Queensland Racing Ltd v Ganderton

[2010] QCAT 348

Queensland Racing Ltd v Ganderton [2010] QCAT 348

PARTIES:	Queensland Racing Ltd
v
Daniel Ganderton

APPLICATION NUMBER:            OCR020-10  

MATTER TYPE: Occupational regulation matters

HEARING DATE:   16 March 2010

HEARD AT:   Brisbane

DECISION OF: Richard Oliver, presiding; Susanne Holzberger; William leMass

DELIVERED ON:   29 March 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  The application is dismissed.

CATCHWORDS :  Review of decision of First Level Appeals Committee; Queensland Civil and Administrative Act ss 19 and 20; whether review should be restricted to a finding of whether Stewards held an opinion as to the a breach of AR 135(b) or whether a fresh hearing on the merits; whether respondent took all reasonable and permissible measures to win or improve position; appeal dismissed.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Callaghan SC for the applicant
RESPONDENT:	Mr Murdoch SC for the respondent

Introduction

1. Daniel Ganderton was the rider of Deer Valley in race 8 at the Gold Coast Turf Club on 2 January 2010 which was a 2 year old handicap over 1200 metres.  At the conclusion of the race Stewards charged Mr Ganderton with a breech of Australian Racing Rule 135(b) in that he failed to take all reasonable and permissible measures to ensure that Deer Valley was given full opportunity to win or to obtain the best possible place in field.

1. As a consequence of the charge being laid and proved to the satisfaction of the Stewards, Mr Ganderton’s licence to ride was suspended for a period of 2 months.

1. The Stewards decision was appealed to the First Level Appeals Committee and heard on 19 January 2010 and was overturned. Queensland Racing has now sought a review of that decision pursuant to the Tribunal’s review jurisdiction under division 3 of the QCAT Act.

1. The specific’s of the charge in relation to Mr Ganderton’s ride were as follows:

(1)That when racing some 12 lengths of the leader Alesprit, knew the 700 metres you did fail to improve your position on the back of Sweepstaking when it was reasonable and permissible to do so;

(2)  That between the 600 metres and 400 metres, when Deer Valley was clear last, you failed to show sufficient vigour to improve his position failing the eventual winner, Sweepstaking, for the purpose of an argument him to come to the outside upon straightening and thereby affording Deer Valley a clear and uninterrupted run to the finish line.  Instead he remained to the inside where clear running was not available, and as a consequence of his riding Deer Valley did not obtain clear running and was not fully tested until a point near the 100 metres.

1. AR.135 provides:

(a)      Every horse shall be run on its merits

(b)The rider of every horse shall take all reasonable and permissible measures throughout the race to ensure that his horse is given full opportunity to win or to obtain the best possible place in the field.

(c)Any person who in the opinion of the stewards has breeched, or was a party to breech, any portion of this rule may be punished, and the horse concerned may be disqualified”.

Nature of review

1. It is contended by Mr Callaghan SC., who appeared for the Applicant, that although the approach that should be taken by the Tribunal in reviewing the decision of the Stewards, pursuant of section 20 of the Queensland Civil and Administrative Act (“the QCAT Act”), is a review on the merits, the review should be limited to whether the Stewards could reasonably have held an opinion, and if the did, that is the end of the matter. Section 20 provides:

(1) The purpose of the review of this decision is to produce a correct and preferable decision.

(2) “The Tribunal must hear and decide of a reviewable decision by way of a fresh hearing on the merits”.

1. The Applicants written submission is as follows:

However, that phrase “fresh hearing on the merits” cannot obscure the proposition to the subject to the review is the “decision”.  The “freshness” of a hearing cannot alter the scope of that which was required to be done at first instance, which is being reviewed.  QCAT is required to produce the correct and preferable “decision” which ought to have been made by the Committee, which in turn was concerned with a decision of the stewards.  That was “decision” to penalise, something the stewards were empowered to do by AR.8(e).

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 there was no basis upon which the opinion could have been formed, the steward’s state of mind could not in truth be described as “opinion” at all.  Put another way, if the “opinion” was one which was so unreasonable that no reasonable steward could uphold it, then it could not properly be described as an opinion for the purposes AR.135.  However, if upon enquiry it appears to the Tribunal that the stewards did in fact hold a relevant opinion respect of any part of AR.135(a) or (b), and there was a basis on which an opinion could be formed, then the review of the decision must follow”.

1. Therefore, consistent with the submission, it is not open for this Tribunal to substitute it’s own opinion unless it was found that the Stewards did not hold “an opinion”.

10Mr.Murdoch SC., who appeared for the Respondent, urged the Tribunal to adopt the approach that had been adopted by the former Racing Appeals Tribunal[1] which is that on a review application this Tribunal stands in the shoes of the original decision maker, and consistent with section 20 of the QCAT Act, make a decision “by way of a fresh hearing on the merits”.  This approach is consistent with, in our review, not  only AR.135 but also with the Local Rules, in particular Rule 6 subrule 44 which is in the follow terms:

“An appeal before the First Level of Appeal Committee is an appeal by way of rehearing unaffected by the original decision”.

[1] Radecker, M.S. v Queensland Racing (2008) QRAT 4

1. Subrule 45 of Local Rule 6 permits the committee, on appeal, to consider any further additional information, they consider necessary for the purposes of that appeal.

2. The application of AR. 135 certainly does place reliance on the opinion of the Stewards in determining whether the rider has taken all reasonable and permissible measures to win or improve the position in the field, but it is that opinion and, more importantly, the basis of the opinion that is to be considered afresh by this Tribunal, not merely whether an opinion was held.

3. The opinion of the stewards is obviously important when considering whether there has been a breech of the Rule. However any opinion held by the Stewards must be, in our view, subject to objective scrutiny having a regard to the standards expected of a jockey of the ability and experience of the individual so charged.  Therefore, any opinion held by the stewards must be reasonable and therefore the subject of the review application is not whether they in fact held an opinion, but whether that opinion was reasonable in all the circumstances.

1. That is the approach we prefer and it is an approach which is consistent with not only the local rule 6, but also consistent which sections 19 and 20 of the QCAT Act. In addition it is consistent with what was said I Radecker:[2]

“The issues to be decided when considering whether a rider has breached AR 135(b) were articulated by Mr T.E.F. Hughes AC QC – Principal Member of the Appeal Panel of Racing NSW in a decision involving Jockey Chris Munce published 11 June 2003 when Mr Hughes stated:

The task of administering this rule is not always easy. One must keep clearly in mind that on its true interpretation it is not designed to punish a jockey unless on the whole of the evidence in the case the Tribunal considering a charge under the rule is comfortably satisfied that the person charged was guilty of conduct that in all the relevant circumstances fell below the level of objective judgment reasonably to be expected of a jockey in the position of the person charged in relation to the particular race.”

[2] supra

1. We therefore conclude that the proper discharge of the functions under section 20 of the QCAT Act requires the Tribunal to consider all the relevant circumstances, and to then determine for itself afresh, whether the rider took all reasonable and permissible measures throughout the race to win or improve the position of the horse. As part of this consideration the opinion of the Stewards is just one of the relevant circumstances. We therefore reject the proposition put by the applicant that the scope of the enquiry must be limited it to whether or not the stewards in fact held an “opinion”.

1. Even if we were to adopt the approach submitted by the applicant, the Tribunal would still be required to determine whether or not it was reasonable for the stewards to hold an “opinion” and whether it was reasonable, in the circumstances of the case.

Consideration of the Merits

1. Having concluded that we must now consider that matter afresh, we do acknowledge the weight and experience and dedication of Stewards in the industry and have regard to their collective knowledge and experience when deciding whether or not charges should be laid against riders under AR.135.  In addition, we take into account that Stewards not only have the depth of knowledge as to the application of the rules, they are also attuned to what jockeys should and should not do in discharging their responsibilities to ensure that each horse is run on its merits.

1. In the riding of this race, no complaint is made of the jockeys conduct until the 700 metre mark when it is alleged he then failed to improve his position.  When asked to take the stewards through the race the applicant said:

“Yes, well, she began about half a length slow which is a usual habit of hers. Coped a lot of pressure from the outside, it became very tight.  Came back out of it, tried to cross over behind the back of the field.  Gillian Heinrich’s Runner Hellyer was the rider, he came across and dictated me back to the fence, which was a place I did not want to be, so I elected to come back slightly further, to come back behind him, so that I could get little bit further away from the fence”.

“I trailed him in the run.  We got of to the 600, the leaders obviously were a fair way in front, but I sought of had a wall of horses in front of me and I had a decision to make, whether to go out or in.  There was a large number of horses in front of me and they were really fanned five or six across the track, so I made the decision to go back inwards to try and save a bit of ground, to try and cut the margin down from the break away leaders, obviously.  I got a reasonable run through up around the corner; got held up coming into the straight behind Jim Byrne’s runner - the winner, sought of through the pack.  Then just behind Jim, was dictated a little bit to only go when he did, sort of thing, so when a run came he would get there first.  And yes, she was probably forced back in late; she was forced back into the inferior of the track, with 59 kilos and she just piqued on her run a little bit”.[3] 

[3] Steward Panel transcript page 3

1. The trainer, Mr Ryan essentially agreed with Mr Ganderton’s description of the ride. In addition to that, it is noted that Deer Valley also “got skittled coming out of the barriers”[4].  I take this to mean some unintended interference.

   [4] Supra page 2

1. That version was consistent to what was given to Appeals Committee and on observing the race on DVD it is quite apparent that Deer Valley had considerable ground to make up as the field came into the turn.

1. Mr Murdoch SC, on behalf of the applicant submits, that it was reasonable for the jockey to try and save ground and follow the path Sweepstaking in the hope that he would be able to thread his way through the field to improve his position.  In fact, Deer Valley did make up ground but as she approached the finishing post, she lost momentum which is evident also, on the vision of the race.

1. The rider of Sweepstaking is an experienced rider and, as apprentice, Mr Ganderton has been taught that it is best practice to follow the experienced rider if there is any doubt about where to move to mount in the field.

1. The applicant submits that Deer Valley’s placing indicated that her best run would have be on the outside of the field.  This position would also offer her clear running to the finish line.  It is accepted by the applicant that the pace of the race was fast and this was to her disadvantage given her race conditioning.  It is also submitted that when Sweepstaking that later moved forward at the 500 metre mark, that was the opportunity for Deer Valley to move to the outside and have uninterrupted run in the straight.  It was therefore reasonable for the stewards to conclude that by not adopting this measure Deer Valley was not given every opportunity to win or improve her position.  The suggestion that the split second decision of the jockey not to move to the outside but follow the experienced rider on Sweepstaking to move through the pack was unreasonable.

Decision

1. Having viewed the video of the race and considered Mr Ganderton’s evidence about his decision on how the race should be ridden particularly, coming into the straight we have difficulty in concluding that it ought to have been so obvious to him that his best run was to move to the outside and lose ground, to give the horse a clear run to the finishing line.  His decision to stay behind Sweepstaking and move through the field in the hope that a better opportunity would arise was a judgement made which we cannot conclude was an unreasonable judgement on his part in the heat of the moment.  The First Level Appeals Committee took evidence, heard submissions, looked at the video and concluded that the appeal should be upheld.

1. We are also mindful of what was also said in Radecker[5]

   [5] Supra at page 4

“The relevant circumstances in such a case may be numerous; they include the seniority and experience of the person charged. They include the competitive pressure under which the person charged was riding in the particular race. They include any practical necessity for the person charged to make a sudden decision between alternative courses of action.

The rule is not designed to punish jockeys who make errors of judgment unless those errors are culpable by reference to the criteria that I have described”

1. We have therefore come to a similar view and conclude that the application should be dismissed.