Oliver v Queensland Racing Integrity Commission - [2017] QCAT 50

CITATION:	Oliver v Queensland Racing Integrity Commission [2017] QCAT 50
PARTIES:	Joshua Oliver (Applicant)
v
Queensland Racing Integrity Commission (Respondent)
APPLICATION NUMBER:	OCR189-16
MATTER TYPE:	Occupational regulation matters
HEARING DATE:	24 November 2016 and 30 January 2017
HEARD AT:	Brisbane
DECISION OF:	Member Browne
DELIVERED ON:	20 February 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	1. The original decision of the Queensland Racing Integrity Commission made on 20 September 2016 that Apprentice Joshua Oliver is guilty of a charge pursuant to Rule 135(b) of the Australian Rules of Racing and that a penalty of one (1) month suspension be imposed is set aside and the following decision is substituted: a) Apprentice Joshua Oliver is not guilty of a charge pursuant to Rule 135(b) of the Australian Rules of Racing for Race 3 at Doomben Racecourse on 10 September 2016.
CATCHWORDS:	PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – Thoroughbred Racing – Apprentice Jockey –where the applicant has been found guilty of a breach of Rule 135(b) of the Australian Rules of Racing – whether charge is substantiated on review – whether rider of the horse took all reasonable and permissible measures Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19, s 20, s 24 Racing Integrity Act 2016 (Qld), s 240, s 246, Schedule 1 In the matter of Jockey: Damian Browne, unreported, Queensland Racing Disciplinary Board, 18 March 2014 In the matter of Licensed Jockey Chris Munce, unreported, Racing Appeals Tribunal of New South Wales, 5 June 2003 Briginshaw v Briginshaw (1938) 60 CLR 336 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 Racing Queensland Ltd v Cassidy [2012] QCAT 31 Radecker, MS v Queensland Racing [2008] QRAT 4
REPRESENTATIVES:
APPLICANT:	Joshua Oliver represented by Mr J E Murdoch of Queens Counsel instructed by O’Connor Ruddy & Garrett Solicitors
RESPONDENT:	Queensland Racing Integrity Commission represented by Mr W Kelly, in-house counsel

REASONS FOR DECISION

On 10 September 2016, apprentice jockey Joshua Oliver rode a thoroughbred horse ‘Black Jag’ in Race 3 at Doomben Racecourse over a distance of 2200 metres.
Mr Oliver was completing the fourth year of his apprenticeship. He would be eligible to apply to become a senior jockey in mid-December 2016.
Another apprentice jockey, Bridget Grylls, was riding a thoroughbred horse ‘Ranked’ in the same race. Ms Grylls was also completing the fourth year of her apprenticeship.
The horses Black Jag and Ranked finished last and second last respectively after leading the race for most of the distance.
The stewards watching Race 3 opened an inquiry into the riding tactics adopted by Mr Oliver and Ms Grylls. The stewards found Mr Oliver and Ms Grylls guilty of a charge pursuant to Rule 135(b) of the Australian Rules of Racing. Rule 135(b) provides as follows:
The rider of every horse shall take all reasonable and permissible measures throughout the race to ensure that his horse is given full opportunity to win or to obtain the best…

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: [2017] QCAT 50
Decision Date: 20 February 2017

CaseChat Overview and Summary

In the matter of Oliver v Queensland Racing Integrity Commission, the applicant, an apprentice jockey, challenged a disciplinary decision made by the Queensland Racing Integrity Commission. The Commission found the applicant guilty of a breach of Rule 135(b) of the Australian Rules of Racing, which relates to the use of the whip during a race. The applicant was issued a one-month suspension as a penalty. The applicant sought a review of this decision, arguing that the charge was unsubstantiated and that the rider of the horse took all reasonable and permissible measures.

The central legal issue before the court was whether the charge against the applicant was substantiated on review. This involved examining whether the rider of the horse, Black Jag, took all reasonable and permissible measures to comply with the rules and whether the horse's performance could be attributed to factors other than the rider's actions. Specifically, the court had to determine if the horse's soreness in the near fore fetlock, as diagnosed by a veterinary surgeon, influenced the horse's performance and if this could be considered in the assessment of the rider's conduct.

The court considered the evidence presented, including the testimony of Mr Daily, who provided insights into the horse's preferred racing tactics, and the veterinary examination report by Dr Lenz. Dr Lenz's evidence was pivotal, as he concluded that Black Jag was slightly sore in the near fore fetlock, which could affect the horse's performance. The court found that the rider's actions, including the brief change in the leading leg, were within permissible limits and did not substantiate the charge against the applicant. The court also noted that the rider's decision to sit up and potentially alleviate pressure on the horse could be seen as a reasonable measure taken in the circumstances.

The court set aside the original decision of the Queensland Racing Integrity Commission and substituted it with a decision that the applicant was not guilty of the charge. Consequently, the one-month suspension imposed on the applicant was also set aside.

Orders

Orders of the court

1. The original decision of the Queensland Racing Integrity Commission made on 20 September 2016 that Apprentice Joshua Oliver is guilty of a charge pursuant to Rule 135(b) of the Australian Rules of Racing and that a penalty of one (1) month suspension be imposed is set aside and the following decision is substituted:

a) Apprentice Joshua Oliver is not guilty of a charge pursuant to Rule 135(b) of the Australian Rules of Racing for Race 3 at Doomben Racecourse on 10 September 2016.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It is Mr Daily’s evidence that the riding tactics employed by Black Jag’s riders show that the horse ‘performs best when allowed to sit pace/lead’ and make the race a ‘test of stamina’.[41] Mr Daily did not attend the race but stated in giving his oral evidence that he viewed the race footage. Mr Daily stated that the track played out as if it was a rating five and that this is a firmer track than the track rating on the day that is a soft seven.[41]Exhibit 8.The evidence of Dr Lenz Dr Lenz examined Black Jag after the race and recorded ‘SL. Sore N/F Fetlock’ on the horse incident/examination report completed by him after the race.[42] [42]Exhibit 7, Horse Incident/Examination Report. At the hearing, Dr Lenz gave oral evidence about his examination. He stated that the ‘near front fetlock’ is a vital part of the anatomy of a galloping horse and slight soreness may well have been felt by Black Jag in the race. Dr Lenz stated that it is apparent from the race footage that Black Jag is leading on the right foreleg that is the opposite leg to where he found pain. Dr Lenz stated that there is a brief change to Black Jag’s leading leg which is ‘common’ and he would expect the leg to be tired so the horse briefly changes back (to the other leg) and this coincides with the rider (Mr Oliver) sitting up. Dr Lenz stated that his finding of pain on flexion would not be ‘out of the ordinary’ given the age of Black Jag, stating that there are not too many eight-year-old horses that are still racing. Dr Lenz also stated that the Chief Steward in charge of the race meeting requested that he examine Black Jag after the race because (as he was told) the horse performed below expectation. During cross-examination, Dr Lenz stated that he recorded on the examination card after the race that Black Jag was ‘slightly sore [in the] near fore fetlock’ and stated that he is referring to the joint and that there was soreness on flexion and no lameness. Dr Lenz accepted when questioned that the area of soreness being the near front fetlock is a vital part of the anatomy of a galloping horse. When questioned about the leg that will take the load at a particular part of the galloping sequence, Dr Lenz stated that only the leading leg takes the full weight and quite often there is a change in stride. Dr Lenz stated that Black Jag led in Race 3 on the right foreleg and only changed running position to the near foreleg in the last 100 metres when the jockey (Mr Oliver) was inside the post ‘sitting up’. When questioned, Dr Lenz accepted that if a horse has soreness in one of its front joints, it will favour it meaning it will not want to lead with it (the sore leg). Dr Lenz stated that in Queensland the horses race in a clockwise direction so the horses tend to favour the right foreleg and if the horses tire they will change legs. When questioned about whether the non-leading leg still bears significant pressure but not as much when the horse in racing, Dr Lenz stated obviously much less significant pressure.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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