Queensland Racing and Integrity Commission v Kunde - [2017] QCATA 133

CITATION:	Queensland Racing and Integrity Commission v Kunde [2017] QCATA 133
PARTIES:	Queensland Racing and Integrity Commission (Appellant)
v
Tracy Kunde (Respondent)
APPLICATION NUMBER:	APL419-16
MATTER TYPE:	Appeals
HEARING DATE:	11 August 2017
HEARD AT:	Brisbane
DECISION OF:	Member Allen Member Traves
DELIVERED ON:	14 December 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	IT IS THE DECISION OF THE TRIBUNAL THAT: 1. The appeal in respect of grounds 1, 2 and 3 is dismissed. 2. Leave to appeal is refused in relation to grounds 4 and 5.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – whether error of law in original tribunal decision GAMING AND LIQUOR – ADMINISTRATION – RACING – RACING COMMISSIONS, BOARDS AND TRIBUNALS – GREYHOUND RACING – Rules of Greyhound Racing – interpretation – whether omission to report requires first a correlative duty to report – whether an error to import “tests” from the criminal law – whether misapplication of strictness of proof principles in Briginshaw v Briginshaw – whether error to interpret rule to require direct knowledge of the matter omitted to report Greyhound Australasia Rules, rule 3, rule 86(q) Racing Act 2002 (Qld), s 4, s 91, s 111, s 112, s 149S, s 152A Arnold v Racing Queensland [2015] QSC 293 Briginshaw v Briginshaw (1938) 60 CLR 336 Commonwealth Director of Public Prosecutions v Poniatowska [2011] HCA 43 He Kaw Teh v The Queen (1985) 157 CLR 523 Racing Victoria Limited v Kavanagh [2017] VSCA 334 Riley v Racing Victoria Ltd [2015] VSC 527 Wallace v Queensland Racing [2007] QDC 168
APPEARANCES AND REPRESENTATION:
APPELLANT:	Mr J Horton QC and Mr D Purcell of Counsel instructed by Clayton Utz Lawyers
RESPONDENT:	Ms S McGee of Counsel instructed by Levitt Robinson Solicitors

REASONS FOR DECISION

This is an appeal from a decision of the Tribunal on 15 November 2016 setting aside:
a)the decision of the Racing Disciplinary Board of 25 November 2015; and
b)the original decision by the Queensland All Codes Racing Industry Board (now the Queensland Racing and Integrity Commission) trading as Racing Queensland of 28 April 2015.
Both the original decision and the decision by the Racing Disciplinary Board found Tracy Kunde to have breached rule 86(q) of the Greyhound Australasia Rules (GAR). The Racing Disciplinary Board reduced the penalty from warning off racecourses for life to warning off racecourses for 10 years.
It was found that Mr Kunde breached rule 86(q) by witnessing live baiting and failing to report it to the control body or other law enforcement authorities. Mr Kunde is a trainer of greyhounds and on the day when the offence was alleged to have occurred, had been trialling his dogs at an unregistered trial track at Wotan Road, Churchable. It was agreed that the alleged live baiting did not involve Mr Kunde’s dogs and that he was not an active participant.[1]
[1]Transcript of Evidence in the Hearing conducted 22 September 2016, 1-12.
Mr Kunde applied…

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] QCATA 133
Decision Date: 14 December 2017

CaseChat Overview and Summary

The appellant, Queensland Racing and Integrity Commission, sought to appeal a decision of the respondent, Kunde, who was a participant in greyhound racing. The appeal was against a decision by a racing tribunal which had dismissed Kunde’s charges of failing to report certain information under the Rules of Greyhound Racing. The Court of Appeal was tasked with determining whether there were any errors of law in the original tribunal decision that warranted an appeal.

The legal issues the court needed to decide involved the interpretation of the Rules of Greyhound Racing and whether the tribunal had erred in its application of these rules. Specifically, the court had to determine whether the tribunal had correctly interpreted the rule requiring participants to report certain information, and whether there was a requirement for a correlative duty to report. The court also had to examine whether the tribunal had correctly applied the principles of strictness of proof as outlined in the case of Briginshaw v Briginshaw, and whether there was an error in interpreting the rule to necessitate direct knowledge of the matter omitted to report.

The Court of Appeal found that there was no error of law in the tribunal’s decision. The tribunal had correctly interpreted the rules and applied the principles of strictness of proof. The court held that the tribunal’s interpretation that a correlative duty to report was not necessary was not erroneous, and that the requirement for direct knowledge was also correctly interpreted. The Court of Appeal further found that the tribunal had not misapplied the Briginshaw principles.

Accordingly, the appeal was dismissed in respect of the first three grounds, and leave to appeal was refused for the fourth and fifth grounds. The tribunal's decision was upheld, and no further appeal would be entertained.

Orders

Orders of the court

IT IS THE DECISION OF THE TRIBUNAL THAT:

1. The appeal in respect of grounds 1, 2 and 3 is dismissed.

2. Leave to appeal is refused in relation to grounds 4 and 5.

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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