Queensland Racing Ltd v McMahon
[2010] QCAT 86
•6 April 2010
| CITATION: | Queensland Racing Ltd v McMahon [2010] QCAT 86 |
| PARTIES: | Queensland Racing Ltd |
| v | |
| Ric McMahon |
APPLICATION NUMBER: OCR024-10
| MATTER TYPE: | Occupational regulation matters |
HEARING DATE: 16 March 2010
HEARD AT: Brisbane
| DECISION OF: | Richard Oliver, presiding; Susann Holzberger; William leMass |
DELIVERED ON: 6 April 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 137 or whether a fresh hearing on the merits; whether respondent engaged in “improper” riding(a); appeal dismissed. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Callaghan SC for the applicant |
| RESPONDENT: | Mr Murdoch SC for the respondent |
Introduction
Ric McMahon was the rider of Haslington in race 4 at the Gold Coast Turf Club on 26 December 2009. At the conclusion of the race Stewards charged Mr McMahon with a breach of Australian Racing Rule 137(a) in that he rode Haslington in an improper manner within the meaning of that Rule.
As a consequence of the charge being laid and proved to the satisfaction of the stewards, Mr McMahon’s licence to ride was suspended for a period of 3 months.
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 Queensland Civil and Administrative Act (“the QCAT Act”).
The specific’s of the charge in relation to Mr McMahon’s ride were: follows:
“That as the rider of Haslington in race 4 at the Gold Coast Turf Club meeting on Saturday 26 December 2009, in that your action of moving Haslington wider on the home turn, thus presenting the opportunity for Coming up Trumps to take the run to the inside of Singing the Blues rather than availing Haslington of that run that had become available to you was improper”
AR.137 provides:
Any rider may be punished if, in the opinion of the stewards,
Every horse shall be run on its merits
a.He is guilty of careless, reckless, improper, incompetent or foul riding.
Nature of review
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 they 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”.
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”.
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”.
Mr.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:
[1] Radecker, M.S. v Queensland Racing (2008) QRAT 4
“An appeal before the First Level of Appeal Committee is an appeal by way of rehearing unaffected by the original decision”.
10. 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.
11. The application of AR. 137 certainly does place reliance on the opinion of the stewards in determining whether the rider has engaged in improper riding, 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.
12. The opinion of the stewards is obviously important when considering whether there has been a breach of the Rule. However any opinion held by the Stewards must be, in our view, subject to objective scrutiny having 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.
13. 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 the Tribunal relies on what was said in Queensland Racing v Ganderton,[2] and although this is a different rule, the “opinion of the stewards” was the still the relevant issue.
14. 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 engaged in improper riding. 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”.
15. 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.
[2] (2010) QCAT OCR 020-10
Consideration of the Merits
16. The issue for determination “afresh” is then whether Mr McMahon rode Haslington in an improper manner on 26 December 2009.
17. The allegations against Mr McMahon amount to, in the in the opinion of the stewards, “improper” riding. The applicant contends that the word “improper”:
Carries a meaning different from that which bears in, for example, AR. 175 (a) and (q). To the extent of the First Level of Appeal Committee was distracted by notions of dishonesty – which might be relevant under AR. 175 – it was in error. For the purposes of AR.137 the word “improper” carries its ordinary meaning, affected only by the requirement that it means something capable of being used to describe a ride. It imports no requirement, as the First Level Appeal Committee seem to think it did (P3 of the Reasons), that in the absence of such impropriety the horse “would have won or been better placed[3]”.
[3] Applicants written submission paragraph 17
18. It was asserted by Mr Murdoch SC that the stewards opinion that Mr McMahon was guilty of “improper” riding was infected with a notion of dishonesty by reference to the actions of Mr McMahon such as, why he kept looking around him during the ride, which is evident on the recording of the race, and also suspicions about whether he had bets on the race. Mr McMahon was asked whether he could prove that he did not have any bets on the race which pointedly suggests some dubious conduct.
19. It is fair to say that on the hearing of the review application the applicant disavowed any suggestion of dishonesty on the part of Mr McMahon and confined the submissions to, whether or not riding of Haslington was improper. In particular, his failure to take the opportunity to keep the horse on the inside.
20. Mr McMahon came under specific scrutiny as Haslington entered into the home straight with a group of horses. The decision made by Mr McMahon was to shift his mount to the outside of the field so the horse had a clear and uninterrupted run to the finishing post. Mr McMahon gave evidence both to the stewards and during the course of the hearing that he saw this as the best option for Haslington to improve its position a decision, which he maintains was the right at the time and which he holds to even at this hearing.
21. One of the matters taken into account by Mr McMahon was that if he maintained his path of travel or moved to the inside, as suggested by the stewards, he may have run into interference from other horses[4] and as Haslington is a known “baulker” he was attempting to avoid any prospect of interference. His riding plan was to keep the main rival in the field, Coming up Trumps in a “pocket” towards the fence as they entered the home turn rather than having to work through the field to improve his position.
[4] Dean Tanit’s horse
22. This plan had its risks, in that he did lose a little ground when he moved to the outside but the horse did finish strongly which is evident from the recording of the race.
23. When reviewing the race it is understandable why the stewards suspicions were raised because it is unusual that a rider would keep looking around as much as the respondent did during early part of the race. In addition, the move to the outside was also curious in the circumstances given that there appeared to be an open space on the inside although this was closing fast.
24. Mr McMahon’s explanations for these actions found favour with the First Level Appeals Committee[5] and even though this is a fresh hearing, having heard the respondents reasons for his decision to adopt the particular course of action, we see no reason to depart from their decision, in particular we note and agree with the following:
[5] Transcript page 28 line 36
“We cannot find to the required standard the thread of impropriety or dishonesty that the stewards would suggest was available to us to infer’.[6]
[6] Transcript page 31
25. We therefore have come to the conclusion that the application should be dismissed.
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