Queensland Racing Integrity Commission v Gafa - [2022] QCATA 148

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland Racing Integrity Commission v Gafa [2022] QCATA 148

PARTIES:

QUEENSLAND RACING INTEGRITY COMMISSION
(applicant/appellant)

v

DAVID GAFA

(respondent)

APPLICATION NO/S:

APL132-21

ORIGINATING APPLICATION NO/S:

OCR123-20

MATTER TYPE:

Appeals

DELIVERED ON:

30 September 2022

HEARING DATE:

26 May 2022

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

ORDERS:

1.   The appeal is allowed.

2.   The decision of the Tribunal of 8 April 2021 is set aside.

3.   In substitution for the penalty imposed by the Tribunal, David Gafa is suspended from holding a thoroughbred trainer’s licence for a period of three years, from 25 January 2017 to 24 January 2020.

CATCHWORDS:

ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – where thoroughbred racing trainer charged with committing act of cruelty to a horse – whether period of suspension can continue beyond date of expiration of licence – whether wrong principle applied – whether penalty manifestly inadequate

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – whether wrong principles applied – whether suspension manifestly inadequate

Australian Rules of Racing (as at 19 February 2020), AR 1, AR 8, AR 175(n), AR 183B, AR 183F, AR 193
Australian Rules of Racing (as at 8 April 2021), AR 1, AR 231, AR 267, AR 270, AR 277
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146
Racing Act 2002 (Qld), s 101
Racing Integrity Act 2016 (Qld), s 58
Racing (Transitional) Regulation 2016 (Qld), reg 4
Standard for Licensing Scheme Thoroughbreds V2.03, para B1.13

Cole v Harness Racing Victoria (Review and Regulation) [2018] VCAT 1930
Harness Racing Victoria v Chisholm (Review and Regulation) [2017] VCAT 1620
In the Matter of the Appeal of Delaney and Bashford (Racing Appeal Panel of NSW, 10 February 2017)
Lee v Crime and Corruption Commission; Crime and Corruption Commission v Lee [2020] QCA 201
Licciardello v McPherson [2012] ACTSC 31
Queensland Racing Integrity Commission v Gilroy [2016] QCATA 146
Queensland Racing Integrity Commission v Vale [2017] QCATA 46

APPEARANCES & REPRESENTATION:

Appellant:

AC Freeman, of counsel, instructed by the appellant

Respondent:

Self-represented

REASONS FOR DECISION

The question on this appeal is whether a thoroughbred trainer’s licence can be ‘suspended’ once it has expired?
The respondent (the applicant in the review at first instance) held a thoroughbred trainer’s licence. On 18 November 2016, in endeavouring to induce the foal ‘Bonnie’ onto a float, the respondent committed what were said to be acts of cruelty, which acts were proscribed by Rule 175(n) of the then Australian Rules of Racing (‘the Rules’).[1] On 25 January 2017, the respondent was given a notice of immediate suspension of the licence. Following a stewards’ enquiry,[2] the licence was suspended for a period of three years and 25 days, from 25 January 2017 (the date of initial suspension) to 19 February 2020, the date of the decision of the stewards. While there were two disciplinary charges, they arose out of a single chain of events and the stewards imposed a single penalty.
[1]The Rules are statutory instruments…

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.

Keep reading for free

Create a free CaseChat account to read Queensland Racing Integrity Commission v Gafa and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] QCATA 148
Decision Date: 30 September 2022

CaseChat Overview and Summary

David Gafa, a thoroughbred racing trainer, was charged with an act of cruelty to a horse, leading to an appeal against the penalty imposed by the Tribunal. The Tribunal had reduced the initial suspension period imposed by the stewards, a decision that Gafa contested in the appeal. The court had to determine whether the Tribunal applied the correct legal principles in assessing the penalty and whether the penalty was manifestly inadequate.

The primary legal issues were whether the Tribunal applied the correct principles in assessing the penalty and whether the penalty was manifestly inadequate. The court examined whether the Tribunal considered the protective purpose of the relevant legislation and whether the penalty reflected the severity of the conduct, which involved deliberate action causing significant injury to the horse.

The court found that the Tribunal did not apply the correct principles in assessing the penalty, leading to a manifestly inadequate penalty. The court emphasised that the penalty should reflect the protective purpose of the legislation, and the Tribunal's penalty did not adequately address the seriousness of the conduct. The court concluded that a suspension period of three years was appropriate and set aside the Tribunal's decision, substituting it with a three-year suspension from 25 January 2017 to 24 January 2020.

The final orders of the court were to allow the appeal, set aside the Tribunal's decision, and impose a three-year suspension on David Gafa from holding a thoroughbred trainer’s licence, effective from 25 January 2017 to 24 January 2020.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Tribunal of 8 April 2021 is set aside.

3. In substitution for the penalty imposed by the Tribunal, David Gafa is suspended from holding a thoroughbred trainer’s licence for a period of three years, from 25 January 2017 to 24 January 2020.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is well settled that any penalty should reflect the protective purpose of legislation of this nature.[18] The conduct involved a deliberate course of action and in the face of expressions of concern by others who were present. Significant injury was caused to the foal. Mitigating factors have been noted above. The initial penalty imposed was suspension of the licence for a period of a little over three years, reflecting the time between the initial suspension and the decision of the stewards, expiring on 19 February 2020. Suspension for a period of three years is appropriate in the present case. [18]Queensland Racing Integrity Commission v Gilroy [2016] QCATA 146, [24]; Cole v Harness Racing Victoria [2018] VCAT 1930, [14].Conclusion The appeal is allowed. The decision of the Tribunal of 8 April 2021 is set aside. In substitution for the penalty imposed by the Tribunal, David Gafa is suspended from holding a thoroughbred trainer’s licence for a period of three years from 25 January 2017 to 24 January 2020.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Queensland Racing Integrity Commission v Gafa [2022] QCATA 148
PARTIES:	QUEENSLAND RACING INTEGRITY COMMISSION (applicant/appellant)
v
DAVID GAFA (respondent)
APPLICATION NO/S:	APL132-21
ORIGINATING APPLICATION NO/S:	OCR123-20
MATTER TYPE:	Appeals
DELIVERED ON:	30 September 2022
HEARING DATE:	26 May 2022
HEARD AT:	Brisbane
DECISION OF:	Senior Member Aughterson
ORDERS:	1. The appeal is allowed. 2. The decision of the Tribunal of 8 April 2021 is set aside. 3. In substitution for the penalty imposed by the Tribunal, David Gafa is suspended from holding a thoroughbred trainer’s licence for a period of three years, from 25 January 2017 to 24 January 2020.
CATCHWORDS:	ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – where thoroughbred racing trainer charged with committing act of cruelty to a horse – whether period of suspension can continue beyond date of expiration of licence – whether wrong principle applied – whether penalty manifestly inadequate APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – whether wrong principles applied – whether suspension manifestly inadequate Australian Rules of Racing (as at 19 February 2020), AR 1, AR 8, AR 175(n), AR 183B, AR 183F, AR 193 Australian Rules of Racing (as at 8 April 2021), AR 1, AR 231, AR 267, AR 270, AR 277 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146 Racing Act 2002 (Qld), s 101 Racing Integrity Act 2016 (Qld), s 58 Racing (Transitional) Regulation 2016 (Qld), reg 4 Standard for Licensing Scheme Thoroughbreds V2.03, para B1.13 Cole v Harness Racing Victoria (Review and Regulation) [2018] VCAT 1930 Harness Racing Victoria v Chisholm (Review and Regulation) [2017] VCAT 1620 In the Matter of the Appeal of Delaney and Bashford (Racing Appeal Panel of NSW, 10 February 2017) Lee v Crime and Corruption Commission; Crime and Corruption Commission v Lee [2020] QCA 201 Licciardello v McPherson [2012] ACTSC 31 Queensland Racing Integrity Commission v Gilroy [2016] QCATA 146 Queensland Racing Integrity Commission v Vale [2017] QCATA 46
APPEARANCES & REPRESENTATION:
Appellant:	AC Freeman, of counsel, instructed by the appellant
Respondent:	Self-represented