Richardson v Racing Queensland Ltd
[2013] QCAT 95
| CITATION: | Richardson v Racing Queensland Ltd [2013] QCAT 95 |
| PARTIES: | Adam Phillip Richardson (Applicant) |
| v | |
| Racing Queensland Ltd (Respondent) |
| APPLICATION NUMBER: | OCR415-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 21 January 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Richard Oliver, Senior Member Mr John Bertelsen, Adjudicator |
| DELIVERED ON: | 26 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Stewards is confirmed |
| CATCHWORDS: | Harness Racing – whether unacceptable drive by the applicant – consideration of whether conduct blameworthy – whether error of judgment. Queensland Civil and Administrative Tribunal Act s 20 McMullen v Racing Queensland Ltd[2012] QCAT 286; Misfud v Racing Victoria Stewards [2007 VRAT 6; Green v Racing Queensland Ltd [2012] QCATA 269 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Richardson was represented by Mr Neaves of counsel |
| RESPONDENT: | Racing Queensland Ltd was represented by Mr McLune of Racing Queensland Ltd |
REASONS FOR DECISION
Mr Richardson was the driver of the horse, Jasper In Flight, in race 4 at the Redcliffe Paceway on 12 December 2012. Jasper In Flight was not a favourite in the race and started at long odds (100-1).
At the commencement of the race when the horses left the barrier, there were two horses to its inside, it being three wide to Waipawa Lord and Bustling Benny. Waipawa Lord was the favourite with a starting price of $1.50 and Bustling Benny was at 10-1. Jasper In Flight got off to a reasonably good start and Mr Richardson drove the horse hard in the early stages of the race however being three wide he was unable to maintain the pace with the two inside horses and at or about the 500-600 metre mark, dropped back in the field and ultimately finished last by about 83 metres.
Stewards were critical of Mr Richardson’s drive in taking on the two favourites in the race in the early stages in circumstances where it was unlikely Jasper In Flight was going to be able to move into a favourable position either in front of or stay with the leaders for the whole of the race.
As a consequence, the stewards immediately convened an inquiry after the race. After hearing evidence from both Mr Richardson and the trainer of the horse, Mr Hassum, they decided to charge Mr Richardson with a breach of Rule 149(2) of the Australian Harness Racing Rules which requires that a person shall not drive in a manner which, in the opinion of the stewards, is unacceptable. The stewards were satisfied that the drive by Mr Richardson was unacceptable and suspended his license for a period of 4 weeks.
Mr Richardson appealed to the first level Appeals Tribunal within Racing Queensland. After hearing submissions from both Mr Richardson’s counsel and Racing Queensland, the first level appeal committee dismissed the appeal.
Mr Richardson then filed an application to review the decision of the stewards in the Tribunal. The function of the Tribunal in a review of decision is to produce the correct and preferable decision by way of a fresh hearing on the merits.[1]
[1] QCAT Act section 20
A hearing was conducted on 21 January 2013 during which we received evidence from the parties, and viewed a DVD of the particular race in question.
Mr Richardson told the Tribunal that prior to the race, he had considered the form of the other runners in the race and discussed tactics with Mr Hassum, the trainer. He considered a tactic of initially trying to take the lead, or “the breeze” from Waipawa Lord to put his horse in a good position to be competitive in the race. Mr Richardson stayed 3 wide out with the leaders until he came into the home straight for the first time. Mr Richardson told the Tribunal that at that point, he had to make a decision whether to stay up with the leaders, or move back in to the field to try and take up the position which was more advantageous to his horse. He says that he had in mind, the instructions from Mr Hassum to take the horse forward and decided then, to press the horse forward soon after the winning post at or about the 400 metre mark. It soon became obvious to him that his position was not going to improve; the horse was tiring quickly, so he then dropped back into the field. As he was moving back, he heard the horse breathing loudly and being concerned that the horse was going to “choke down” he fell into last place behind the field. After that although his position did not improve he did continue in the race and finished in the position stated above.
Mr Hassum, met up with Mr Richardson after the race, and after they had a conversation about the horse’s performance both came to the view that the horse had choked down which they attributed to his poor performance.
A vet check was called for and Jasper In Flight was examined by Dr McGuiness, Veterinary Surgeon, but no abnormality was found. Dr McGuiness gave evidence during the hearing and said that the term “choking down” is not a term used by Veterinarians but rather a layman’s term. If a horse cannot breathe properly, it is usually a problem with the horse’s larynx or throat causing the horse to become quite distressed and leading to hypoxia. A horse that experiences a severe breathing problem will generally show symptoms for quite some time after the episode. Jasper In Flight did not exhibit any such symptoms. He concluded, that the symptoms described to him by both Mr Richardson and, a driver of another horse in the race Mr Whittaker, was more likely to be fatigue rather than any physical ailment. We have no hesitation in accepting Dr McGuinness’ evidence on this point.
The stewards contend that Mr Richardson’s drive was unacceptable because, after staying three wide with the two horses to the inside up to the straight at or about the 400 metre mark, it ought to have been obvious to Mr Richardson that Jasper In Flight could not maintain that pace in the class of horses on the inside. To then press the horse forward when it had no prospect of being in contention was unacceptable driving. Having made the decision to do so, when it was time for the horse to come back into the field, it had no prospect of taking up a position which would then be competitive. Also Mr Richardson could have no expectation that other drivers trailing the leaders would let him back into the field. A question for the Stewards, and this Tribunal now is whether or not the actions of Mr Richardson amounted to an error of judgment or were they unreasonable and unacceptable in the circumstances.
The test to be applied is that set out in McMullan v Racing Queensland Ltd[2]. In that case the Tribunal referred to Misfud v Racing Victoria Stewards[3] where it was said that for disciplinary action to be taken against the driver, it must be established that the driver must be found to have been blameworthy in the manner in which the horse was driven in the race in question. That of course is distinct from a situation where the actions of the driver might be regarded as an error of judgment or a split second decision resulting in a mistaken choice.
[2] [2012] QCAT 286
[3] [2007] VRAT 6
Applying that test here, we do not think it can be said that Mr Richardson’s decision when he came in to the straight to put further pressure on Jasper In Flight was an error of judgment when he could not have had any reasonable expectation that the horse was likely to take up the lead or stay in a favourable position to make it competitive in the race. We accept that there was nothing blameworthy in his actions to press the horse at the start to test the favourites but being three wide for about 400 metres, and obviously covering much more ground than the shorter priced horses, and then expecting to put pressure on the inside horses with the use of the whip was unlikely to result in him being in a position of contention.
We are mindful of what Mr Hassum told the stewards and recorded in his statement that when Jasper In Flight did not reach the lead or breeze after the first 100 metres, Mr Richardson was then left with a tough decision which could either turn into a work of genius or not at all. This was not a decision in the heat of the moment or an error of judgment, it was a conscious decision after 400 metres being three wide to pressure the horse when he knew or ought to have known the horse had no real prospects of achieving any positive result. The horse was quickly tiring and as soon as Mr Richardson eased off, the horse fell quickly back into the field to take up the position of last.
We accept that the horse may have been making a loud breathing noise but on the evidence of Dr McGuiness we can’t accept that the horse “choked” and that was the reason why Mr Richardson had to ease up on the horse.
The DVD shows that although Jasper In Flight, being a 100-1 prospect, ran a very fast initial sectional time, but having regard to his form it was unlikely he was going to be able to maintain that pace to get in a good position to take on the favourites.
Mr Richardson submits that the sectional times were not out of the ordinary and in fact the week before Jasper In Flight ran similar times. Despite that, once Mr Richardson realized that he was not in contention with the two favourites, he should have, as the stewards alluded to, come back in behind them with cover and continued the race so as to put Jasper In Flight in the best possible position in the race. We are also mindful of what Member Dodds said in Green v Racing Queensland Ltd[4] that the Stewards embody a considerable deal of knowledge and experience about harness racing and their opinion is deserving of considerable weight when considering whether Mr Richardson’s conduct is blameworthy. We therefore confirm the decision of the stewards.
[4] [2012] QCAT 269
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