Queensland Racing Limited v McMahon
[2010] QCATA 73
•24 November 2010
| CITATION: | Queensland Racing Ltd v McMahon [2010] QCATA 73 |
| PARTIES: | Queensland Racing Ltd (Applicant/Appellant) |
| v | |
| Mr Ric McMahon (Respondent) |
APPLICATION NUMBER: APL067-10
| MATTER TYPE: | Appeal |
HEARING DATE: 27 August 2010
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President Dr Bridget Cullen Mandikos, Member |
DELIVERED ON: 24 November 2010
DELIVERED AT: Brisbane
ORDERS MADE: The appeal is dismissed
| CATCHWORDS : | APPLICATION FOR REVIEW – NATURE OF REVIEW – whether merits review afforded under s 20 of the Queensland Civil and Administrative Tribunal Act 2009 is constrained to a determination as to whether steward could have held an opinion that rider rode improperly. JURISDICTIONAL FACT – Does phrase “in the opinion of the Stewards” as it is contained in Rule 137 of the Australian Rules of Racing preclude QCAT from engaging in full merits review. Queensland Civil and Administrative Tribunal Act 2009 ss17-20, 142. Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 – considered Irving v Gagliardi (1895) 6 QLJ 155 – applied Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 – considered R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 – considered Shi v Migration Agents Registration Authority [2008] HCA 31 – applied |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Roger Derrington SC of counsel, instructed by Mullins Lawyers |
| RESPONDENT: | Mr James E. Murdoch SC of counsel, instructed by Gabriel, Ruddy & Garrett |
REASONS FOR DECISION
President:
In this matter I have had the advantage of reading the reasons of QCAT Member Dr Bridget Cullen Mandikos. I agree with those reasons, her conclusions, and the order she proposes.
Dr Bridget Cullen Mandikos:
This is an appeal from the decision of this Tribunal in Queensland Racing Ltd v McMahon [2010] QCAT 86, delivered on 16 March 2010. It is a matter about horse racing.
On the topic of horse racing, Mark Twain, in The Tragedy of Pudd'nhead Wilson, once wrote:
“It were not best that we should all think alike; it is difference of opinion that makes horse races.”
These proceedings have arisen out of just such a difference of opinion, between the stewards at the Gold Coast Turf Club on the one hand, and Mr Ric McMahon on the other, regarding Mr McMahon’s riding of the horse Haslington in race 4 at the race meeting held at the Gold Coast Turf Club on Boxing Day, 2009.
At the conclusion of that race the stewards formed the opinion that Mr McMahon had ridden Haslington improperly, within the meaning of that term as used in Rule 137(a) of the Australian Rules of Racing (‘the ARR’).
Queensland Racing has officially adopted the ARR for use in conformity with s 91 the Racing Act 2002 (Qld). These rules then take on the force of statutory instruments within the meaning of the Statutory Instruments Act (1992), because of s 79 in the Racing Act.
Rule 137 of the ARR provides:
Any rider may be penalised if, in the opinion of the Stewards,
(a)He[1] is guilty of careless, reckless, improper, incompetent or foul riding.
(b)He fails to ride his horse out to the end of the race and/or approaching the end of the race.
[1] It is to be noted that the Australian Rules of Racing use the masculine pronoun, this despite many professional jockeys now being women.
(c)He makes any celebratory gesture prior to his mount passing the winning post.
(d)He excessively slows, reduces or checks the speed of his horse thereby causing interference, directly or indirectly, to any other horse in the race. (emphasis added)
The factual particulars of the breach of Rule 137(a) of the ARR alleged against Mr McMahon are sufficiently understood from what is contained in paragraph 4 of the decision now under appeal.[2] Paragraph 4 reflects the initial assertion by the stewards that Mr McMahon was alleged to have ridden Haslington improperly – in particular, by riding excessively wide when coming into the home turn, thereby allowing other riders to exploit the inside running, and Mr McMahon not sufficiently capitalising on that opportunity before others then took it.
[2] Queensland Racing Ltd v McMahon [2010] QCAT 86
The charge of improper riding levelled against Mr McMahon was subsequently proven to the stewards’ satisfaction. Mr McMahon’s license as a professional jockey was then suspended, for a 3 month period.
Shortly after the imposition of that suspension, Mr McMahon appealed the stewards’ decision to what is termed the First Level Appeals Committee (“the FLAC”), a body established by the Appellant, Racing Queensland Limited[3], in conformity with the requirements of s 96 of the Racing Act. Mr McMahon’s appeal was heard on 19 January 2010 and the initial decision of the stewards was overturned by the FLAC.
[3] Since the time of the original decision, on 1 July 2010, the Appellant (Queensland Racing Limited) has become Racing Queensland Limited.
Racing Queensland, as a person aggrieved by that decision, then sought to review the FLAC’s decision in an Application for Review, brought before QCAT, which is made possible by s 150 of the Racing Act (Appeals in racing matters to QCAT have now replaced such appeals to the former Racing Appeals Tribunal).
QCAT’s review jurisdiction is that specified in Chapter 2, Division 3 of the Queensland Civil and Administrative Tribunal Act 2009 (‘the QCAT Act’). In particular, reviews are conducted pursuant to s 20 of the QCAT Act, although it is to be noted that the review jurisdiction involves an understanding of the interplay (sometimes perhaps, tension), between the enabling Act (here the Racing Act), and the QCAT Act; see generally ss 17-19 of the QCAT Act.
Racing Queensland argued that QCAT’s powers of review of the FLAC’s decision must be limited. Despite s 20(2) of the QCAT Act speaking of the need for a “fresh hearing on the merits”, Racing Queensland contended that QCAT must confine itself to an examination of the seriousness of any penalty that should apply, if “the opinion of the Stewards” had already crystallised in relation to any of the various matters specified within Rule 137(a).
During the hearing at first instance before the QCAT Tribunal, Racing Queensland put the contention in these terms[4]:
[4] Queensland Racing Ltd v McMahon [2010] QCAT 86, paragraph [7].
“However that phrase “fresh hearing on the merits” [here referring to the expression used in s.20(2) in the QCAT Act] cannot obscure the proposition that the subject of the review is the “decision”….
…That “decision” was one taken consequent upon the formation of an opinion. But that which is invited by section 20 of the QCAT Act is not a fresh hearing with a view to formation of an opinion. It is a fresh hearing into the merits of the decision. It follows that the scope of the enquiry on review must in reality be limited to whether or not the stewards in fact held the opinion….
…if upon enquiry it appears to the Tribunal that the stewards did in fact hold a relevant opinion in respect of any part of [ARR 137], and there was a basis on which an opinion could be formed, then the review of the decision must follow”.
Racing Queensland’s argument to that end was rejected by the learned Tribunal members below who determined (at [14]) that, when exercising the review jurisdiction applicable to an Application for Review against a decision of the FLAC, QCAT was entitled to: ‘consider all the relevant circumstances and then to determine for itself afresh, whether the rider engaged in improper riding’.
This Appeal
QCAT has an internal appeals procedure, with an automatic right of appeal to this appellate-level tribunal, if the grounds of appeal involve questions of law, alone.[5] This appeal now involves an important legal question regarding the proper construction of ss 19 and 20 of the QCAT Act, as well as important questions going to the interplay between the enabling Act and the QCAT Act, particularly the scope of any jurisdiction that has been conferred on QCAT by the Racing Act via ss 98, 99, and 150.
[5] Section 142 QCAT Act.
On the hearing of this appeal Racing Queensland renewed the point advanced by it at first instance, and argued that the Tribunal below fell into error in deciding that the issue for determination was whether Mr McMahon had ridden Haslington in an improper manner. Further refining that argument, Racing Queensland contends that the expression ‘in the opinion of the stewards’, as used in Rule 137, takes the form of what is known at law as a “jurisdictional fact”[6]. Under this premise, if that opinion is found to have been held by the stewards, then it becomes a matter that is unassailable. As such, it says, FLAC then had no business during its appeal by way of rehearing (conducted in accordance with s 98 of the Racing Act) to choose to examine the opinion of the stewards, in the same manner as would, for example, a superior court of record invested with the power to issue prerogative writs in the form of mandamus or certiorari.
[6] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.
Racing Queensland also contends that the FLAC was not empowered by either of ss 98 or 99 of the Racing Act to undertake administrative review or an internal review of the Steward’s decision, and thereby substitute its own opinion for that of the Stewards, for the purposes of Rule 137. As a consequence, Racing Queensland submits that the FLAC - had it properly conceived the task set for it when the 3 month suspension imposed on Mr McMahon was first taken to it - would have confined itself to a rehearing as to the penalty that should have been imposed as a result of the stewards forming the opinion that Mr McMahon had ridden Haslington improperly.
On this appeal, Racing Queensland contends that the original error by the FLAC was replicated by the QCAT Tribunal at first instance submitting that, because of s 19(c) of the QCAT Act, the Tribunal had the same powers and functions as did the FLAC; and that the Tribunal should equally have recognised that the task required of it was to do no more than conduct a review of Racing Queensland’s decision to impose a three month suspension upon Mr McMahon.[7]
[7] Appellant’s written submissions, filed in QCAT on 18 June 2010, paragraph [4] in particular.
Legislative Scheme
QCAT’s review jurisdiction is that conferred upon the tribunal by an “enabling Act” to review a decision made or taken to have been made by another entity under that Act: QCAT Act s 17. In exercising its review jurisdiction QCAT must decide the review in accordance with the QCAT Act and the enabling Act under which the reviewable decision being reviewed was made: QCAT Act s 19(a). For present purposes, the Racing Act is just such an enabling Act, and the FLAC is “another entity” under that Act. The starting point must therefore be a close examination of that Act, and the statutory regime regulating the racing industry that exists under it.
The embarkation point for that inquiry would seem to be a recognition that the Racing Act establishes ‘control bodies’, vested with statutory power to control the various codes of racing. Racing Queensland is empowered to act as the control body for all three codes of racing (thoroughbreds, harness and greyhounds) in Queensland, pursuant to ss 33 and 34 of the Racing Act. As the control body, it has the following powers, set out in s 33(2) of the Racing Act:
(2) A control body has –
(a) the powers necessary for performing its function; and
(b) all other powers necessary for discharging the obligations imposed on the control body under this Act
The manner in which Racing Queensland, as a control body, is meant to execute its functions is set out in s 78(2) of the Racing Act:
Generally, the control body performs its function by—
(a)making policies about the management of its code of racing, especially about its licensing scheme for controlling activities relating to the animals, clubs, participants and venues and about the way in which races are to be held for its code of racing; and
(b) making rules of racing; and
(c) giving directions to licensed clubs and ensuring compliance by taking disciplinary action relating to the licence of a club that does not comply with a direction.
Racing Queensland, as the control body, and as required by s 91(1) of the Racing Act, has “Rules of Racing”. In making such rules, Racing Queensland is obliged to “have regard to whether the rules have sufficient regard to the rights and liberties of individuals as mentioned in the Legislative Standards Act 1992, section 4(3).[8] As mentioned in the introductory paragraphs of this decision the “Rules of Racing” incorporate, by reference, the “Australian Rules of Racing” and it is under Rule 137(a) of the Australian Rules of Racing that this appeal now arises.
[8] Section 91(2) Racing Act 2002 (Qld).
Relevant Australian Rules of Racing (‘ARR’)
Rule 8 of the ARR creates ‘stewards’, and bestows various powers upon them, including the following that are pertinent to this appeal:
(d)To regulate and control, inquire into and adjudicate upon the conduct of all officials and licensed persons, persons attendant on or connected with a horse and all other persons attending a racecourse.
(e)To penalise any person committing a breach of the Rules.
The stewards are also provided with necessary investigative and adjudicative powers, by virtue of Rule 10 of the ARR, which provides:
The Stewards may at any time inquire into, adjudicate upon and deal with any matter in connection with any race meeting or any matter or incident related to racing
Appeals from decisions of the stewards
Aggrieved persons have appeal rights from some decisions by the stewards. It is the scope of these appeal rights that are now in issue on this appeal. Section 95 of the Racing Act provides:
Appeal against some decisions of steward under rules of racing
(1) A control body’s rules of racing for its code of racing may allow a person aggrieved by a reviewable decision to appeal against the decision to an appeal committee established by the control body.
There is no dispute that the specific decision that is the subject of this appeal was a “reviewable decision” in the manner prescribed by s 95(2) of the Racing Act.
Section 96 of the Racing Act provides that a control body (here Racing Queensland) may provide for an “Appeal Committee” in its rules of racing. If an Appeal Committee is constituted then it must be comprised of 3 individuals[9], consisting of:
(a) 1 individual who is a lawyer of at least 5 years standing; and
(b) 1 individual who has a thorough knowledge of the rules; and
(c) 1 other individual of the type mentioned in paragraph (a) or (b).
[9] Section 97(1) Racing Act 2002 (Qld).
Racing Queensland has chosen to establish an Appeals Committee in accordance with s 96 of the Racing Act, known as the ‘First Level Appeals Committee’ (FLAC).[10]
[10] Local Rules (Thoroughbred Racing) (AC)1(1).
Scope of FLAC Appeals
With respect to an appeal to the FLAC, the Local Rules (Thoroughbred Racing) (AC)1(32) provide:
An appeal before a First Level Appeal Committee is an appeal by way of rehearing, unaffected by the original decision.
The language used in the Local Rules is reflective of that used in s 98(3) of the Racing Act (2002), which provides:
(3) An appeal is by way of rehearing, unaffected by the original decision, on the material before the steward who made the decision appealed against and any further evidence allowed by the appeal committee.
Racing Queensland submits that s 98(3) of the Racing Act has the effect that an appeal to the FLAC must be conducted by way of a rehearing, and is not to be conducted as an appeal de novo. Senior Counsel for the Respondent submits[11] to the contrary, and says that an appeal to the FLAC is to be conducted as if it were a de novo appeal, and that Racing Queensland’s “jurisdictional fact” argument is misconceived,[12] because it fails to have proper regard to the framework of legislation, policies and rules governing the conduct of thoroughbred racing in Queensland.
[11] Respondent’s written submissions, filed in QCAT on 1 July 2010, paragraphs [3], [8c].
[12] Respondent’s written submissions, filed in QCAT on 1 July 2010, paragraph [2].
Given this difference of opinion, an analysis of the construction of the statute, so as to reveal the proper nature and scope of an appeal conducting in accordance with s 98(3) of the Racing Act becomes a matter of some public importance. As was recognised by the majority in the High Court in Fox v Percy (2003) 214 CLR 118 at [20]:
“Appeal is not, as such, a common law procedure. It is a creature of statute. … There are different meanings to be attached to the word ‘rehearing’. … Which of the meanings is that borne by the term ‘appeal’, or whether there is some other meaning, is, in the absence of an express statement in the particular provision, a matter of statutory construction in each case.”
The words used in s 98(3) of the Racing Act are virtually identical to the words used in the (now repealed) s 172(3) of the Act, which referred to appeals brought before the former Racing Appeals Tribunal. Although an appeal is an overt creation of the legislature, and there is no definitive classification scheme for appeals that might be discerned from the descriptive phrases used in the statutes (and which might then conveniently distinguish one type of appeal from another[13]) the language used in s 98(3) of the Racing Act is particularly unfortunate.
[13] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194.
In Wallace v Queensland Racing [2007] QDC 168, McGill DCJ observed, when referring to the language of the now repealed s 172(3), that it produces an “unhappy amalgam of an appeal by way of rehearing in the conventional sense, and an appeal by way of hearing de novo” (at [45]). In particular, his Honour noted that the difficulty arises from the inclusion of the additional expression “unaffected by the decision appealed against” alongside the legislative direction that the appeal by conducted “by way of rehearing”.
In a carefully reasoned decision, his Honour noted (at [47]) that this same amalgam expression appears in at least two other legislative contexts, one of which gave rise to an appeal de novo and the other to an appeal by way of rehearing in the ordinary sense. His Honour further remarked at [49] – [50] that the language used in the (now repealed) s 186 of the Racing Act, is essentially identical to that now contained in s 99, and observed that subsection 186(1) is more consistent with a hearing de novo, whereas the language used in subsection 186(2) is perhaps more arguably consistent with a rehearing in the conventional sense.
Ultimately, his Honour resolved the conundrum by reference to the instruction given by the High Court in Fox v Percy, supra, and the principle of statutory construction that it is desirable to give relevant meaning to all of the words appearing in a statute.[14]
[14] Irving v Gagliardi (1895) 6 QLJ 155 at 156; Pingel v R and R Leach Pty Ltd [2003] 1 Qd R R 533 at 534; Wallace v Queensland Racing [2007] QDC 168, at [54].
Then, in order to give meaning to the additional words “unaffected by the decision appealed against” his Honour held at [57]:
“Giving effect [to the approach espoused by the High Court in Fox v Percy] in the case of an appeal against the exercise of a discretion….seems to me to require the tribunal to depart from the ordinary approach on an appeal by way of rehearing to a review of an exercise of discretion. That is a two-stage process, with the first focussing on the decision appealed against, and the second stage, the exercise of a discretion afresh, only arising if it is shown that there was something wrong with the initial exercise of the discretion. It seems to me that in this context the only way to decide the matter unaffected by the decision appealed against is to proceed directly to the second stage, that is to say, to exercise the discretion afresh. If the tribunal in the rehearing only exercises the discretion afresh if it is first shown that the exercise of the discretion under appear miscarried, then the appeal process is certainly affected by the decision appealed against.”.
I agree with his Honour’s reasoning, particularly given that the language used in ss 98(3) and 99 of the current Racing Act is identical, in all essential respects, to that of the (now repealed) provisions that were considered in Wallace.
It is this approach to Rule 137 that was required of the learned Tribunal below because of s 19 of the QCAT Act. In the result, what was required when the matter was brought to QCAT was for the Tribunal to exercise the original discretion afresh. I am satisfied that the joint decision of the 3 learned members constituting the QCAT Tribunal at first instance properly reflects that approach.
The need to undertake a comprehensive merits review is underscored by the interpretation that has been given to s 20 of the QCAT Act. The appropriate interpretation of the words contained in s 20(1) is to produce the “correct and preferable” decision, were addressed in Queensland Building Services Authority v Meredith [2010] QCATA 50:
“The term commonly used in similar legislation touching administrative review and, I think, the better expression is “the correct or preferable” decision – for reasons explained by Kiefel J in Shi v Migration Agents Registration Authority.”[15]
[15] Shi v Migration Agents Registration Authority [2008] HCA 31 (30 July 2008).
My conclusions regarding the applicability of the reasoning of McGill DCJ in Wallace are therefore galvanised by s 20 of the QCAT Act, which requires a “fresh hearing, on the merits”. To suggest that this expression, when considered in juxtaposition with the relevant provisions in the Racing Act, gives rise to something other than an appeal by way of hearing de novo would be to require a gloss on these words that cannot be credibly supported given the clear and unmistakable language used in s 20. In this instance the “correct and preferable decision” is one that allows QCAT to consider matters relating to both the alleged contravention of the standards by the jockey, as well as the penalty.
Any other construction places excessive power in the hands of the stewards, at the potential expense of a jockey’s livelihood and without any proper opportunity for merits review. The fact that the legislature has made racing appeals a matter that may be taken to QCAT upon an application for review is also a strong indication that the legislature did not intend the interpretation, or the consequences of it, now contended for by Racing Queensland.
For completeness, I here further address Racing Queensland’s “jurisdictional fact” argument, regarding the ‘opinion of the stewards’ required under ARR 137. Racing Queensland’s argument is that the steward’s “opinion” that the standards identified in ARR 137 have been breached is a “precondition” (jurisdictional fact) to the determination to penalise, and is not a reviewable determination itself.
I am not persuaded by this approach. In R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430, 432, Latham CJ drew a distinction between a court replacing the decision maker’s opinion with its own opinion (impermissible), and a court ensuring that the decision maker engaged in the enquiry required of it by statute (legitimate).
This distinction “is what modern administrative lawyers would call the distinction between merits review and judicial review”.[16] Although that is a correct statement of the distinction, Racing Queensland’s argument is also misplaced as it is premised on the presumption that QCAT’s review jurisdiction is akin to a court proceeding, and therefore takes insufficient account of the fact that QCAT is not a court but is, instead, a Tribunal charged with, by virtue of s20 of the QCAT Act, merits review.
[16] Benjamin O’Donnell, Jurisdictional error, invalidity and the role of injunction in s 75(v) of the Australian Constitution (2007) 28 Australian Bar Review at [310].
Further, an examination of ARR 137 suggests that inclusion of the phrase “if, in the opinion of the stewards…” does not add anything extra to the rule intended to make the formation of that opinion a “jurisdictional fact”, thereafter unassailable in an appeal to the FLAC under s 98 of the Racing Act.
The view that Racing Queensland has taken with respect to the jurisdictional fact argument is also inconsistent with the obvious intent of s 150 of the Racing Act. Section 150 (read in conjunction with Schedule 3) provides that QCAT may review the “disciplinary action” taken by a steward, including the suspension of a licence for a stated period, as occurred here.
The phrase “disciplinary action” must, on its plain meaning, include both the factor that led to the stewards determining that the jockey was guilty of the charge, as well as the penalty. Both the conduct and the penalty are part and parcel of a “disciplinary action”. If it were otherwise, the application for review could never be more than what would be in the context of the criminal jurisdiction an appeal against sentence.
There has been no jurisdictional error by the QCAT tribunal below, in having treated this matter in the manner clearly required by s 20 of the QCAT Act.
Order
In light of these conclusions the appeal should be dismissed.
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