The particulars of that charge are that at an interview with Mr Knibbs, Chief Steward of Harness Racing, Mr Mitchell made improper comments in particular, comments about high level corruption and, further, that certain persons within the harness racing industry are “koala bears”, that is, a protected species.
To that charge, he pleaded guilty when brought before the stewards. However, in the hearing before this Tribunal about the penalty imposed, Mr Mitchell denied that he used the words “high level corruption” in his conversation with Mr Knibbs.
In respect of the breach of Rule 243 the Stewards found him guilty and disqualified him from holding a trainer’s license for a period of six months.
On the breach of Rule 247, the Stewards imposed a penalty of nine months disqualification from holding a trainer’s license. The disqualification periods were imposed concurrently.
Mr Mitchell has applied to this Tribunal for a review of both the conviction and penalty of the breach of Rule 243, and the penalty imposed in respect to breach of Rule 247.
The purpose of the review of a reviewable decision is to produce the correct and preferable decision.[1] In doing so, the Tribunal must hear and decide the review by way of a fresh hearing on the merits.[2] As the Deputy President said in Kehl v Board of Professional Engineers of Queensland[3] the Tribunal is not required to identify error in either the process or the reasoning that lead to the original decision being made. Further, there is no presumption that the original decision is correct and that here, Mr Mitchell does not need to demonstrate any error on the part of Racing Queensland in coming to the decision it did.
[1] QCAT Act, s 20.
[2] QCAT Act, s 20(2).
[3] [2010] QCATA 58.
[10] The allegation against Mr Mitchell in respect of the breach of Rule 243 is that, after the completion of Race 6 on the evening of 1 January 2011, he was remonstrating with a number of people in the grandstand about the result. The owner of the horse that won the race, Mr Kevin Seymour, walked past Mr Mitchell as he was expressing his views about the race and, according to Mr Seymour, Mr Mitchell:
“Launched a tirade of abuse at the top of his voice to people who were around the area that Albion Park was corrupt; no wonder why people don’t come to the races; you only had to look at that last race and – he kept pointing his abuse at me.”
[11] Mr Seymour made a complaint in writing to Racing Queensland the following day. In response to that complaint, Racing Queensland appointed Mr Hackett to undertake an independent investigation into the complaint. Mr Hackett conducted interviews with not only Mr Seymour and Mrs Seymour who corroborated Mr Seymour’s statement, but also other persons who were with Mr Mitchell at the time.
[12] An enquiry was convened on 23 February 2011 where Mr Seymour gave similar evidence to the enquiry as that contained in his statement, and in particular, said:
“THE CHAIRMAN: The alleged comments, can you just elaborate on those?
MR SEYMOUR: Yes. In a very loud voice so that everyone else could hear, he made the comment “Racing at Albion Park is corrupt; no wonder people are not coming back to the track. Look at this race tonight. Dickson always leads and he handed up to your horse.” There were things I distinctly heard. I think there were quite a few other comments he was making which I wasn’t clear on. I did hear someone in the background sing out “Phil! Steady down, steady down. Cut it out.” They were comments. I don’t know who made those comments. But I was very concerned for my wife.”
[13] Mr Mitchell categorically denied making the comment that “racing at Albion Park is corrupt” both to Mr Hackett and to the inquiry.
[14] When Mr Seymour’s allegations were put to Mr Mitchell, and when asked whether he refuted those comments, he replied:
“Absolutely. Absolutely there were words said. There wasn’t a barrage. There wasn’t any aggression. There wasn’t anything at all. It was merely – there was one – on words spoken to Kevin Seymour, the rest of the time he walked in front of me. And I had people walking with me.”
[15] The stewards ultimately accepted that the comments were made and relied in particular, on the corroborative evidence from Mr Fairley who was with Mr Mitchell’s group of people.
[16] In circumstances where there is a specific denial of the allegation made as to the words said by Mr Mitchell, it is necessary to consider what other evidence was available to support a finding that Mr Seymour’s evidence should be accepted with the consequence that the charge would be proved.
[17] In considering the evidence of the independent witness who gave evidence at the inquiry, in particular Mr Fairley whose evidence the stewards relied upon, it is difficult to conclude that those words alleged were said by Mr Mitchell. Mr Fairley said that he heard Mr Mitchell, “yelling at Kevin and Kay” (Seymour) saying words to the effect that they were running the game and no one else could complete unless they wore black and white. He was even a little unsure about that. The reference to black and white was the colours of Mr Seymour’s trainer, Bill Dixon.[4] The stewards asked Mr Fairley quite specifically whether he heard words to the effect that “racing at Albion Park was corrupt” to which Mr Fairley replied that he did not hear those words. He did say that he also heard Mr McCall, who was with Mr Mitchell say, “we are all sick of it”.
[4] Transcript page 38 line 25.
[18] Interestingly, he was in close proximity to Mr Mitchell to clearly hear what he said as he was “virtually right next door to them” that is, the Seymour’s when Mr Mitchell made the comments. He also said the comments made by Mr Mitchell could not have been directed to anyone else but the Seymours. Mr Fairley’s evidence must be considered in the context of Mr Seymour’s evidence that Mr Mitchell made the comment in “a very loud voice so that everyone else could hear”.
[19] To be clear, the stewards asked Mr Fairley to repeat what words he heard Mr Mitchell say and again Mr Fairley said the words were to the effect that, “the Seymour’s were running the game and no one else could compete unless they wore black and white.”[5] There was no mention of Albion Park being corrupt or similar words. Mr Fairley’s evidence is not corroborative of Mr Seymour’s evidence as to the words used by Mr Mitchell. Mrs Seymour’s evidence is but her evidence cannot be regarded as truly independent because she, like Mr Seymour, is a complainant.
[5] Transcript page 40 line 5.
[20] Mr McCall, who was with Mr Seymour also gave evidence at the enquiry and he was also asked whether Mr Mitchell said words to the effect that “racing at Albion Park was corrupt no wonder people do not come to the races”. He said that he did not hear the content of the conversation. It seems that he was also in sufficient proximity to Mr Mitchell to hear the words if they were said.
[21] There was no other credible testimony from other witnesses to support the evidence of the Seymours. In fact, Mr Wechsel, who was also in the group, says that he heard the words “corrupt” directed to the Seymours but that came from a person in the crowd and not Mr Mitchell.
[22] There was a general consensus from all the independent witnesses called to the inquiry that there was a lot of noise from the crowd at the end of the race that is, yelling and booing by the punters about the result. It is not contested that there was general unhappiness amongst those in the grandstand.
[23] Mr Mitchell was obviously very upset and agitated at the conclusion of the race. Mr Knibbs saw him remonstrating and being “vociferous” about the race result. Mr Knibbs then approached him outside the stewards room where he alleges that Mr Mitchell said words to the effect that “what do you have to do to get a go in this sport and that this sport is being put on just for one stable”.
[24] As they walked into the stewards room Mr Knibbs alleges that Mr Mitchell used the words “this is just high – level corruption, you working with Seymour”. Mr Knibbs asked Mr Mitchell to calm down and when in the stewards room he turned on the tapes and recorded the interview.[6] Mr Knibbs made a contemporaneous note of this conversation.
[6] Transcript of proceeding at Albion Park 1 January 2011.
[25] The allegations made against Mr Mitchell are that, in the public domain he said that racing at Albion Park was corrupt, are serious allegations and if found to be made out would constitute a breach of AHR 243. The penalty imposed of disqualification of his trainer’s licence is significant which would cause substantial financial hardship both to Mr Mitchell and those under his employ. Therefore, to prove such an allegation there is a higher onus on Racing Queensland to satisfy this Tribunal, in hearing the matter afresh, that the charge has been proved to its reasonable satisfaction.[7]
[7] Briginshaw v Briginshaw [1938] 60 CLR 360 at 362.
[26] Two important pieces of evidence emerge which put in question whether Mr Mitchell said the words alleged, which constitute the particulars of the breach of the Rule. Firstly, that he was alleged to have said the words in such a loud voice so that the people in the vicinity of the Seymours and others around Mr Mitchell must have heard what was said. Yet, it was only Mr Seymour who heard the words. If those words had been said by Mr Mitchell one could reasonably expect Mr Fairley and Mr McCall and Mr Weschel would have heard the words and would have given evidence to that effect.
[27] Secondly, to support their findings that Mr Mitchell said the words alleged, the stewards relied on Mr Fairley’s evidence when it is clear from the transcript that his evidence is not corroborative of Mr Mitchell making the statement that “racing at Albion Park is corrupt”.
[28] A third consideration, but of lesser importance, is that the grandstand crowd was generally quite upset and vocal and the word “corrupt” could have come from any other member of the public disappointed with the race, as attested to by Mr Weschel.
[29] There is no doubt that Mr Mitchell was very upset and made remarks directly to Mr Seymour. But given the seriousness of the charge and its consequences if proved one has to be very careful to examine all of the evidence to ensure that there is probative evidence to support it. Not only is the evidence lacking in support of Mr Mitchell saying the words alleged, there is independent evidence contradictory to it from Mr Fairley.
[30] In our view, when considering the matter afresh, the respondent has not satisfied this Tribunal to the requisite standard that Mr Mitchell used the words “racing at Albion Park is corrupt”. We accept the submissions of Mr Murdoch and accordingly the review application will be allowed and the decision of the stewards set aside.
[31] As for penalty in respect of the breach of Rule 247 we consider the penalty imposed to be excessive.
[32] We have been given a number of comparative decisions by stewards, all of which support the imposition of a monetary penalty only.
[33] We also have some concern that even though the transcript shows Mr Mitchell was quite critical of the racing rules his criticism was in the nature of a complaint rather that accusing the stewards of any specific wrongdoing. Mr Mitchell was obviously very upset with the circumstances of the race and basically expressed his views in a frank and forthright manner to Mr Knibbs in private, as one could reasonably assume he was entitled to do as a stakeholder in the industry. On reflection Mr Mitchell recognises that he could have complained in a more judicious manner rather than in the heat of the moment. The transcript also reveals that as the conversation with Mr Knibbs continued it became more constructive and collaborative when discussing the rule which permitted a trainer/owner to have more than one horse in the race.
[34] We consider this indiscretion on the part of Mr Mitchell warrants a monetary penalty only and we propose to set aside the stewards’ decision imposing the period of disqualification and impose a monetary penalty of $2,000.00[8] consistent with the comparative decisions[9].
[8] To be paid by 13 May 2011.
[9]Petroff v Queensland Harness Racing Board RH003-07 (18 July 2007); Katsidis v Queensland Racing RT026-06 (11 January 2007); Schedule of Penalties imposed between 22.3.2000 and 22.3.2011.
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