Racing Queensland Limited v Dixon - [2013] QCATA 172

CITATION:

Racing Queensland Limited v Dixon [2013] QCATA 172

PARTIES:	Racing Queensland Limited (Appellant)
v
Grant Dixon (Respondent)

APPLICATION NUMBER:

APL278-12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Alexander Horneman-Wren SC, Deputy President
Peta Stilgoe OAM, Senior Member

DELIVERED ON:

19 June 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

Application to adduce further evidence is refused.
Leave to appeal on grounds one to eight is refused.
Appeal on ground nine is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – where the respondent presented a horse with an elevated total carbon dioxide level above the prescribed limit – where appellant appealed on a question of law and questions of mixed law and fact – whether leave to appeal should be granted

APPEAL – where the respondent presented a horse with an elevated total carbon dioxide level above the prescribed limit – where appellant appealed on the ground the sanction was manifestly inadequate – whether the ground was a question of law – whether leave to appeal was required – whether the appellant demonstrated an appealable error

APPEAL – where the respondent presented a horse with an elevated total carbon dioxide level above the prescribed limit – where charged with a breach of Australian Harness Racing Rules 190 – where respondent admitted to administering a supplement to the horse prior to a race – where Tribunal relied on a report by an independent expert – where appellant sought to adduce a further report on appeal – whether the new evidence should be considered on appeal – whether Tribunal erred in relying on report – whether Tribunal erred in finding that trainer was not blameworthy

Queensland Civil and Administrative Tribunal Act 2009, s 137, s 138, s 142(2)(B)

Cachia v Grech [2009] NSWCA 232, cited

Carroll v R (2009) 254 ALR 379, cited

Chambers v Jobling (1986) 7 NSWLR, cited 1

Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, cited

Dearman v Dearman (1908) 7 CLR 549, cited

Dinsdale v R (2000) 202 CLR 321, cited

Dixon v Racing Queensland Limited [2012] QCAT 331, cited

Fox v Percy (2003) 214 CLR 118, cited

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, cited

House v The King (1936) 55 CLR 499, cited

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Judge Alexander Horneman-Wren SC, Deputy President

In this matter the Appeal Tribunal consisted of Ms Stilgoe OAM, QCAT Senior Member, and me. I have had the benefit of reading Senior Member Stilgoe’s reasons in draft. I agree with her conclusion, for the reasons given, that leave to appeal…

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 Racing Queensland Limited v Dixon 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: [2013] QCATA 172
Decision Date: 19 June 2013

CaseChat Overview and Summary

The matter before the court was an appeal by Racing Queensland Limited against a decision of the Queensland Civil and Administrative Tribunal (QCAT). The appeal arose from a finding that the respondent, Dixon, had presented a horse with an elevated total carbon dioxide level above the prescribed limit, which was a breach of the Australian Harness Racing Rules. Dixon admitted to administering a supplement to the horse prior to the race. The Tribunal relied on a report by an independent expert and found Dixon not blameworthy. The appellant sought to adduce a further report on appeal, and contested the Tribunal's decision on the basis that the sanction imposed was manifestly inadequate.

The court was required to decide whether leave to appeal was necessary on certain grounds, and whether the new evidence should be considered on appeal. The court also needed to determine whether the Tribunal erred in relying on the report and in finding that Dixon was not blameworthy. Specifically, the court considered whether the Tribunal had erred in its assessment of the evidence and in its exercise of discretion in imposing the penalty.

The court held that leave to appeal was not required for all grounds, but was necessary for certain grounds. It found that the ground alleging manifest inadequacy of the penalty raised a question of law, as it concerned the imposition of a sentence that was manifestly inadequate. The court also held that the application to adduce further evidence should be refused, as it would not have a significant impact on the outcome of the appeal. The court found no error in the Tribunal's reliance on the report or in its finding that Dixon was not blameworthy.

The court made three orders. First, it refused the application to adduce further evidence. Second, it refused leave to appeal on grounds one to eight. Third, it refused the appeal on ground nine.

Orders

Orders of the court

1. Application to adduce further evidence is refused.

2. Leave to appeal on grounds one to eight is refused.

3. Appeal on ground nine is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Application to adduce further evidence is refused. Leave to appeal on grounds one to eight is refused. Appeal on ground nine is refused. In this matter the Appeal Tribunal consisted of Ms Stilgoe OAM, QCAT Senior Member, and me. I have had the benefit of reading Senior Member Stilgoe’s reasons in draft. I agree with her conclusion, for the reasons given, that leave to appeal should be refused in respect of those grounds requiring leave. I do not, however, consider that leave is required in respect of all grounds.[1][1]Section 142(3), QCAT Act. I also agree with Senior Member Stilgoe’s conclusion, for the reasons which she has given, that the application to adduce further evidence from Dr Vines should be refused. Ground nine set out in the schedule to the amended application for leave to appeal or appeal, is: In its primary submissions and its submissions in reply the appellant contends that it does not require leave to appeal in respect of that ground.[2] In my view, that submission is correct. [2]That ground is paraphrased at paragraph 10(c) of the appellant’s submissions. The respondent’s submissions and the appellant’s submissions in reply refer to paragraph 10(c) of the appellant’s submissions as though that is where the relevant ground of appeal is stated. The imposition of a sentence or penalty which is manifestly inadequate (or manifestly excessive) is an error of law. It is an error of law within the last category of errors which may be committed in the exercise of a discretion identified in House v The King[3]. The High Court of Australia described such errors as follows: An allegation that a sentence is manifestly inadequate is an allegation of that kind of error.[4] A ground of appeal, such as ground nine in this matter, which alleges that the penalty is manifestly inadequate, raises a question of law. [4]Carroll v R (2009) 254 ALR 379 at [8]; Dinsdale v R (2000) 202 CLR 321 per Gleeson CJ and Hayne J at [5] – [6], per Gaudron and Gummow JJ at [22] and per Kirby J at [59]. Mr Dixon submits that leave is required to appeal on the manifest inadequacy ground. He says that whilst such a ground may be characterised as a question of law only, whether it can be so in any particular case will depend upon the context. In this case, he says that the ground is predicated on the Tribunal having fallen into error in finding that he acted appropriately and not a mere failure to weigh the facts as found.[5][5]Respondent’s submissions filed 29 October 2012 at [6] – [9]. On an appeal on a question of law the question raised does not have to be considered and determined by the Appeal Tribunal divorced from the need to look at facts. Rarely could it be when the question of law raised is whether the sentence was manifestly excessive or manifestly inadequate. Each of those is a statement of a conclusion which has been made based upon all the circumstances of the case, which ‘…frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive’.[6] [6]Dinsdale supra at [6].

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.