QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Scott v Queensland Racing Integrity Commission (No 2) [2018] QCAT 301
PARTIES:
RACHEL LEIGH SCOTT
(applicant)v QUEENSLAND RACING INTEGRITY COMMISSION
(respondent)
APPLICATION NO/S:
OCR252-16
MATTER TYPE:
Occupational regulation matters
DELIVERED ON:
3 September 2018
HEARING DATE:
13 and 14 August 2018
HEARD AT:
Brisbane
DECISION OF:
Member Gordon
ORDERS:
1. By consent, the application for review is treated as amended without reservice, so as to be an application for a review only in respect of penalty.
2. The decision of the Queensland Racing Integrity Commission is set aside as to penalty.
3. Rachel Leigh Scott shall be suspended for 3 months starting on 18 September 2018 and the following conditions apply:-
(a) while suspended Ms Scott may not nominate horses to race or start horses trained by her in races; but
(b) she may care for, i.e. feed, water, groom and exercise her horses, during the period of suspension.
4. Rachel Leigh Scott shall pay a fine of $6,000 by 18 September 2018.
5. The parties have liberty to apply as to the date when the suspension is to start.
CATCHWORDS:
PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – Harness Racing Trainers – where admitted failure to present a horse free of prohibited substances – where urine sample was above the permitted level of cobalt – where the cause of this was found to be a build up of cobalt levels over time – where it was due to carelessness in the feeding and supplement regime – whether this was a mitigating factor – whether the appropriate penalty was disqualification or some lesser penalty
Australian Harness Racing Rules, r 188A, r 190, r 259
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20
Racing Act 2002 (Qld), Chapter 4, Part 4
Racing Integrity Act 2016 (Qld)Abbott v Racing Queensland Limited [2012] QCAT 230
Demmler v Harness Racing Victoria Racing Appeals and Disciplinary Board [2017] VCAT 600
Dixon v Racing Queensland Limited [2012] QCAT 331
Doughty v Racing Queensland Limited [2012] QCAT 678
Hooper v Queensland Racing Integrity Commission [2017] QCAT 236
Hudson v Queensland Racing [2008] QRAT 8
Kavanagh v Racing Victoria Limited (No 2) (Review and Regulation) [2018] VCAT 291
Lambourn v Racing Queensland Limited [2011] QCAT 488
Manzelmann v Racing Queensland Limited [2013] QCAT 45
Morrisey v Queensland Racing Integrity Commission [2018] QCAT 161
Neale William Scott v Queensland Racing Integrity Commission (unreported 20 December 2016)
Non Raceday Inquiry RIU v G R Dixon 10 April 2018
Non Raceday Inquiry RIU v G Richardson and G Parker 13 July 2017
Queensland Police Service v Compton (No 2) [2011] QCATA 246
Queensland Racing Integrity Commission v Gilroy [2016] QCATA 146
RVL Stewards v Peter Moody (Racing Appeals and Disciplinary Board – penalty 17 March 2016
Ryan v Queensland Racing [2006] QRAT 6
Smith v Racing Queensland Limited [2013] QCAT 23
Tim Cook t/as Tim Cook Racing v Racing Queensland Ltd [2012] QCAT 239
Wallace…
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- Case
- [2018] QCAT 301
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the penalty imposed by QRIC was excessive and whether it conformed to the principles of consistency, fairness, and general deterrence in similar cases. The Court needed to examine the nature of the breach, the level of culpability, and the penalties imposed in comparable cases. It was essential to consider whether the penalty adequately balanced the need for deterrence with the mitigating factors, such as the lack of intent to harm the horse or enhance performance. The Court also had to review whether the penalty reflected a consistent approach to similar infractions within the racing industry.
In delivering the judgment, the Court of Appeal noted that the penalty imposed by QRIC was disproportionate to the breach committed by Ms Scott. The Court found that Ms Scott's actions were due to carelessness rather than deliberate intent to harm the horse or enhance its performance. The Court highlighted that while the presence of cobalt in the horse's system was a serious matter, the level of culpability in this case did not warrant such a severe penalty. The Court emphasised the need for penalties to be consistent and proportionate to the offence, taking into account both deterrent and mitigating factors. The Court also drew comparisons with previous cases, noting that the penalties for similar breaches had varied significantly, leading to concerns about consistency in the enforcement of racing regulations.
The Court of Appeal set aside the penalty imposed by QRIC and substituted a lesser penalty. The Court ordered that Ms Scott be suspended for three months, starting on 18 September 2018, and that she pay a fine of $6,000 by the same date. The Court emphasised the importance of ensuring that penalties were proportionate to the offence and took into account the level of culpability and mitigating factors. The Court also noted the importance of achieving consistency in the enforcement of racing regulations and highlighted the need for QRIC to review its penalty framework to ensure it was fair and appropriate.
Orders
Orders of the court
1. By consent, the application for review is treated as amended without reservice, so as to be an application for a review only in respect of penalty.
2. The decision of the Queensland Racing Integrity Commission is set aside as to penalty.
3. Rachel Leigh Scott shall be suspended for 3 months starting on 18 September 2018 and the following conditions apply:-
(a) while suspended Ms Scott may not nominate horses to race or start horses trained by her in races; but
(b) she may care for, i.e. feed, water, groom and exercise her horses, during the period of suspension.
4. Rachel Leigh Scott shall pay a fine of $6,000 by 18 September 2018.
5. The parties have liberty to apply as to the date when the suspension is to start.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Then there is Morrisey v Queensland Racing Integrity Commission [2018] QCAT 161, where a horse was presented with cobalt levels over the permitted level. The trainer had been negligent in the limited extent of his inquiry into the contents of the product which he fed to the horse, but this did not amount to recklessness or a deliberate act.[39] It was therefore a category B case. The trainer was suspended for 9 months but that period of suspension was suspended after 5 months for a period of 12 months.[39]Paragraph [21].Penalty considerations When determining penalty, the need for general and personal deterrence and any aggravating factors must be balanced against the mitigating factors to try to achieve the correct penalty in all the circumstances. This has been described as ‘meeting the competing demands of deterrence and mitigating circumstances’.[40] As mentioned above, another aim is consistency.[40]R v Osborne [2014] QCA 291, [45]. Consistency is difficult to achieve perfectly because as can be seen from the analysis above, there are considerable variations in the penalties imposed where a horse is presented for a race with a prohibited substance above the permitted level. Sometimes the penalty seems to turn on the nature of the prohibited substance found in the horse – with those that are considered more serious for one reason or another including possible danger to the horse, like TCO2 or cobalt, attracting higher penalties. Unfortunately, the reported decisions do not always indicate the seriousness of the particular substance found, or the effect that they can have on the horse. In other cases it is clear that the question of the level of blameworthiness has been paramount, even to the extent of completely overriding the need for a general deterrent, as in Dixon. For cobalt, QRIC say that the appropriate range of periods of disqualification should be between 12 and 15 months. But this would mean that presenting a horse over the permitted level for cobalt would be penalised 2 or 3 times as severely as presenting a horse over the permitted level for TCO2. There has been no reason given as to why that should be the case. Both substances are, or at least are thought to be, performance enhancing and both are potentially dangerous to the horse at high levels. There is no evidence before me suggesting that there is any greater reason for general deterrence in the case of one or the other. There appear to be considerable differences in the penalties imposed for exceeding cobalt levels in Australia and in New Zealand. It is possible this is the result of uncertainty, as expressed in some of the authorities, about whether cobalt is performance enhancing. It seems however to be generally accepted that high levels of cobalt could be dangerous to a horse. It is right that I seek to follow the Queensland precedents in preference to others, and in the circumstances my starting point assuming a category C (no explanation) or D (moral blameworthiness) case for a first offence is between 6 months’ disqualification (as in the TCO2 cases) and 12 months’ disqualification (as in Hooper), possibly with a subsequent period of suspended suspension for a shorter disqualification period (as in Neale William Scott and Weeks).