Tripp v Queensland Harness Racing Board

[2004] QDC 563

[2004] QDC 563

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD3963 of 2004

MARK ANTHONY TRIPP	Applicant
and
QUEENSLAND HARNESS RACING BOARD	Respondent

BRISBANE

..DATE 23/11/2004

ORDER

CATCHWORDS: Appeal to District Court from Racing Appeals Tribunal under s 193 of the Racing Act 2002 - would-be appellant ignorant of his right to appeal and of 28 day time limit in UCPR r 748 - seeks extension of time - respondent argues appeal doomed to fail as there is no "question of law" (required by s 193) in the rejection of the initial appeal against conviction for not allowing a horse to run on its merits, or in the decision on penalty - extension of time

refused - lay advocate who also filed documents in his own
name ordered to pay costs

HIS HONOUR: This is an application brought by Mr Bolton acting under a general power of attorney dated 2nd November 2004 in the name of Mark Anthony Tripp who wishes to appeal out of time to the District Court under section 193 of the Racing Act 2002 against the rejection by the Racing Appeals Tribunal of an appeal brought to it from a decision of stewards. There were two such appeals determined by their being dismissed on the 1st of September 2004. The respondent, as here, was the Queensland Harness Racing Board. The Tribunal is not a party.

The time limit for such appeals is not found in the Racing Act and thus one looks to rule 748 of the UCPR which indicates that it is 28 days after the date of decision appealed from. It is open to the Court of Appeal to order otherwise. The effect of rule 785 is that references to the Court of Appeal may be read as if they referred to this Court. To the extent that any explanation is given for Mr Tripp's lateness in appealing to the District Court and his requiring further time to appeal under rule 748, it is that the Racing Appeals Tribunal "did not notify me either verbally or in the decision that I could appeal the decision".

Mr Duffy, appearing for the respondent, submits that there is no point in the Court's allowing any extension of time because the appeal under section 193 is strictly limited to one on a question of law. There is no interest expressed in an appeal against the Tribunal's dismissing an appeal in respect of a six month disqualification for a breach of rule 190 which requires a horse to be presented for a race free of prohibited substances. An offence in that regard was alleged to have happened on the 7th of May 2004.

The decision which Mr Tripp does desire to appeal related to his conviction for a breach of rule 147 which provides:

"147(1) A driver shall race a horse on its merits.

(2)Action or non action by a driver during the course of a race which prevents or impedes the horse driven by that driver from racing on its merits shall be sufficient to establish non compliance with sub rule (1).

(3)Sub rule (2) does not preclude non compliance being established by other means.

(4)A driver who fails to comply with sub rule (1) is guilty of an offence."

The relevant race happened on the 10th of July 2004.  The appeal to the Tribunal in respect of it related to conviction, whereas the other appeal related to penalty only.  I am unable to detect any arguable error of law on the part of the Tribunal.

Mr Bolton, who was given leave by the Court to make submissions today, suggested that there was no evidence whatever available to the Tribunal of intent by Mr Tripp to act contrary to rule 147.  There is no evidence of anything unusual in betting on the race, for example, still less any

evidence of any improper arrangement being made.  What the Tribunal relied on was Mr Tripp's behaviour in the race as recorded on a videotape of it (in which, incidentally, the Tribunal did not see everything which the stewards claim to have observed) and some other evidence of the stewards.

The Tribunal were aware that a charge under rule 147 was a rarity and I think proceeded carefully on that account.  There is certainly no indication of error of law which there would be where a conviction has no evidence to support it.  That is not the present situation.  The question for the Tribunal was not what they made of the evidence, but rather whether the Tribunal considered it open to the stewards to reach the decision they did on the available evidence.  Given that there was evidence to justify the outcome, there is no question of law which I can detect here.

The same applies in relation to penalty.  One could encounter an error of law in respect of penalty where a penalty of a nature or of a level not permitted by relevant rules was imposed, for example.  There is no bar of that kind suggested here nor any reason for this Court to doubt the Tribunal's statement that the 12 months' disqualification imposed for this offence was "not excessive". 

One of Mr Bolton's points concerned references made by the stewards in arriving at the penalty they did to the Penalties and Sentences Act. It was suggested that doing so represented an error of law. The Penalties and Sentences Act contains expressions of many common principles invoked when someone has to be punished. Unusual as it might be to have the Act referred to in the present context, I am not persuaded that the Act was applied or sought to be applied in any way.

I agree with Mr Duffy's submission that the appeal appears to have such limited prospects of success if it ever eventuates that there is really no point in the Court extending time under rule 478, so the application will be dismissed.

...

HIS HONOUR:  I am still at loss to see how the penalties which Mr Tripp has suffered aggregate to 18 months, but whether or not they do (as if they were cumulative), I am fully aware that exclusion of Mr Tripp for any substantial period from his activity in harness racing is a severe penalty.  There is no reason for the Court not to respect the judgments made about its being a condign penalty by those with expertise in the area.

I think that costs ought to be awarded and against both Mr Tripp and Mr Bolton.  There really is no reason why Mr Tripp could not have acted personally, even if Mr Bolton had told him what to do at every step.  Instead of that, Mr Bolton has gone further, doing work of the kind which a solicitor does.  By that I am not intending to suggest at all that he is at risk of practising as a solicitor.  He has not held himself out as doing that in any way.  Nonetheless, he has involved himself in proceedings which, if I am right, are misconceived and has done so notwithstanding being placed on notice by the lawyer of the Board of the peril that that might involve in respect of liability to costs.

I do not think the costs ought to include any of the appearance before Senior Judge Trafford-Walker on the 17th of November when, for reasons that are not entirely clear, his Honour did not deal with the matter.  The Board was claiming shortness of notice, but it appears that the shortness of notice was not the fault of Mr Tripp or Mr Bolton.  It had something to do with the Board's failure to collect registered mail that was sent to it. 

So the application is dismissed and the Court orders Mr Tripp and Mr Bolton to pay the respondent's costs of the application but excluding costs of the appearance on 17th of November 2004.

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