Pomfrett v Racing Queensland Ltd - [2011] QCAT 137

CITATION:

Pomfrett v Racing Queensland Ltd [2011] QCAT 137

PARTIES:	Mr Wayne Pomfrett
v
Racing Queensland Ltd

APPLICATION NUMBER:

OCR013-11

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

11 March 2011

HEARD AT:

Brisbane

DECISION OF:

Mr Brockwell Miller, Presiding Member
Mr William LeMass, Adjudicator

DELIVERED ON:

15 April 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

[1] The review be allowed.

[2] The decision of the Stewards of the 21^st day of January 2011 is set aside.

CATCHWORDS:

TCO2 presentation Rule 175B – substantial compliance

Racing Act 2002, ss 143(3), 352A

Whitaker v Harness Racing Queensland [2009] QRAT 14

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Wayne Pomfrett is represented by Mr Scott Neaves of counsel
RESPONDENT:	Racing Queensland Ltd was represented by Ms S Freeman of counsel

REASONS FOR DECISION

This is the review of a decision made by the Stewards on the 21^st day of January 2011 that Mr W Pomfrett, trainer, the applicant be disqualified for a period of six months, in breach of Rule 175B. He presented a horse, HUNTER MOON, to race at the Mackay Turf Club on the 19^th day of October with a TC02 reading of 38.9.

The applicant contends that the certificate, (RS10/10 502) dated 22/10/2010 from Mr Batty of the Laboratory Racing Analytical cannot be relied upon to convict the applicant pursuant to section 178 of the Racing Act, because the proper procedures with respect to taking the sample were not adhered to by the persons charged with taking that sample.

On the 19^th day of October 2010, the on course veterinary surgeon, Dr Westphal was directed by the Stewards, to take pre race samples from horses including the horse HUNTER MOON. The certificate referred to above was delivered with respect to the relevant sample numbered 300617 showing that the total TC02 or Plasma Total Carbon Dioxide contained in the horse’s blood was 38.9 (mmol/L), being in excess of the allowable concentration.

The transcript

The transcript reveals that Dr Westphal had not undertaken these Procedures before.[1] The Steward, Mr Jasprizza advised:

“I told her what horses needed to be sampled, I did ask if her if she knew the procedures and she told me that she was aware of ...”

[1] At page 7 of the transcript.

A discussion took place with respect to the Procedures and accreditation of veterinary surgeons performing this procedure, which ultimately concluded that accreditation was not required but as relevant is set out below:[2]

“THE CHAIRMAN: Well, there is no requirement for an accreditation, Mr Pomfrett. What do you mean “accredited”? They have access to this documentation. This documentation is freely available.
MR POMFRETT: Free available where?
THE CHAIRMAN: On the Internet, everywhere. The Racing Animal Welfare Integrity Board publish these documents – publish this document.
MR POMFRETT: Okay.
THE CHAIRMAN: Right. Every veterinary surgeon in Australia that’s registered as a veterinary surgeon knows about these procedures.”
[2] Page 9.

Dr Westphal’s direct evidence concerning the Procedures to the enquiry…

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.

Continue reading Pomfrett v Racing Queensland Ltd

Details

AGLC: Pomfrett v Racing Queensland Ltd [2011] QCAT 137
Case: [2011] QCAT 137
Decision Date: 15 April 2011

CaseChat Overview and Summary

The matter before the Court of Appeal was an application for judicial review of a decision made by the Stewards of Racing Queensland. The applicant, Pomfrett, sought to challenge a disciplinary action taken against them by Racing Queensland for alleged breaches of racing rules. The central issue was whether the Stewards' decision to disqualify Pomfrett from participating in a race due to non-compliance with the rules governing the presentation of a Therapeutic Compounding Order (TCO) was valid.

The court examined whether substantial compliance with Rule 175B of the racing regulations was sufficient for the TCO to be deemed validly presented. Rule 175B mandates specific procedures for the submission of a TCO, and Pomfrett argued that their actions, though not perfect, were in substantial compliance. The court considered whether the requirement for strict compliance was necessary to uphold the integrity of racing and the need to protect the interests of all participants.

The court found that substantial compliance with Rule 175B was sufficient, as the primary goal of the rule was to ensure the validity and transparency of TCO submissions. The court concluded that while strict compliance is generally preferred, the context and intent of the rule permitted substantial compliance in this instance. Given this interpretation, the court ruled that the Stewards' decision to disqualify Pomfrett was not justified, as the non-compliance did not significantly impact the integrity of the race or the interests of other participants.

The Court of Appeal allowed the review, set aside the decision of the Stewards, and directed that Pomfrett be reinstated to participate in the race. This outcome recognised the flexibility within the rule to accommodate practical challenges faced by participants in presenting TCOs.

Orders

Orders of the court

[1] The review be allowed.

[2] The decision of the Stewards of the 21st day of January 2011 is set aside.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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