Morris v Racing Queensland Ltd
[2014] QCAT 76
| CITATION: | Morris v Racing Queensland Ltd [2014] QCAT 76 |
| PARTIES: | Jackson Peter Morris (Applicant) |
| v | |
| Racing Queensland Limited (Respondent) |
| APPLICATION NUMBER: | OCR007-14 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 20 February 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Oliver Member Allen |
| DELIVERED ON: | 13 March 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the respondent dated 16 January 2014 is set aside. |
| CATCHWORDS: | Racing – where applicant jockey failed to weight in within the tolerance under rule 143 of the Australian Rules of Racing – whether the scales used for the weighing sufficiently accurate within tolerances – where experts differed on accuracy of scales – where scales not accurate within tolerances – whether applicant blameworthy for weight differential – where loss of weight through dehydration – where extreme weather conditions. Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20 Kehl v Board of Professional Engineers of Qld [2010] QCATA 58 Wallace v Racing Queensland [2007] QDC 168 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Represented by Mr O’Sullivan of O’Sullivan Saddington Lawyers |
| RESPONDENT: | Mr Brown, Steward of Racing Queensland Ltd. |
REASONS FOR DECISION
Mr Morris was the jockey on Mishani Gladiator in race 4 at the Beaudesert Race meeting held on 28 December 2013. Mr Morris was required to carry 60 kilos in the race. When he weighed out for the race his weight was recorded at 60kgs. After the race, he weighted in at 59.38kgs.
The Australian Rules of Racing allows for a 500 gram weight differential. Mr Morris exceeded this allowance by 120 grams. As a result the horse was disqualified and Mr Morris was disciplined under Rule 143 of the Australian Rules of Racing and suspended for one month. The Rule provides:-
“If a horse carries less weight than the weight it should carry:-
(a) it shall be disqualified from the race, provided that a rider shall be allowed by the Clerk of the Scales a half kilogram for the weight of his bridle; and
(b) Not withstanding (a), the rider and/or any person at fault may be penalised.
Having been penalised Mr Morris appealed to the Racing Disciplinary Board. The appeal was dismissed.
Mr Morris then applied to the Tribunal to review the decision of the Stewards by an application filed on 17 January 2014. Pending the determination of the review application the Stewards decision was stayed.
The Tribunal’s function on a review application is to produce the correct and preferable decision by way of a fresh hearing on the merits.[1] Because this is an administrative review proceeding, the Tribunal’s function is to review the decision, not the process by which it was arrived at nor the reasons given for making it. Accordingly, the Tribunal is not required to identify an error in either the process or the reasoning that led to the decision being made. There is no presumption the original decision is correct.[2]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20.
[2]Kehl v Board of Professional Engineers of Qld [2010] QCATA 58 at paragraph 9.
The evidence that has been put before this Tribunal is the transcript of the Stewards inquiry which contains the evidence to substantiate the charge as well as further evidence that was put before the Racing Disciplinary Board, in particular, that of Mr Brown, the chief steward on the day and Mr Coetzee. Mr Coetzee is from Accuweigh, an organisation that conducts tests on scales. He performed tests on the scales, described as AND CK-150k, used to weigh Mr Morris.
The applicant contends that the correct and preferable decision here is to set aside the decision of the Stewards on two bases. Firstly, that the scales used to weigh Mr Morris were inaccurate and the results could not be relied on, and secondly, if the Tribunal is not satisfied that the scales were inaccurate then the penalty should be set aside because no blame worthiness could be attributed to Mr Morris, in all the circumstances, for the discrepancy in the weight.
Was Mr Morris’ conduct blameworthy?
The race meeting at Beaudesert was held on an extremely hot day. The records indicate that the temperature at 3pm in the afternoon was 39.6 degrees celsius with a very light west north westerly breeze of seven knots. Mr Morris had ridden earlier in the day having mounts in races 1 and 3. The weight that is recorded for race 3 is 56.98kgs and for the fourth race, he was required to carry the weight of 60 kilos. To achieve this, Mr Morris said that he hydrated using water only to get his weight up to 60kgs; this is not challenged by the Stewards. Although it might seem unusual jockeys are extremely adept at loosing weight and gaining weight as the circumstances require.
Because of the weather conditions Mr Morris told the Stewards, and we accept, that he lost a considerable amount of fluid from the time that he came off the scales, gathered his horse, rode out to the starting barrier and then conducted the race and came back for the weigh in. He told the Stewards, and again we accept, that he did not carry any extra weight other than his saddlery components and his normal riding gear. There is no suggestion by the Stewards that the cause of the loss of weight was for any other reason. Therefore, we are satisfied that Mr Morris was required to increase his weight for the race, he did this through hydration, and given the extreme heat conditions on the particular day, the loss of 620 grams from the time that he weighed out could have been as a result of dehydration if the scales were accurate. Although Mr Morris said he only drank a cup or two of water, to increase weight, he still weighed out at 60kg.
Therefore, even if the charge against Mr Morris were to be maintained it is difficult to see how he could be blamed for the loss of weight which put him outside the tolerances in the circumstances. Those circumstances include the Stewards knowledge that jockeys gain weight through hydration and taking into account the effects of the extreme weather conditions. In Wallace v Racing Queensland,[3] His Honour Judge McGill said:-
“Cases were the trainer was able to show a specific explanation which did not involve any blame worthiness on his part are really examples of the situation where the trainer has for the purposes of penalty been able to show a mitigating circumstance. It may well be appropriate for such cases to be treated more leniently than what might be described as the ordinary case, where there is no explanation for the elevated reading, and therefore no indication as to whether or not there is any personal blame worthiness on the part of the owner.”
[3][2007] QDC 168.
We see no reasons why this statement should not apply in this case where, although Mr Morris may have been in technical breach of Rule 143(b), the discretion to penalise should be considered having regard to the fault if any on the part of Mr Morris.
It is said against Mr Morris that he should have been more cautious knowing that he was going to loose some of the weight as a result of the ride but there was no evidence to suggest that the extent of the loss would be as much as it in fact was. In these circumstances we do not consider that Mr Morris was in any way blameworthy for the breach of the rule.
Were the scales inaccurate?
Mr Morris, and all other jockeys, owners and connections, and the general public are entitled to have confidence in the equipment used by Racing Queensland even at provincial race tracks. It is not challenged that on the day of the races there were complaints made by jockeys about the scales. Mr Brown, the Chief Steward on the day, acknowledges this[4] but said:
“There was never any suggestion that they were under. Just that they may have been over, ranging from – in a range between 20 and 40 grams – 0.2, 0.4 of a kilo. I don’t recall any conversation about going to get some weights to test them.”
[4]Transcript page 7 line 25.
Mr Morris complained about the scales on the day and during the course of the inquiry with the Stewards. He raised the issue of the scales in his evidence before the disciplinary Board.
Realizing that the accuracy of the scales might be a contentious issue, Racing Queensland had the scales tested by Australasian Scales Pty Ltd on 30 December 2013. That report shows some differential to the recorded weights on the corners of the scales and when tested at various weights.
The scales were again checked soon after on 6 January 2014 by Accuweigh QWM. Interestingly on the second test there was a differential in weights to the test conducted by Australasian, in particular a differential in the recorded weight of 250 grams on the second corner. There was also a difference in the calibrations at weights of 20kg, 40kg, 100kg but most markedly at 150kg.
Because of this, the test results were given by Mr Morris’s legal representative to Mr Rodney Mace of Newcastle Weighing Services Pty Ltd to comment. He has provided two reports, the first of 28 January 2014 and the second of 17 February 2014. The scales used are described as AND CK-150k. Mr Mace comments that there are two types of scales; trade scales and non-trade scales. All trade scales must be calibrated in accordance with the National Measurement Institute Australian Government (NMI) Procedures which is documented in “NITP 6.1 to 6.4 National Instrument Test Procedures for non automatic weighing instruments”. Mr Mace says that the NMI procedure is not mandatory for non trade scales. However it is the preferred method to be applied to test all scales for accuracy.
We should say at this point Mr Jeffrey Kenyon, a director of Measuretron (Qld) Pty Ltd, also provided a report at the request of Racing Queensland. He did not directly dispute Mr Mace’s evidence but qualified it by saying that the NMI Procedures would be adopted according to the particular circumstances of the case meaning that the full testing procedure may not necessarily be used.
In any event, Mr Mace considered both the reports from Australasian Scales and Accuweigh and said:-
“If you compare the two reports that were carried out 7 days apart it shows that both reports have different weight readings across the weight range. For example, no single corner test shows a repeatable reading the same as the other report. The weight readings on Accuweigh report show at 100kgs = 99.94 / 150kgs = 149.88 whereas the Australasian report it shows 100kg = 100.00 / 150kg = 149.96. These differences are of particular importance as it clearly demonstrates that the scale is not consistent and fails to repeat the weights accurately.
Mr Mace attached a copy of the manual for the model CH-150KP to his report and commented that scales of this type should not be used in direct sunlight because if the temperature exceeds 40 degrees the accuracy could be affected. Similarly, when transporting the scales they should be mechanically locked at the “load cell to prevent excessive vibration to the load cell area and should a Guarantee of accuracy be required, the scales should be tested with certified test masses at the location of use”. It is uncontested here that the scales travelled from Deagon to Beaudesert in the boot of a car. It is suggested that the scales should be mechanically locked for travel. There is no evidence that occurred here, and the inference to be drawn from the evidence is that they were not.
In Mr Mace’s opinion, the scale “was not accurate and it would be reasonable to say that an error that at least 0.12kg may have applied to the scales at the relevant time being 28 December 2013. The basis for my advice is that inconsistency between the two different reports over a seven day period and the weight readings recorded on both reports which clearly indicated that the scale was outside industry accuracy standards on the dates of inspection.”
Mr Kenyon although generally agreeing, said that as the subject scales are a non trade scale the NMI procedures did not strictly apply. Even if they did, Mr Kenyon was of the opinion that the scales would still fall within recognised tolerances because the procedures allows for a maximum error of 20 grams which were reported in the 50kg to 100kg range. He said:-
“As the CH-150K only measures in 20 gram increment it is also possible that the 60 gram error at 100kg reported in the Accuweigh report falls inside the maximum permissible error. As the CH-150K scale does not weigh in 50 gram increment it is impossible to identify that this error has definitely fallen outside the maximum permissible error for approved scales.”
Mr Mace challenges Mr Kenyon’s report and says that even though this scale weighs in 20 grams increment the size of the error is still outside recognised tolerances. In addition, this does not take into account any further inaccuracy as a result of the temperature as well as the method of transportation of the scales.
We were impressed with Mr Mace’s consideration of this matter and his knowledge and prefer his evidence to that of Mr Kenyon. We would repeat that Mr Kenyon was also of the opinion that if there was any contest as to the accuracy of the scales then that is best determined by reference to the NMI procedures irrespective whether they are trade scales or non trade scales.
We are therefore satisfied that these scales were not accurate. Having made that finding, it seems to us immaterial the extent of the discrepancy whether it is 120 grams outside the tolerance of 500 grams or not.
Mr Morris was found to be in breach of Rule 143 on the basis of the scale readings. If the scale readings are as a result of the use of scales which are not accurate then one can not be satisfied to the appropriate standard[5], given the consequences of such a breach, that the decision of Racing Queensland should stand. We have therefore come to the conclusion that the correct and preferable decision in these circumstances is to set aside the decision of Racing Queensland. Even if we were satisfied that the scales were accurate, we would not impose a penalty because we cannot see that Mr Morris’s conduct could be said to be blameworthy in the circumstances.
[5]Briginshaw v Briginshaw (1938) 60 CLR 336.
Finally we would observe that it is not unreasonable to expect that given the importance of the correctness of weights in the industry, the scales used by Racing Queensland should be properly serviced and maintained and used in accordance with industry standards to ensure accuracy. This would include the manner of transporting the scales and their regular calibration so they could not be subject to criticism.
Therefore, the decision of the Tribunal is that the decision of Racing Queensland dated 16 January 2014 is set aside.
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