Smith v Queensland All Codes Racing Industry Board

CITATION:

Smith v Queensland All Codes Racing Industry Board [2016] QCAT 458

PARTIES:

Don Smith
(Applicant)

v

Queensland All Codes Racing Industry Board (Respondent)

APPLICATION NUMBER:

OCR046-16

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

22 November 2016

HEARD AT:

Brisbane

DECISION OF:

Member Deane

DELIVERED ON:

1 December 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1.    The decision of the Queensland Racing Disciplinary Board dated 23 March 2016 affirming the original decision is set aside.

2.    The Tribunal substitutes its own decision that Don Smith has contravened Australian Harness Racing Rule 193(3).

3.    Don Smith must file in the Tribunal one (1) copy and provide to Queensland All Codes Racing Industry Board one (1) copy of any submissions he wishes to rely upon in respect of penalty by 4.00pm on 12 December 2016.

4.    Queensland All Codes Racing Industry Board must file in the Tribunal one (1) copy and provide to Don Smith one (1) copy of any submissions it wishes to rely upon in respect of penalty by 4.00pm on 19 December 2016.

5.    The issue as to penalty will be determined on the papers unless a party requests an oral hearing not before 4.00pm on 19 December 2016.

CATCHWORDS:

ADMINISTRATIVE LAW – DISCIPLINARY PROCEEDINGS – HARNESS RACING – whether trainer contravened Australian Harness Racing Rule 193(3) by administering ‘medication’ on race day – where TCO2 measurements elevated but not so high as to be a prohibited substance - whether horse received an alkalising agent on race day – where significant conflicting expert evidence - where trainer admitted administering a supplement on race day prior to the race

Racing Act 2002 (Qld), s 152 A
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
Briginshaw v Briginshaw (1938) 60 CLR 336
Lawlor v Racing Queensland [2012] QCAT 255

APPEARANCES:

APPLICANT:

Don Smith

RESPONDENT:

Queensland All Codes Racing Industry Board

REPRESENTATIVES:

APPLICANT:

represented by Mr S. Neaves of Counsel

RESPONDENT:

represented by Mr A. James instructed by Fowler Lawyers

REASONS FOR DECISION

1. Mr Smith was the trainer of the standard bred, ‘A Good Chance’, on 16 May 2015 when it competed at Albion Park and finished third.  A pre-race blood sample was taken and analysed.  The sample showed total plasma carbon dioxide (TCO2) concentration of 36.0 mmol/L and the reserve sample showed 35.5 mmol/L.  An elevated level of CO2 may enhance the racing performance of a horse by delaying the onset of fatigue and therefore improve its endurance.  Excessive levels may harm the horse’s health.

2. The Stewards conducted an inquiry at which they:

   a)charged Mr Smith with a breach of rule 193(3) of the Australian Harness Racing (AHR) Rules contending that he administered or allowed or caused to be administered medication, meaning a treatment with drugs or any other substances, on race day;

   b)found Mr Smith had breached AHR Rule 193(3) on the evidence before them despite Mr Smith ‘pleading not guilty’