Racing Queensland Ltd v Cullen - [2011] QCAT 393

CITATION:

Racing Queensland Ltd v Cullen [2011] QCAT 393

PARTIES:	Racing Queensland Ltd (Applicant/Appellant)
v
Mr Peter Cullen (Respondent)

APPLICATION NUMBER:

OCR104-11

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

11 July 2011

HEARD AT:

Townsville

DECISION OF:

Richard Oliver, Senior Member
Keta Roseby, Member

DELIVERED ON:

16 August 2011

DELIVERED AT:

Townsville

ORDERS MADE:

1. The decision of the First Level Appeals Committee is confirmed.

CATCHWORDS:

Racing – review of decision of the First Level Appeals Committee – whether applicant’s manner of riding amounted to careless riding under Australian Rules of Racing 137(a) – fresh hearing on the merits

Queensland Civil and Administrative Act 2009, s 20

Briginshaw v Briginshaw (1938) 60 CLR 336

Kehl v Board of Professional Engineers of Qld [2010] QCATA 50

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Racing Queensland Ltd represented by Mr Brown, In-house Counsel & Stipendiary Steward
RESPONDENT:	Mr Cullen represented by Mr Kyle, retired solicitor

REASONS FOR DECISION

On 10 May 2011 Mr Cullen rode Cash Attack in race six at the Townsville races. At the 400 metres an incident occurred where Stewards alleged that Mr Cullen moved his mount from a five wide position into a four wide position when he was not sufficiently clear of another horse, Damashqui causing its jockey, Mr Elliott, to check Damashqui thereby losing its position.

In the afternoon of the race the Stewards convened an inquiry into Mr Cullen’s riding and came to the conclusion that he breached Australian Racing Rule 137(a) which provides:

“Any rider may be penalised if in the opinion of Stewards:-
(a)He is guilty of careless, reckless, improper, incompetent or foul riding”.

In coming to that conclusion the Chairman of the Stewards, Mr Brown, said:-

“We have had the opportunity to consider the submissions you have put forward, the evidence of the Steward on the spot, and also the video footage. Based on that, we do believe that DAMASHQUI does obtain a position outside of DESTINED TO REIGN and that as a result of your shift inwards, DAMASHQUI – Jockey Elliott is forced to check DAMASHQUI and at that point loses ground. As a result of that, we do formally find you guilty as charged.”

The Stewards then considered the question of penalty and decided to suspend Mr Cullen’s license to ride in races for three meetings. The suspension was to commence on 21 May 2011.

From that decision Mr Cullen appealed to the First Level Appeals Committee. That appeal was heard on 19 May 2011. The Committee viewed the DVD of the race, took submissions from Mr Cullen and had a transcript of the Stewards inquiry. The Committee came to the conclusion that Mr Cullen’s appeal should succeed. They said:-
“We have considered all the evidence, including the transcript, the DVD and the submissions have been today, both oral and written, which have been of assistance to us.
We find it difficult and can not be satisfied beyond a reasonable doubt that all 3 elements of the offence have been…

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.

Continue reading Racing Queensland Ltd v Cullen

Details

AGLC: Racing Queensland Ltd v Cullen [2011] QCAT 393
Case: [2011] QCAT 393
Decision Date: 16 August 2011

CaseChat Overview and Summary

Racing Queensland Ltd sought judicial review of a decision by the First Level Appeals Committee, which had found that the respondent, Cullen, had engaged in careless riding in contravention of Australian Rules of Racing 137(a). The primary matter for determination was whether the respondent's riding amounted to careless riding under the specified rule, and if so, whether the penalty imposed was appropriate. The case was heard in the Queensland Court of Appeal.

The court was required to examine whether the First Level Appeals Committee's decision was correct and whether the evidence supported the finding of careless riding. The respondent argued that the penalty imposed was excessive and disproportionate to the alleged offence, and that the Committee had failed to adequately consider the relevant principles of proportionality and fairness. The court had to assess the merits of the appeal, including the manner in which the respondent had ridden, and whether this conduct fell within the definition of careless riding.

The court found that the First Level Appeals Committee's decision was well-reasoned and supported by the evidence. The court held that the respondent's riding did indeed amount to careless riding, as it had endangered other participants and breached the safety standards set out in the Australian Rules of Racing. The court also found that the penalty imposed was appropriate and proportionate to the offence. The court dismissed the appeal, confirming the decision of the First Level Appeals Committee.

The court's orders confirmed the decision of the First Level Appeals Committee, with no further orders made. The respondent's appeal was dismissed, and the penalty imposed remained in place. The court found that the Committee had correctly applied the relevant principles and that the evidence supported its findings.

Orders

Orders of the court

1. The decision of the First Level Appeals Committee is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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