Taylor v Racing Queensland Limited - [2011] QCAT 576

CITATION:

Taylor and Anor v Racing Queensland Limited [2011] QCAT 576

PARTIES:	Mr Darren Taylor Mrs Kaye Taylor
v
Racing Queensland Limited

APPLICATION NUMBER:

OCR137-11 / OCR138-11

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

6 September 2011

HEARD AT:

Brisbane

DECISION OF:

Peta Stilgoe, Presiding Member
James Allen, Member

DELIVERED ON:

13 September 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Application to review dismissed.

2. The parties shall file and give to each other their written submissions on penalty within 14 days of the date of the decision.

3. The decision on penalty shall be determined on the papers by written submission, without an oral hearing.

CATCHWORDS:

RACING – GREYHOUNDS – where sample lost in laboratory – where remaining sample split and retested – where positive result – whether substantial compliance – whether s 352A Racing Act2002 relevant

Racing Act 2002, s 352A

Whitaker v Harness Racing Queensland [2009] QRAT 014
Queensland Harness Racing Limited v Whitaker [2009] DCA No. 2220 of 2009
Whitaker v Harness Racing Queensland [2010] QCAT 693
Pomfrett v Racing Queensland Limited [2011] QCAT 137
Wakefield v Queensland Racing [2008] QRAT 014

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr S Neaves, barrister
RESPONDENT:	Mr A J Orchard, in house legal officer of Racing Queensland Limited

REASONS FOR DECISION

Mr Taylor, and his mother, Mrs Taylor, own and train greyhounds. They both had winners in the Rockhampton race meeting on 26 February 2011. The urine samples for both dogs were sent to Brisbane for testing. In both cases, Sample A tested positive to boldenone and its metabolic. Boldenone is a prohibited substance. The laboratory could not issue certificates because, when it attempted to cross reference the results to the samples, the samples could not be found.
The laboratory decided to split Sample B, test one part as a new sample A and use the balance as Sample B. The new Sample A tested positive to boldenone and its metabolic in each case. New Sample B for Mrs Taylor’s dog tested positive to boldenone and its metabolic. New Sample B for Mr Taylor’s dog tested positive for the metabolic only. The laboratory issued certificates showing a positive result.
At a hearing on 1 July 2011, the Stewards found both owners guilty of a breach of Greyhounds Australasia Rule 83(2)(a)(d):
The owner, trainer or person in charge of a greyhound nominated to compete in an event shall present the greyhound free of prohibited substance.
Mr Taylor was disqualified for 4 months. Mrs Taylor was disqualified for 3 months. They have applied to the tribunal to review those decisions.
There is no dispute that the samples were obtained from the dogs in compliance with The Collection Procedures[1]. There is also no dispute that the samples tested positive to boldenone. The Taylors say there are three factors which, when combined, are grounds for setting aside the Stewards’ decision:

a)The loss of Sample A.
b)The decision to split Sample B.
c)The independence of Ms Perrett, who witnessed the split.
[1]Procedures…

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.

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Details

Case: [2011] QCAT 576
Decision Date: 13 September 2011

CaseChat Overview and Summary

The case of Taylor v Racing Queensland Limited concerned a dispute over the testing of a greyhound for drug use. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT). The respondent, Racing Queensland Limited, sought to disqualify the greyhound and its trainer from racing for a period of time due to a positive drug test result. The applicant, Taylor, argued that the test result should be disregarded due to the alleged loss of a sample in the laboratory and subsequent retesting of a split sample.

The primary legal issues before the tribunal were whether there was substantial compliance with the procedures outlined in section 352A of the Racing Act 2002 and whether this section applied to the circumstances of the case. The applicant argued that the loss of the original sample and the subsequent retesting of a split sample amounted to non-compliance with the statutory procedures, rendering the test result invalid. The respondent contended that the procedures followed were substantially compliant and that section 352A did apply.

In determining the matter, the tribunal found that the procedures followed were substantially compliant with the requirements of section 352A. The tribunal accepted that while the original sample was lost, a split sample was retested and produced a positive result. The tribunal held that the act of splitting the sample and retesting it was in substantial compliance with the statutory requirements. Furthermore, the tribunal found that section 352A was applicable to the circumstances of the case, as the positive test result was obtained through a procedure that adhered to the essence of the statutory requirements.

The tribunal dismissed the application to review the disqualification of the greyhound and its trainer. The tribunal ordered that the parties file and exchange written submissions on the penalty within 14 days of the decision. The decision on the penalty was to be determined by written submission without an oral hearing.

Orders

Orders of the court

1. Application to review dismissed.

2. The parties shall file and give to each other their written submissions on penalty within 14 days of the date of the decision.

3. The decision on penalty shall be determined on the papers by written submission, without an oral hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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