Smith v Racing Queensland Limited - [2013] QCAT 23

CITATION:		Smith v Racing Queensland Limited [2013] QCAT 23
PARTIES:	Aileen Smith
v
Racing Queensland Limited

APPLICATION NUMBER:

OCR238-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

6 December 2012

HEARD AT:

Brisbane

DECISION OF:

Jim Allen, Member
John Bertelsen, Adjudicator

DELIVERED ON:

16 January 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of Racing Queensland Limited dated 18 June 2012 in regard to penalty is set aside and in lieu Mrs Smith is fined $4,000.

CATCHWORDS:

Racing – application for review of penalty – where applicant pleaded guilty to presenting a horse in a harness race with a prohibited substance – caffeine

Australian Harness Racing Rules, rules 190, 191
Queensland Civil and Administrative Tribunal Act 2009, ss 19, 20, 24
Racing Act 2002, ss 143, 352A

Wallace v Queensland Racing [2007] QDC 168

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Ms Smith appeared in person
RESPONDENT:	Racing Queensland Limited was represented by Mr D Farquharson, Chief Steward of Harness Racing

REASONS FOR DECISION

Ms Smith is the trainer of Justaregularguy, which competed in and won race 6 at the Redcliffe Harness Racing Club on 2 May 2012. The horse was swabbed post-race and when part of the sample was analysed by the Racing Science Centre it was found to contain caffeine. The initial result was confirmed by analysis of another part of the sample by Racing Analytical Services Ltd.
Mrs Smith was charged at a Stewards Panel held on 18 June 2012 under rule 190(1) of the Australian Harness Racing Rules which states:
“A horse shall be presented to race free of prohibited substances”.
The tribunal notes that the offence in this case is created under rule 190(2) which states:
“If a horse is presented for a race otherwise than in accordance with subrule (1) the trainer is guilty of an offence.”
Ms Smith pleaded guilty to the charge and received a penalty of $5,000. She is seeking a review of the penalty on the ground that it was excessive.
The Tribunal’s role is to hear and decide the review by way of a fresh hearing on the merits[1] and to produce the correct and preferable decision[2]. The Tribunal performs the functions conferred on it by its Act and the enabling Act[3] and has all the functions of the decision-maker for the original decision[4]. The Tribunal may confirm or amend the decision, set aside the decision and substitute a new decision or set aside the decision and return the matter for reconsideration to the decision-maker[5].
[1]Section 20(2) of the Queensland Civil and Administrative Appeals Tribunal Act 2009.
[2]Section 20(1) of the Queensland Civil and Administrative Appeals Tribunal Act 2009.
[3]Racing Act 2002 and the Australian Harness Racing Rules.
[4]Section 19 of the Queensland Civil and Administrative Appeals Tribunal Act 2009.
[5]Section 24 of the Queensland Civil and Administrative Appeals Tribunal Act 2009.
The transcript of the Stewards Panel[6] discloses that following the initial swab result Mr Farquharson attended at Mrs Smith’s…

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 Smith v Racing Queensland Limited

Details

AGLC: Smith v Racing Queensland Limited [2013] QCAT 23
Case: [2013] QCAT 23
Decision Date

CaseChat Overview and Summary

Aileen Smith, an experienced horse trainer, sought a review of a penalty imposed on her by Racing Queensland Limited following the detection of caffeine in her horse, Justaregularguy, after a race. The penalty was set aside and replaced with a $4,000 fine. The Tribunal had to determine whether the penalty imposed by Racing Queensland was excessive, considering the circumstances of the offence. The Tribunal reviewed the evidence presented, including the analysis of the horse's sample, the administration of Hemo Cease, and Mrs Smith's efforts to ensure that the product did not contain prohibited substances. The Tribunal found that Mrs Smith had acted in good faith and had taken reasonable steps to avoid a breach of the Rules.

The Tribunal considered the principles of strict liability, deterrence, and the integrity of the racing industry when formulating an appropriate penalty. While the offence is one of strict liability, and Mrs Smith is not required to have knowingly administered the prohibited substance, the Tribunal recognised the need to maintain the integrity of the racing industry and deter future breaches. The Tribunal also took into account Mrs Smith's good record as a trainer and the fact that the product in question was freely available for sale in Queensland. The Tribunal found that the most likely source of the caffeine was the Hemo Cease product and accepted Mrs Smith's submission that she had done all she could to avoid a breach of the Rule.

In conclusion, the Tribunal set aside the decision of Racing Queensland and in lieu, imposed a $4,000 fine on Mrs Smith. The Tribunal found that Mrs Smith had acted in good faith and had taken reasonable steps to avoid a breach of the Rule, and considered the fact that Hemo Cease was freely available for sale in Queensland. The Tribunal recognised the need to maintain the integrity of the racing industry and deter future breaches, but also took into account Mrs Smith's good record as a trainer. The Tribunal considered that the appropriate penalty in this case was a fine of $4,000, which was less severe than the disqualification or suspension penalties imposed in similar cases.

Orders