Queensland Racing Integrity Commission v Gilroy - [2016] QCATA 146

CITATION:

Queensland Racing Integrity Commission v Gilroy [2016] QCATA 146

PARTIES:	Queensland Racing Integrity Commission (Applicant)
v
Desmond Gilroy (Respondent)

APPLICATION NUMBER:

APL214-16

MATTER TYPE:	Appeals
HEARING DATE:	12 September 2016

HEARD AT:

Brisbane

DECISION OF:

Justice DG Thomas, President

DELIVERED ON:

17 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. There was an error of law in the decision of the Racing Disciplinary Board dated 2 June 2016.

2. That decision be set aside in respect of penalty imposed.

3. The respondent, having been found guilty of an offence under rule 83(2) of the Greyhounds Australasia Rules 2013 is liable to a penalty under rule 95.

4. Effective from 17 March 2016, Desmond Gilroy is disqualified for a period of 15 months.

5. The period of disqualification is suspended after 7 months (being after 17 October 2016).

6. If Desmond Gilroy engages in any conduct for which he might be subject to a disciplinary charge (under rules 79A, 83, 84, 84A or 84B of the Greyhounds Australasia Rules) for a prohibited substance during the period of disqualification, the period of disqualification that is suspended will immediately be re-activated and the disqualification be served in full. The matters which are the subject of any new charge will be treated and dealt with as a separate proceeding.

7. There will be no order as to costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL

– WHEN APPEAL LIES – ERROR OF LAW – where the respondent was found to have contravened rule 83(2) of Greyhounds Australasia Rules 2013 – where the Queensland Racing Disciplinary Board made a decision to vary the suspension period from 18 months to 4 months – where the Queensland Racing Integrity Commission appealed this decision –where the parties made joint submissions –whether penalty imposed by the Queensland Racing Disciplinary Board was manifestly inadequate

GAMING AND LIQUOR – ADMINISTRATION – RACING – RACING COMMISSIONS, BOARDS AND TRIBUNALS – GREYHOUND RACING – effect of suspension on disqualification – where prior disciplinary action – whether the decision should be set aside

Greyhounds Australasia Rules 2013 rr 1, 95, 99
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146
Racing Act 2002 (Qld) ss 4, 146, 155(5)

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; CFMEU v Director, Fair Work Building Industry Inspectorate [2015] HCA 46
David Crawford v Stewards of Greyhound Racing Victoria Racing Appeals and Disciplinary Board (13 July 2016)
Edmondson v Queensland All Codes Racing Industry Board [2016] QCAT 70
Lovell v Lovell (1950) 81 CLR 513
Medical Board of Australia v Martin [2013] QCAT 376
Queensland All Codes Racing Industry Board v Abbott [2015] QCATA 92
Racing Queensland Ltd v Dixon [2013] QCATA 172

APPEARANCES and REPRESENTATION:

APPLICANT:

AR Forbes of Lander & Rogers appearing on behalf of the Queensland Racing Integrity Commission

RESPONDENT:

Desmond Gilroy appearing on behalf of himself

REASONS FOR DECISION

Background

Desmond Gilroy is the trainer of greyhounds, including “Mugged on Tour”.
On…

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: [2016] QCATA 146
Decision Date: 17 October 2016

CaseChat Overview and Summary

The case of Queensland Racing Integrity Commission v Gilroy involved an appeal by the Commission against a decision of the Queensland Racing Disciplinary Board. Desmond Gilroy had been found to have contravened rule 83(2) of the Greyhounds Australasia Rules 2013. The Board had varied the suspension period from 18 months to 4 months, a decision which the Commission appealed. Both parties submitted jointly on the matter. The central legal issue was whether the penalty imposed by the Disciplinary Board was manifestly inadequate. The Court had to determine if there was an error of law in the Board’s decision dated 2 June 2016 and if so, whether the decision should be set aside.

The Court found that there was indeed an error of law in the Disciplinary Board's decision. The Board had failed to consider the appropriate penalty under rule 95 of the Greyhounds Australasia Rules 2013. The Court held that the penalty of 4 months was manifestly inadequate, especially considering the respondent's prior disciplinary action. The Court set aside the Board’s decision in respect of the penalty imposed. It determined that Desmond Gilroy, having been found guilty of an offence under rule 83(2), was liable to a penalty under rule 95. Consequently, the Court imposed a disqualification of 15 months, effective from 17 March 2016, which was suspended after 7 months, i.e., 17 October 2016. If Gilroy engaged in any conduct for which he might be subject to a disciplinary charge for a prohibited substance during the disqualification period, the suspended period would be reactivated, and the disqualification would be served in full.

The Court’s final orders included the setting aside of the Disciplinary Board’s decision regarding the penalty. It imposed a 15-month disqualification period, suspended after 7 months, and clarified the conditions for reactivation of the disqualification. The Court made no order as to costs.

Orders

Orders of the court

1. There was an error of law in the decision of the Racing Disciplinary Board dated 2 June 2016.

2. That decision be set aside in respect of penalty imposed.

3. The respondent, having been found guilty of an offence under rule 83(2) of the Greyhounds Australasia Rules 2013 is liable to a penalty under rule 95.

4. Effective from 17 March 2016, Desmond Gilroy is disqualified for a period of 15 months.

5. The period of disqualification is suspended after 7 months (being after 17 October 2016).

6. If Desmond Gilroy engages in any conduct for which he might be subject to a disciplinary charge (under rules 79A, 83, 84, 84A or 84B of the Greyhounds Australasia Rules) for a prohibited substance during the period of disqualification, the period of disqualification that is suspended will immediately be re-activated and the disqualification be served in full. The matters which are the subject of any new charge will be treated and dealt with as a separate proceeding.

7. There will be no order as to costs.

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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