Queensland Racing Integrity Commission v Scott - [2019] QCATA 121

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland Racing Integrity Commission v Scott [2019] QCATA 121

PARTIES:

QUEENSLAND RACING INTEGRITY COMMISSION
(applicant/appellant)

v

RACHEL LEIGH SCOTT

(respondent)

APPLICATION NO/S:

APL260-18

ORIGINATING APPLICATION NO/S:

OCR252-16

MATTER TYPE:

Appeals

DELIVERED ON:

8 August 2019

HEARING DATE:

2 April 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

Member Kanowski

ORDERS:

1.   The appeal is allowed.

2.   The decision of the Tribunal of 3 September 2018 is set aside.

3.   In substitution for the penalty imposed by the Tribunal, Rachel Leigh Scott is suspended from holding a trainers licence for a period of 9 months, commencing 2 weeks from the date of this order, in addition to the suspension of 3 months on conditions which commenced on 18 September 2018 and ended on 17 December 2018 following the decision of the Tribunal of 3 September 2018.

4.   The fine of $6,000 paid by Rachel Leigh Scott is to be repaid within 2 weeks of the date of this order.

CATCHWORDS:

ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – where harness racing trainer failed to present a horse free of a prohibited substances – where urine sample above the cobalt threshold –– where breach was due to carelessness in the feeding and supplement regime – whether wrong principles applied – whether suspension for three months manifestly inadequate

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

Australian Harness Racing Rules, r 188A, r 190, r 259

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142

Baggs v University of Sydney Union [2013] NSWCA 451

Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemsted’ (1976) 136 CLR 529

Cole v Harness Racing Victoria (Review and Regulation) [2018] VCAT 1930

Day v Harness Racing NSW [2014] NSWSC 1402

Demmler v Harness Racing Victoria [2017] VCAT 600

Donoghue v Stevenson [1932] AC 562

Graham v Queensland Racing Integrity Commission [2019] QCAT 198

Harness Racing Victoria v Chisholm [2017] VCAT 1620

Harness Racing Victoria v Ross Graham (unreported, Racing Appeals and Disciplinary Board, 10 August 2017)

Jaensch v Coffey (1984) 155 CLR 549

Kavanagh v Racing Victoria Limited (No 2) (Review and

Regulation) [2018] VCAT 291

McDonough v Harness Racing Victoria [2008] VRAT 6

Morrisey v Queensland Racing Integrity Commission [2018] QCAT 161

New South Wales v Gillett [2012] NSWCA 83

RVL Stewards v Peter Moody (unreported, Victorian Racing Appeals and Disciplinary Board, 16 March 2016, penalty 17 March 2016)

Scott v Queensland Racing Integrity Commission (No 2) [2018] QCAT 301

Wallace v Queensland Racing [2007] QDC 168

Xuereb v Racing Victoria Limited (Review and Regulation) [2019] VCAT 473

APPEARANCES & REPRESENTATION:

Applicant:

R J Anderson QC, instructed by Lander and Rogers Lawyers

Respondent:

J E Murdoch QC, instructed by O’Connor Ruddy and Garrett Lawyers

REASONS FOR DECISION

Background

The appellant, Queensland Racing Integrity Commission, appeals the decision of the Tribunal made on 3 September 2018 to suspend the trainers licence of the…

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 Scott 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: [2019] QCATA 121
Decision Date: 8 August 2019

CaseChat Overview and Summary

The case of Queensland Racing Integrity Commission v Scott involves a dispute over the appropriate penalty imposed on the respondent, Scott, who failed to present a horse free of a prohibited substance, cobalt, at a race in Redcliffe. The respondent was a licensed A Grade trainer under the appellant, the Queensland Racing Integrity Commission. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT) and subsequently appealed to the Queensland Court of Appeal. The primary issue before the court was whether the Tribunal had applied the correct principles in determining the penalty for the breach and whether the three-month suspension imposed was manifestly inadequate.

The court examined the reasoning used by the Tribunal to determine the appropriate penalty. The Tribunal had categorised the case as one involving moderate carelessness, which did not fall into the categories of culpability set out in Wallace v Queensland Racing. Instead, the Tribunal created its own categories, ranging from no blameworthiness to moral blameworthiness. The court found that the Tribunal's reframing of the culpability categories was not in accordance with established principles and that the Tribunal had failed to properly consider the appropriate penalty within the range of penalties for such breaches. The court concluded that the Tribunal had applied incorrect principles in determining the penalty and that the three-month suspension was manifestly inadequate.

In light of the court's findings, the appeal was allowed, and the Tribunal's decision was set aside. In place of the Tribunal's penalty, the respondent was suspended from holding a trainers licence for a period of nine months, in addition to the three months already served under the Tribunal's decision. The court also ordered the respondent to repay the $6,000 fine that had been paid to the Tribunal. This decision highlights the importance of applying correct legal principles when determining penalties for breaches of racing regulations and the need for courts to ensure that penalties are commensurate with the nature and gravity of the offence.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Tribunal of 3 September 2018 is set aside.

3. In substitution for the penalty imposed by the Tribunal, Rachel Leigh Scott is suspended from holding a trainers licence for a period of 9 months, commencing 2 weeks from the date of this order, in addition to the suspension of 3 months on conditions which commenced on 18 September 2018 and ended on 17 December 2018 following the decision of the Tribunal of 3 September 2018.

4. The fine of $6,000 paid by Rachel Leigh Scott is to be repaid within 2 weeks of the date of this order.

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

On 2 April 2016 the respondent, as an A Grade trainer under a licence issued by the appellant, presented the horse Nolonga Your Choice for a harness race at Redcliffe not free of a prohibited substance, namely cobalt, contrary to rule 190(1) of the Australian Harness Racing Rules (‘AHRR’). A breach of Rule 190 is a strict liability offence.[3] What is a prohibited substance is set out in rule 188A(1), while rule 188A(2)(k) provides that cobalt at or below 200 mcg/L in urine is excepted from the provisions of sub-rule 188A(1).[4] A pre-race urine sample taken from the horse was found on analysis to have a cobalt level of 280 to 284 mcg/L.[5][3]Rule 190(4) AHRR. [4]The threshold was reduced to 100 mcg/L from 1 November 2016.[5][2018] QCAT 301, [13].The Tribunal’s decision at first instance In the decision at first instance, it was found that the elevated cobalt level was caused by supplements given to the horse, causing cobalt to build up in the horse’s system, which was exacerbated by the intravenous administration of a further supplement two days prior to the race.[6][6]Ibid [10]-[12], [17]-[18]. As to the cobalt levels in the supplements, see [15]-[16]. In relation to penalty, the learned Member considered a number of previous decisions both in Queensland and interstate, including those involving cobalt. Reference was also made to the categorisation of cases noted in the decision of Wallace v Queensland Racing.[7] In that case, in relation to the issue of culpability, McGill DCJ referred to three categories of cases which, in ascending order, could justify a more severe penalty: cases where there is an innocent explanation for the presence of the prohibited substance, cases where there is no explanation for the elevated reading, and cases where there is an explanation and one that shows ‘moral blameworthiness’.[8][7][2007] QDC 168.[8]Ibid [68]-[69]. See also McDonough v Harness Racing Victoria [2008] VRAT 6; Kavanagh v Racing Victoria Limited (No 2) (Review and Regulation) [2018] VCAT 291, [15]. In Cole v Harness Racing Victoria (Review and Regulation) [018] VCAT 1930, [22], it was suggested that categories two and three ‘may or may not end up being similar … every case depending on its own individual facts’. In referring to those categories,[9] and in concluding that the conduct of Ms Scott involved carelessness,[10] later in the reasons referred to as ‘moderate carelessness’,[11] the learned Member concluded that this did not come within any of the three categories set out in Wallace. On that basis, the categories were reframed as follows:[12]ANo blameworthiness at all;B Carelessness;CNo credible explanation, so no indication about blameworthiness one way or the other;DMoral blameworthiness shown.[9][2018] QCAT 301, [46]-[50].[10]Ibid [47].[11]Ibid [93].[12]Ibid [48]. It was added that category B cases could encompass varying degrees of carelessness, while category C cases ‘might ultimately spill into category D cases in circumstances when it was right to infer moral blameworthiness from the absence of a credible explanation for the elevated reading’.[13][13]Ibid [49]-[50].

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Queensland Racing Integrity Commission v Scott [2019] QCATA 121
PARTIES:	QUEENSLAND RACING INTEGRITY COMMISSION (applicant/appellant)
v
RACHEL LEIGH SCOTT (respondent)
APPLICATION NO/S:	APL260-18
ORIGINATING APPLICATION NO/S:	OCR252-16
MATTER TYPE:	Appeals
DELIVERED ON:	8 August 2019
HEARING DATE:	2 April 2019
HEARD AT:	Brisbane
DECISION OF:	Senior Member Aughterson Member Kanowski
ORDERS:	1. The appeal is allowed. 2. The decision of the Tribunal of 3 September 2018 is set aside. 3. In substitution for the penalty imposed by the Tribunal, Rachel Leigh Scott is suspended from holding a trainers licence for a period of 9 months, commencing 2 weeks from the date of this order, in addition to the suspension of 3 months on conditions which commenced on 18 September 2018 and ended on 17 December 2018 following the decision of the Tribunal of 3 September 2018. 4. The fine of $6,000 paid by Rachel Leigh Scott is to be repaid within 2 weeks of the date of this order.
CATCHWORDS:	ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – where harness racing trainer failed to present a horse free of a prohibited substances – where urine sample above the cobalt threshold –– where breach was due to carelessness in the feeding and supplement regime – whether wrong principles applied – whether suspension for three months manifestly inadequate APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – whether wrong principles applied – whether suspension for three months manifestly inadequate Australian Harness Racing Rules, r 188A, r 190, r 259 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142 Baggs v University of Sydney Union [2013] NSWCA 451 Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemsted’ (1976) 136 CLR 529 Cole v Harness Racing Victoria (Review and Regulation) [2018] VCAT 1930 Day v Harness Racing NSW [2014] NSWSC 1402 Demmler v Harness Racing Victoria [2017] VCAT 600 Donoghue v Stevenson [1932] AC 562 Graham v Queensland Racing Integrity Commission [2019] QCAT 198 Harness Racing Victoria v Chisholm [2017] VCAT 1620 Harness Racing Victoria v Ross Graham (unreported, Racing Appeals and Disciplinary Board, 10 August 2017) Jaensch v Coffey (1984) 155 CLR 549 Kavanagh v Racing Victoria Limited (No 2) (Review and Regulation) [2018] VCAT 291 McDonough v Harness Racing Victoria [2008] VRAT 6 Morrisey v Queensland Racing Integrity Commission [2018] QCAT 161 New South Wales v Gillett [2012] NSWCA 83 RVL Stewards v Peter Moody (unreported, Victorian Racing Appeals and Disciplinary Board, 16 March 2016, penalty 17 March 2016) Scott v Queensland Racing Integrity Commission (No 2) [2018] QCAT 301 Wallace v Queensland Racing [2007] QDC 168 Xuereb v Racing Victoria Limited (Review and Regulation) [2019] VCAT 473
APPEARANCES & REPRESENTATION:
Applicant:	R J Anderson QC, instructed by Lander and Rogers Lawyers
Respondent:	J E Murdoch QC, instructed by O’Connor Ruddy and Garrett Lawyers