Racing Queensland Limited v Dixon
[2013] QCATA 172
•19 June 2013
| 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: |
|
| 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 |
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 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.
The Question of Leave – Manifestly Inadequate Penalty Ground
Ground nine set out in the schedule to the amended application for leave to appeal or appeal, is:
Further, and/or in the alternative, if the aforementioned findings by the Tribunal are found not to be in error, the Tribunal erred in law in imposing a penalty which was in all of the circumstances manifestly inadequate.
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:
It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellant court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact incurred.
[3](1936) 55 CLR 499 at 505.
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].
Provided that the question raised by the relevant appeal ground is properly framed as a question of law then the appeal on that ground may proceed before the Appeal Tribunal as of right. Leave is not required.[7]
[7]For an analysis of the analogous requirement under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) that an appeal to the Federal Court of Australia from the AAT be on a question of law, see Collins v AAT (2007) 96 ALD 536 at [55] per Allsop J.
In Seymour v Racing Queensland Limited[8] the Appeal Tribunal noted that it will not be unusual that a decision of QCAT will give rise to both an appeal on a question (or questions) of law and an application for leave to appeal on a question (or questions) of fact or mixed fact and law. It observed that where that is so, then it is important that the Appeal Tribunal not burden a right to appeal from a decision of QCAT on a question of law with a requirement to obtain the Tribunal’s leave to do so. Such an approach would impermissibly impose a limit on appeal rights not imposed by the legislation.[9]
[8][2013] QCATA at [10].
[9]Ibid at [18].
The Appeal Tribunal noted the potential to commit such an error when grounds which truly raise only a question of law were characterised, as the respondent does here, as being inextricably linked to other grounds involving questions of fact.
Mr Dixon’s characterisation of the manifestly excessive ground as being predicated on the Tribunal having erred in finding that he had acted appropriately, and thus involving a question of fact, could not be correct in respect of ground nine as set out in the appeal as filed. Ground nine is expressly stated to be advanced on the basis that the Appeal Tribunal found that the other findings of the Tribunal challenged by Racing Queensland had not been made in error. It is on this basis that ground nine can be viewed as being a truly discrete ground raising only a question of law.
However, the characterisation of the manifestly inadequate ground which Mr Dixon makes in his submissions stems not from ground nine as framed in the appeal document, but from the way in which that ground is developed in the submissions of Racing Queensland.
One of the errors otherwise raised by Racing Queensland, but upon which ground nine was said not to be dependent, was ground eight. It was in these terms:
In the premises of those matters referred to in the preceding paragraph, the Tribunal erred in finding that there was no personal blameworthiness on the part of the respondent.
Notwithstanding that ground nine was said to be independent of ground eight, Racing Queensland’s submissions on the manifestly inadequate ground concluded:
It is submitted that for the reasons set out above, this matter is distinguishable from the Waterhouse case, and the circumstances are such so as to not relieve Dixon of any wrongdoing. Having regard to other penalties imposed for this type of offence, it is submitted that the penalty imposed by the Tribunal was manifestly inadequate.[10]
[10]Appellant’s submissions filed 16 October 2012 at [52].
The reference to the Waterhouse case[11] was a reference to the Tribunal’s finding that the circumstances of Mr Dixon’s case were ‘on all fours with the Waterhouse case’.[12]
[11]In the matter of the appeal of the licensed trainer Gai Waterhouse Racing New South Wales Appeal Panel (2 September 2005).
[12]Dixon v Racing Queensland Limited [2012] QCAT 331 at [22].
In the Waterhouse case, the Racing New South Wales Appeal Panel had found that the contamination there being considered could not be attributed, in a blameworthy way, to the trainer.
It is thus apparent that Racing Queensland does seek to make a collateral challenge to the Tribunal’s finding as to Mr Dixon’s blameworthiness in its submissions on the manifestly inadequate penalty ground. Racing Queensland does not proceed in its submissions on that ground on the basis that the Tribunal’s finding as to Mr Dixon’s lack of blameworthiness is to be accepted as correct.
The Tribunal decided to set aside the decision of Racing Queensland, and in its place impose no penalty, ‘Because we have come to the view that there is no personal blameworthiness on the part of Mr Dixon’.[13] In its submissions to the Appeal Tribunal, Racing Queensland has, separately, made submissions in support of ground eight and its contention that the Tribunal’s finding that there was no personal blameworthiness on Mr Dixon’s part could not be sustained.[14] Racing Queensland had concluded those submissions as follows:
Having regard to the above, and that prior to administering the supplement to the horse he did not seek guidance from a vet, or seek other professional guidance (notwithstanding he had never used it before), it is submitted that it was not open on the evidence to find that there was no personal blameworthiness on the part of Dixon.
[13]Ibid at [31].
[14]Appellant’s submissions filed 16 October 2012 at [40] – [45].
In submissions in reply, Racing Queensland disputed the respondent’s characterisation of its manifestly inadequate penalty ground as being predicated on the Tribunal having fallen into error in finding that the respondent acted appropriately. Rather, it said, its manifestly inadequate ground was:
Predicated on whether having regard to all the circumstances of this matter, as they were found to be by the Tribunal:
(a) this case was ‘on all fours with the Waterhouse Case’, and/or
(b) sufficient consideration was had to the nature of the conduct of the respondent.[15] (original emphasis)
[15]Appellant’s submissions in reply filed 29 November 2012 at [7].
This submission does not assist the appellant. It inverts the process of reasoning to be undertaken on the appeal and demonstrates the error in the appellant’s approach.
The question of manifest inadequacy which must be decided on the appeal does not require any consideration of whether, on the facts found by the Tribunal, the case was on all fours with the Waterhouse case. Rather, that the case was on all fours with the Waterhouse case was itself one of the circumstances found by the Tribunal. To prosecute the manifestly inadequate penalty ground as a question of law, as raised in ground nine, Racing Queensland must do so in acceptance of that finding and without making a collateral attack upon it.
The appellant’s further submissions in reply also challenged the correctness of the Tribunal’s findings as to blameworthiness.[16]
[16]Ibid at [9] – [12].
The appellant does not otherwise develop its submission at paragraph 52 as set out above that the penalty was manifestly inadequate having regard to other penalties imposed for this type of offence.
Racing Queensland has failed to show an appealable error of law. Of course, in the absence of demonstrated error of the kind identified in House v The King, it is impermissible for the Appeal Tribunal simply to substitute its own opinion as to the appropriate penalty.
The appeal on the manifestly inadequate ground should be dismissed.
Disposition
The orders I would make are:
1. Application to adduce further evidence refused.
2. Leave to appeal on grounds one to eight is refused.
3. Appeal on ground nine dismissed.
Peta Stilgoe, Senior Member
Mr Dixon trained the filly Mamanuca. On 8 June 2012, she raced at Redcliffe. Racing Queensland Limited tested a blood sample taken from Mamanuca that day and found that she had a total carbon dioxide (TCO2) level in excess of prescribed limits. Racing Queensland charged Mr Dixon with a breach of Australian Harness Racing Rule 190 – presenting a horse with a prohibited substance.
The Stewards found Mr Dixon guilty. He was disqualified from holding a trainer’s licence for six months. Mr Dixon appealed to the Tribunal; the Tribunal set aside the disqualification and ordered that no penalty be imposed.
Racing Queensland appeals that decision on a question of law. It says that the Tribunal erred in finding that an investigation conducted by Dr van Eps established that the administration of a supplement would substantially increase the TCO2 level because that finding was not open on the evidence. Racing Queensland also says that the Tribunal did not give sufficient weight to Mr Dixon’s admissions about the administration of the supplement. As a consequence, Racing Queensland says, the Tribunal erred in finding that ‘there was no personal blameworthiness on the part of Mr Dixon’.
Racing Queensland’s submissions show that this is an appeal of mixed fact and law. Leave is necessary.[17] The question whether or not leave to appeal should be granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?[18] Is there a reasonable prospect that the applicant will obtain substantive relief?[19] Is leave necessary to correct a substantial injustice caused by some error?[20] Is there a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage?[21]
[17]QCAT Act, s 142(3)(b).
[18]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[19]Cachia v Grech [2009] NSWCA 232 at 2.
[20]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[21]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
Racing Queensland want to rely on a report from Dr Vine, which he prepared after considering the transcript of the proceeding before the Stewards on 21 June 2012. Dr Vine’s report responds to Dr van Eps’ report.
The Appeal Tribunal will only accept fresh evidence if it was not reasonably available at the time the proceeding was heard and determined. Ordinarily, an application for leave to adduce such evidence must satisfy three tests. Could Racing Queensland have obtained the evidence with reasonable diligence for use at the trial? If allowed, would the evidence probably have an important impact on the result of the case? Is the evidence credible?[22]
[22]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404 at 408.
An application for leave to appeal is not, and should not be, an attempt to shore up the deficiencies of a party’s case at the initial hearing.
Dr Vine analysed a batch of Green Amino so that he could comment on Dr van Eps’ findings. The chemical make up of Green Amino was always an issue in this dispute and Racing Queensland has not explained why it did not conduct these tests earlier. Dr Vine draws conclusions about Mr Dixon’s administration of Green Amino. He refers to studies, but he does not give details of those studies. He offers conclusions about what Mamanuca might have done or what effect Green Amino might have had. He criticises Dr van Eps’ testing procedure. The credibility of Dr Vine’s evidence has not been tested and we are not persuaded that he has properly articulated the basis for his conclusions.
The Tribunal received Dr van Eps’ report on 4 July 2012. Mr James, counsel for Racing Queensland, cross-examined Dr van Eps about his report. Mr James asked Dr van Eps the average TCO2 level for a horse.[23] He asked Dr van Eps what procedure he adopted for the analysis and whether there was any other explanation for the elevated TCO2 level.[24]
[23]Transcript page 8 lines 32 – 45.
[24]Transcript page 9 lines 1 – 36.
Racing Queensland did not ask for an adjournment of the hearing so that it could get Dr Vine to do further testing or provide a further report. All of the matters Dr Vine refers to, with some effort by Racing Queensland, could have been available for the original Tribunal. Racing Queensland has provided no explanation as to why this material was not available earlier. That evidence should not be admitted and the application for leave to appeal must proceed on the basis of the evidence before the learned Members.
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[25]
[25]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
An appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[26] As the High Court said in Fox v Percy:
In such circumstances, the appellate court is not relieved of its statutory function by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.[27]
[26]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[27]Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Gummow and Kirby JJ.
The Tribunal did find that the administration of Green Amino will substantially increase the TCO2 levels in a horse.[28] We agree that Dr van Eps’ report does not go that far. He concluded that Mamanuca had a high TCO2 reading immediately prior to dosing. He also found that the combination of Green Amino and withholding water resulted in a marked increase in TCO2. However, for the reasons that follow, we do not consider that the Tribunal’s reliance on Dr van Eps’ report is a sufficient reason to grant leave to appeal.
[28] Dixon v Racing Queensland Limited [2012] QCAT 331 at [15].
The Tribunal’s decision rested on the finding that the Green Amino label gave Mr Dixon no reason to suspect that it contained alkalising agents. They noted that Mr Dixon read the packet and the instructions for use.[29] They referred to the evidence from Dr Young, a veterinarian with the Racing Science Centre, who also said that there was nothing on the label which would alert Mr Dixon to the potential for a raised TCO2 level.[30] Doctors Jarrett and Hill shared that view.[31] We have no reason to come to a different view.
[29]Supra at [16].
[30]Supra at [17].
[31]Stewards transcript page 30.
Racing Queensland says that the facts do not support the Tribunal’s finding that Green Amino was the most likely explanation for the excessive TCO2 level. There was no dispute that Mr Dixon’s only change to his pre-race routine was the administration of Green Amino. The experts all agreed that Green Amino could raise the TCO2 levels although they thought that there was not enough alkalising material to cause the levels found in Mamanuca.
Racing Queensland says that the Tribunal should not have decided that Mr Dixon was not “blameworthy”. It points to Mr Dixon’s admission that a reference to sodium on the label of Green Amino should have alerted him to further inquiry. That is one piece of evidence amongst many and Mr Dixon made that comment in the Stewards’ inquiry with the benefit of hindsight. The Tribunal also had evidence from experts that the ingredients did not indicate any alkalising ingredient. Green Amino was clearly marketed at the horse racing industry.[32] The supplier was well-known and respected in the industry. As the learned Senior Member pointed out, the explanation ‘doesn’t have to be a Rolls Royce explanation; it is an explanation’.[33]
[32]Transcript page 25 at 7
[33]Transcript page 19 at 1
It is not our task to decide where the truth lay as between the competing versions given by the parties.[34] Our sole duty is to determine whether there is an error in the primary decision. Reasonable minds can differ but we are not persuaded that the Tribunal’s decision cannot be supported by the evidence and we can find no good reason to set aside the Tribunal’s decision.
[34]Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ.
There is no question of general importance that should be determined by the Appeal Tribunal; there is no reasonably arguable case that the learned Adjudicator was in error; there is no reasonable prospect of substantive relief on appeal; and there is no evidence that a substantial injustice will result if leave is not granted. Leave to appeal should be refused.
I agree with the orders proposed by the Deputy President.
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