Seymour v Racing Queensland Ltd
[2013] QCATA 179
•19 June 2013
| CITATION: | Seymour v Racing Queensland Ltd [2013] QCATA 179 |
| PARTIES: | Arthur Seymour (Appellant) |
| v | |
| Racing Queensland Limited (Respondent) |
| APPLICATION NUMBER: | APL229-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Alexander Horneman-Wren SC, Deputy President |
| DELIVERED ON: | 19 June 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is granted. 2. Appeal dismissed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – where the trainer was found to be careless or negligent in not stitching bandages – where the Panel of Stewards suspended the trainer’s licence – where the Tribunal confirmed the decision of the Panel of Stewards – where the appellant’s grounds of appeal included questions of mixed law and fact and questions of law – where leave is required for questions of mixed law and fact – whether leave to appeal should be granted APPEAL – where the trainer was found to be careless or negligent in not stitching bandages – where the Panel of Stewards suspended the trainer’s licence – where the Tribunal confirmed the decision of the Panel of Stewards – where a ground of appeal was the Tribunal erred by misstating the test for rule 140A of the Australian Rules of Racing – whether the Tribunal applied the correct test Australian Rules of Racing r 140A, r 140B Broadbent v Medical Board of Australia [2010] QCA 352, 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
On 15 February 2012 a Panel of Stewards of Queensland Racing Limited found Mr Arthur Seymour, a licensed racehorse trainer, guilty of breaching AR 140A of the Australian Rules of Racing. After considering submissions on penalty made on Mr Seymour’s behalf, the Stewards suspended his trainer’s licence for a period of six months. The decision on penalty was notified to Mr Seymour by a letter from the Chairman of Stewards dated 10 April 2012.
Mr Seymour sought a review of the steward’s decision in the Queensland Civil and Administrative Tribunal. By decision dated 18 June 2012 the Tribunal confirmed the decision of Queensland Racing.[1]
[1]Seymour v Racing Queensland Limited [2012] QCAT 241; The decision and order of 18 June 2012 each refer to the decision of Queensland Racing made on 10 February 2012. This appears to be a typographical error. It should refer to the decision of 10 April 2012.
Mr Seymour had been charged with a breach of AR 140A after a horse which he trained, ‘Under Construction’, fell during trackwork at the Julia Creek racetrack on 12 November 2011. The trackwork was being conducted after the conclusion of a race meeting held that day. The jockey of Under Construction suffered fatal injuries in the fall.
The basis for the finding that Mr Seymour had breached AR 140A was that the bandages worn by the horse during the trackwork had not been stitched as required by the National Gear Register and that this was careless or negligent.
Mr Seymour now wishes to appeal the Tribunal’s decision to the Appeal Tribunal.
Grounds of Appeal – The question of leave
Mr Seymour’s application raises five grounds of appeal. They are:
1.
(a)The Tribunal erred in ruling that the Appellant’s conduct amounted to a breach of Rule 140A, rather than a breach of Rule 140B;
(b)The Tribunal erred in ruling that the test for a breach of Section (sic) 140A of the Rules of Racing is “what a reasonable person in the particular situation associated with the fitting of the gear on the day would have done”;
(c)The Tribunal erred in finding that the Appellant’s conduct, in not stitching the bandages fitted to the horse Under Construction, was careless or negligent.
2.The Tribunal erred in finding that the fall of Under Construction was caused by the conduct of the Appellant.
3.The Tribunal erred in imposing a penalty which was manifestly excessive in all of the circumstances.
In his submissions, Mr Seymour states that grounds 1(c), 2 and 3 appear to require leave.[2] Racing Queensland concurs that leave is required in respect of those grounds. It contends though that leave is also required in respect of grounds 1(a) and 1(b) because those grounds are not solely questions of law. It contends that the issue advanced by the appellant of whether the Tribunal failed to apply the test for carelessness or neglect ‘…is inextricably linked with the factual issues raised in Appeal Ground 1(c)…’ and, on that basis, ‘…[i]s, at least, a question of mixed law and fact’. It submits that grounds 1(a), (b) and (c) go to whether Mr Seymour was in breach of AR 140A, and that this is a question of mixed law and fact. That submission is correct in respect of grounds 1(a) and (c). Of course, the appellant concedes that to be so in respect of ground 1(c).
[2]Queensland Civil and Administrative Tribunal Act 2009, s 142(3).
As to ground 1(a), the issue agitated in Mr Seymour’s submissions is more than merely whether facts fully found satisfied one statutory provision[3] of the rules or another. Had the issue been so restricted, that would have been a question of law.[4] However, the argument advanced includes that the Tribunal misstated the applicable test under AR 140A and thus misapplied (or perhaps, more accurately, failed to apply at all) the appropriate test to Mr Seymour’s conduct.[5] The issue of foreseeability, which forms part of the appropriate test, was not, so it is said, considered. Furthermore, it is said that the facts would not support a finding that fitting the bandages in the way they were would be likely to cause the animal to fall. This involves a question of fact.
[3]The Rules of Racing are statutory instruments: Racing Act 2002 (Qld), s 79.
[4]Hope v Bathurst City Council (1980) 144 CLR 1 at 7.
[5]Appellant’s submissions at [5] and [7].
However, ground 1(b), viewed discretely, seems to me to raise solely a question of law. It is solely a question of the content of the test to be applied under AR 140A. It has no factual element. Therefore, in my view, Mr Seymour has an appeal as of right in respect of that question. Leave is not required.
It is not unusual that an appeal on certain grounds from a decision, and an application for leave to appeal on other grounds, are included in the one document. Section 143(2) of the QCAT Act applies to each interchangeably. Section 143(2) requires that each must be in a form substantially complying with the rules and must state the reasons for the application or appeal.
Rule 95 of the Queensland Civil and Administrative Tribunal Rules 2009 also applies equally and interchangeably to an appeal and an application for leave to appeal. It requires each to be made in the approved form. The approved form for either is Form 39. It is headed ‘Application for leave to appeal or appeal’.
Part C of the form requires identification of the grounds of appeal. The form does not indicate any distinction to be made as between the grounds for which leave to appeal is sought and those in respect of which an appeal is brought as of right.[6] I acknowledge that part of Form 39 addresses the issue of leave to appeal. It provides that a selection be made between these alternatives: that leave to appeal is not required; that leave to appeal is being sought; or that leave to appeal has already been granted. The form directs that one alternative only be selected, and that details be provided. In this case Mr Seymour ticked the box which indicated that leave to appeal was being sought. That was appropriate, as leave to appeal is required for some grounds. The form did not alternatively accommodate an indication by him that he was also appealing on other grounds which did not require leave.
[6]An analogous situation arises under r 65 and r 66 of the Criminal Practice Rules. Rule 65 deals with applications for leave to appeal and r 66 with appeals. Form 26 ‘Notice of appeal or application for leave to appeal against conviction or sentence’ is the approved form under both rules. Form 26 does not distinguish between grounds which require leave and those which do not. An appellant need file only one document in which all grounds are raised; see the analysis in R v NM [2012] QCA 173 per Holmes JA at [2]-[3].
Of course, substantive rights of appeal cannot be removed or restricted by a form requiring an election to be made between appealing on some grounds or seeking leave to appeal on others.
The consideration of an application for leave to appeal is an important step. Not least because the statute prescribes it as a separate step from the appeal.[7]
[7]Section 142(3)(b); and see the analysis of the analogous provision, s 149(3)(b), in Broadbent v Medical Board of Queensland [2010] QCA 352 per Chesterman JA at [44]-[45].
Furthermore, if leave to appeal is granted, the appeal proceeds by way of a rehearing upon which additional evidence may be admitted by the Appeal Tribunal.[8]
[8]Section 147(2).
The nature of an appeal brought as of right on a question of law is different. The subject matter and the scope of the appeal is limited to the question of law. It does not operate as a rehearing of the whole matter. It is not a general review of the Tribunal’s decision.[9]
[9]Compare Brown v Repatriation Commission [1985] 60 ALR 289 at 291-2.
The powers of the Appeal Tribunal in disposing of the appeal are also different in each instance. On an appeal conducted as a rehearing when leave is granted, the Appeal Tribunal may either confirm or amend the decision; or set the decision aside and substitute its own decision.[10] On an appeal on the question of law, the Appeal Tribunal can exercise those powers but, in addition, may also set aside the decision and return the matter to the Tribunal for reconsideration, with or without directions, or make any other order the Appeal Tribunal considers appropriate.[11] Those powers are consistent with an appeal which has not proceeded by way of rehearing but which has been restricted to the question of law raised.
[10]Section 147(3).
[11]Section 146.
In a case in which the grounds of appeal raise both a question (or questions) of law and a question (or questions) of fact or mixed law and fact, and leave to appeal in respect of the latter is granted, then the distinction between the nature of the appeal and the powers exercisable by the Appeal Tribunal will lose significance. However, in a case in which leave to appeal on the grounds involving fact is refused, it is important that the integrity of the appeal as of right on the question of law alone is preserved. That integrity will not be preserved, and the right to appeal on a question of law will be lost, if the Appeal Tribunal impermissibly subjects those grounds to a requirement to obtain leave which the statute does not impose.
Viewing discrete questions of law as being inextricably linked to questions of fact, runs the risk of imposing a requirement to obtain leave to appeal on grounds upon which the appeal is of right under the legislation. Had the question of law raised in ground 1(b) been the only ground raised then the Act would have required the matter to be dealt with by the Appeal Tribunal as an appeal. The Appeal Tribunal could, if necessary, have returned the matter to the Tribunal for reconsideration in light of its findings.
In my view, this is an appropriate case in which leave to appeal should be granted so that the Appeal Tribunal can deal with all of the grounds raised. It will not always be the case that this a convenient course to follow. It is, however, in this case. In other cases, it will be convenient to deal only with the appeal on a question of law if the Appeal Tribunal is of the view that leave to appeal on the other grounds should be refused.
Grounds 1(a), (b) and (c)
The appellant submits that, on the evidence, there was prima facie a breach of AR 140B as the bandages were not stitched in accordance with the National Gear Register, but that mere failure to comply with AR 140B cannot of itself constitute a breach of AR 140A. In order for AR 140A to have been breached there must have been carelessness or negligence. Those contentions must be accepted.
Central to the appellant’s submission that the Tribunal erred in finding that AR 140A had been breached was its alleged misstatement and misapplication of the appropriate test. The appellant submits the Tribunal identified the correct test as that established by Chesterman J in Pollard v Trude.[12] However, the appellant contends that in attempting to apply the proper test as identified, the Tribunal, at [41], misstated it. The test, as stated by the Tribunal was:
…what would the reasonable person in the particular situation associated with the fitting of the gear on the day have done?
[12][2008] QSC 119.
The test stated in Pollard v Trude was:
…what would the reasonable man in the particular situation have foreseen and done.
The appellant says that no regard was had to the element of foreseeability which is required by the test. He complains that there is an unexplained ‘leap of logic’ from the facts that a bandage had come loose to the conclusion that this was because of a failure to stitch it, thus establishing the carelessness or negligence necessary for a finding of contravention of AR 140A.
On the appellant’s argument, Racing Queensland was required to demonstrate that a reasonable man in Mr Seymour’s position would have foreseen that a consequence of the way he fitted the bandage was that it would be likely to cause the horse to fall. He says this was not foreseeable. He points to the fact that three of the bandages fitted in that way did not come loose (even if it be accepted that one did). He also points to the fact that this had always been his practice, and that of others, and that there was no suggestion of cases of other falls from a like cause. He says that it was in fact an unlikely consequence.
Racing Queensland contends that Mr Seymour’s submission that foreseeability was not considered by the Tribunal cannot be sustained because of what was said at [44] and [48] of its decision.
After considering what the National Gear Register required for the securing of each of, respectively, standard bandages, self adhesive bandages and adhesive bandages, the Tribunal, at [44], observed:
It is obvious that a great deal of thought has gone into the requirement of stitching. It is obvious that that requirement is there to ensure the bandages do not unravel.
It was in the context of the observation as to it being obvious that the requirement for stitching was to ensure that the bandages did not unravel that the Tribunal found at [48]:
In light of the above I am therefore satisfied that Mr Seymour’s failure to stitch the Velcro bandages as required by the Gear Register on the day in question allowed one of the bandages on Under Construction to come loose, and that omission constituted carelessness and negligence in fitting gear in breach of Rule 140A of the Rules of Racing.
In my view, the Tribunal did not perform the leap of logic suggested by the appellant. The conclusion that the failure to stitch allowed the bandage to come loose was open and reached after a consideration of the relevant facts as found. The Tribunal had accepted the evidence of Ms Parry and Ms Webber each of whom had given evidence that a bandage on the horse had come loose. Ms Webber had initially thought that it was a girth cover that was flapping under the horse, but later realised that it was a bandage around its fetlock. Those factual findings are not challenged.
The fact that other unstitched bandages had not unravelled, on this or other occasions, does not lead to the conclusion that the fact that this might occur was unforeseeable.
Ground 2
The Tribunal concluded that it was most probably the case that the loose bandage caused the horse to fall.[13] The appellant challenges that conclusion on the basis that there was insufficient evidence to support it.
[13]Seymour supra at [49].
In considering the issues in the case the Tribunal was mindful of the standard of proof required to be met given the seriousness of the charges and the consequences for Mr Seymour as a professional trainer.[14]
[14]Seymour supra at [45] – [46].
The Tribunal resolved the issue of causation of the fall in the following way.
It started from an appreciation that there was no direct evidence that the loose bandage was the cause. Therefore, the Tribunal, properly, approached the issue on the basis of whether that cause was proven inferentially by other facts found.
The Tribunal commenced with its finding that a bandage was loose and flapping under the horse immediately before the fall. As noted above, the Tribunal had accepted Ms Perry’s and Ms Webber’s evidence that a bandage had come loose.
It then excluded interference and the condition of the track as possible causes of the fall. It had earlier set out in comprehensive detail the evidence in respect of each of those issues.[15]
[15]Seymour supra at [21] – [29].
The exclusion of those possible causes on the analysis of that evidence was unremarkable.
The Tribunal accepted the evidence of the jockey of the other horse that was participating in the track work gallop that to his knowledge his horse did not interfere with Under Construction.
The Tribunal also found that there was nothing wrong with the track. Mr Brummell, a jockey who had ridden in a number of races on the program earlier in the day, had said that there was a heavy patch on the track just after an area called the ‘crossing’. He thought this heavy patch was implicated in the fall. He had told Stewards that most of the other riders on the day had also noted this heavy patch and had stayed away from it.
In rejecting the condition of the track as a reason for the fall the Tribunal considered Mr Brummell’s evidence against that of others. Some of that other evidence suggested that there was a heavy or soft patch, but that it was nothing to worry about and that the track was otherwise in good condition.
Next, the Tribunal referred to the fact that approximately 400mm was torn from the Velcro tie on the bandage. The Tribunal referred to the jagged nature of the break in the tie indicating that it had been torn off.
The Tribunal then dealt with evidence of Mr Seymour. It said, at [50]:
Mr Seymour suggested it had been torn off after Under Construction ran from the track but there is no direct evidence to support that assertion.
The appellant in his submissions says:
The Tribunal rejected the Applicant’s suggestion that this had occurred after the horse left the track because there was no direct evidence of that fact (nor was there direct evidence of how the fall occurred).
The Tribunal reversed the onus of proof. It was not for the Appellant/Applicant to produce direct evidence of his proposition – it was for the Stewards to establish that it didn’t occur in that way. Surprisingly, the Tribunal, which acted on no other evidence of Ms Steadman, acting on her opinion that the end of the bandage looked as if was stood on. That of course said nothing about when or where the bandage was stood on. It is to be noted that it was not suggested that a missing piece of bandage was found on the track which one would have expected had the damage to the bandage occurred there. (original emphasis)
In order to consider the finding which the Tribunal made, and to assess the criticism made of it by the appellant, it is necessary to understand precisely what “it” was that Mr Seymour had suggested was torn off to which the Tribunal Member was referring at [50] of the reasons. It may be thought in light of the criticism made in the submissions set out above that Mr Seymour was referring only to the torn section of the Velcro strap. But he was not. His evidence relevant to the issue was set out by the Tribunal, at [12], as follows:
He doesn’t accept that one of the bandages came loose during the track gallop and unravelled from the leg of Under Construction. He said when he caught the horse one of the bandages was dragging but that was because he may have got caught on a fence after running from the track and through a number of stalls after the fall. He didn’t see any loose bandage during the gallop.
Later, at [20], the Tribunal said:
Mr Seymour’s evidence is that when Under Construction went past him to the best of his knowledge the bandages were all on. Under Construction was on the inside track and Slippery Position outside him. When Mr Seymour caught the horse after the fall one of the bandages wasn’t entirely off but it had a length dragging. He said the horse “had been down there and got caught in a fence and come back” referring to an area amongst the stables.
No other evidence of Mr Seymour is recorded which refers to the tear to the Velcro strap. Therefore, it is tolerably clear that at [50] the Tribunal was referring to Mr Seymour’s evidence that the bandage only unravelled after the horse ran from the track and got caught up. It was that evidence which the Tribunal rejected. But it did not do so simply because there was no direct evidence of it. It rejected it because it was contrary to other evidence which was accepted that the bandage had unravelled during the gallop and prior to the fall. Immediately following the reference to Mr Seymour’s evidence the Tribunal said:
Ms Webber’s evidence, which I accept, is that she saw a loose bandage around the fetlock of Under Construction that was flicking around after the fall, and I take it that means before the animal left the track. Mr Gabriel said he saw about a metre and a half of loose bandage, probably on the near side foreleg of the horse when, it got up from the fall.[16]
[16]Seymour supra at [50].
There was no reversal of the onus of proof. The Tribunal was not requiring Mr Seymour to produce direct evidence of his proposition. It rejected the proposition based upon other evidence to the contrary.
The Tribunal resolved the issue in a conventional manner. No error in the Tribunal’s reasoning on the issue of causation has been demonstrated.
Ground 3
Mr Seymour contends that the six month suspension imposed by the Stewards and confirmed by the Tribunal was manifestly excessive.
In his submission, Mr Seymour says that the factors referred to in [54] and [55] of the reasons militate strongly in favour of a substantially lesser penalty than that which was imposed. The submission is not further developed.
As submitted by Racing Queensland, those passages of the reasons demonstrate that those matters were taken into account in the Tribunal’s consideration of an appropriate penalty. The learned Members were alert to the need to balance between the severity of the offence, the need for deterrence and any mitigating factors.[17] The Members noted the catastrophic result from this event. They noted that there were rules in place to prevent situations such as this. They noted that Mr Seymour was not aware of the rule in the Register of Nationally Approved Gear. Obviously, the learned Members thought that a deterrent was necessary. The learned Members took Mr Seymour’s financial position and previous record into account.
[17]Seymour supra at [53].
The appellant has not demonstrated any appealable error in the exercise of the sentencing discretion by the Tribunal as explained in House v The King.[18]
[18](1936) 55 CLR 499 at 505.
Disposition
The orders I would make are:
1. Leave to appeal is granted.
2. Appeal dismissed.
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