Vains v Racing Queensland Limited
[2010] QCAT 669
•21 December 2010
| CITATION: | Vains v Racing Queensland Limited [2010] QCAT 669 | |
| PARTIES: | Mr Cyril Alfred Vains | |
| v | ||
| Racing Queensland Limited | ||
| APPLICATION NUMBER: | OCR224-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 9 December 2010 |
| HEARD AT: | Townsville |
| DECISION OF: | Peta Stilgoe (presiding member), Joanne Browne |
| DELIVERED ON: | 21 December 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
| CATCHWORDS : | JURISDICTION - where applicant president of racing club – where incident occurred in car park adjacent to course – whether applicant bound by the Australian Rules of Racing AUSTRALIAN RULES OF RACING – where patron exhibiting election material on course – where applicant instructed removal of patron – where applicant followed patron into car park – where physical altercation took place in car park between applicant and patron – whether applicant instigated physical altercation |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr J Murdoch QC instructed by Connolly Suthers |
| RESPONDENT: | Ms V Keegan instructed by Patrick Murphy |
REASONS FOR DECISION
Mr Vains is the president of the Bowen Turf Club (“BTC”), a role he takes very seriously. At a race meeting at Bowen on 14 August 2010, Mr Vains noticed that the local Labour Party candidate, Mr Brunker, had placed electioneering placards on club grounds. Mr Vains wanted the placards removed. The process of their removal, unfortunately, escalated to a physical confrontation between Mr Vains and Mr Brunker in the car park adjacent to the grounds. A stewards’ inquiry found that Mr Vains was in breach of Australian Rules of Racing (“the Rules”) AR.175A in that:
“…as President of the BTC (he) conducted himself in a manner prejudicial to the image of racing by instigating a physical altercation in that he struck Mr Brunker a blow to his face.”
Mr Vains has applied to the tribunal for a review of that decision. His primary argument is that the stewards have no jurisdiction to impose a decision on him because:
- He is not a licensee, nor a “participant in racing”.
- AR.2 does not apply to him.
- AR.175A does not extend to an incident that occurs off course where the incident does not involve a licensee
Mr Vains further contends that, if the stewards did have jurisdiction, the evidence does not support the finding that he instigated the physical altercation in the manner described.
Is Mr Vains bound by the Rules?
AR.1 defines “participant in racing” to include:
a.a trainer;
b.any person employed by a trainer in connection with the training of, or care of horses;
c.a nominator;
d.a rider;
e.a rider’s agent;
f.any person who provides a service or services connected with the keeping, training or racing of a horse.
Mr Vains is none of these.
Schedule 3 of the Racing Act 2002 defines “participant” as:
a person involved with a code of racing, other than—
(a) a club; or
(b) a person who participates merely by doing either or both of the following—(i) attending a race meeting;
(ii) placing a bet with a racing bookmaker at a race meeting.Mr Vains says that this definition does not enlarge the scope of people who may be bound by the Rules.
AR.2 provides that:
any person who takes part in any matter coming within these Rules thereby agrees with the Australian Racing Board and each and every Principal Racing Authority to be bound by them.
Mr Vains says that “takes part in” must be read with the definition of “participant in racing” and that nothing in the Rules manifests an intention to include the president of a race club.
[10] Mr Vains admits that, as president of the BTC, he signed a declaration in these terms:
We, the undersigned, being Secretary/CEO and President of the Club, declare that the information contained in this form is true an correct and we are aware of the consequences of giving false information or failing to declare all relevant information. If the Club’s application for/renewal of registration with Racing Queensland Limited is approved, then we agree to be bound by, and comply with, the policies, directions and Rules of Racing Queensland Limited, as amended from time to time.
[11] He argues, however, that this does not mean he is bound by the Rules since the application is that of the club, not him personally. He says that the Racing Act specifically contemplates disciplinary action against a club but is silent as to any disciplinary action against an office bearer.
[12] Racing Queensland Limited (“Racing Queensland”) says that Mr Vains is bound by the Rules because:
- AR.7 gives it power to penalise:
“any licensed person or official whose conduct …in the performance of his duties has led, or could have led, to a breach of the Rules”.
- “Official” includes:
a Committeeman ….engaged or appointed by Queensland Racing or an association for the purpose of conducting a race meeting, its tracks…its business affairs and all matters incidental thereto.”
- Mr Vains, as president of the BTC, is an official as defined.
[13] If Mr Vains had been involved in this incident simply as a private citizen, without purporting to exercise any of the powers of the President of the BTC then the tribunal agrees that he would not be bound by the Rules. However the tribunal is of the view that Mr Vains’ interaction with Mr Brunker was in the purported exercise of his obligations as president of the BTC. Mr Vains:
- Determined, in his role as president, that Mr Brunker should remove his signs.
- Had the authority to, and did, direct the actions of security in removing Mr Brunker from the course.
- Admitted that, in his position as president, some of his actions that day were inappropriate[1].
- Sent his statutory declaration to the Australian Labour Party noting his address as “care of” the BTC.
[1] Transcript pages 22, 23
[14] As Queensland Racing has pointed out, a party can bring himself within the purview of the Rules by his own conduct.[2] We are therefore satisfied that Mr Vains was acting as an official, within the meaning of the Rules, was taking part in a matter coming within the Rules[3] and is bound by the Rules.
Does AR.175A extend to an incident that occurs off course where the incident does not involve a licensee?
[2] Stephens v Naylor (1937) 37 SR (NSW) 127
[3] AR.2
[15] It is common ground that the incident in question did not take place on the racecourse. Mr Vains says, and the tribunal accepts, that the words “or elsewhere” in AR.175A does not bring in the world at large. However, it is also clear that the operation of the Rule is not limited to on-course activities. There must be, however, a connection between the conduct and the racing industry.
[16] Racing Queensland says that the connection is established in this way:
- The conduct occurred in the course of Mr Vains exercising his authority as Chairman of the BTC;
- The incident occurred in a car park owned by the BTC adjacent to the course on a race day in full view of race patrons;
- The conduct was widely reported in the media;
- The nature of the conduct, its location and the time of day on which it occurred, had a sufficient connection with the industry to be capable of bringing the industry into disrepute.
[17] The fact that the incident was reported in the media demonstrates that there was public interest and that the incident was capable of bringing the industry into disrepute but it does not, of itself, connect the incident with the industry.
[18] We have already found that Mr Vains was acting in his capacity as a BTC official. The car park is owned by the BTC and is adjacent to the course. Mr Vains provided the tribunal with photographs of the area in which the incident occurred. It is somewhat remote from the betting ring and public facilities but, for much of the area, only a chain link fence separating it from the course facilities. It is not the case, therefore, that the incident occurred in a remote location that had no connection with the race meeting.
[19] The incident occurred during the race meeting.
[20] We are satisfied that the combination of the location, the time of the incident and Mr Vains’ purporting to act in an official capacity means there was a sufficient connection between the incident and the industry to enliven the stewards’ jurisdiction to consider whether Mr Vains breached AR.175A.
The evidence
[21] Mr Vains has provided evidence to the tribunal by way of a statutory declaration sworn 15 August 2010 (the day after the incident) and an affidavit sworn 3 November 2010. Mr Brunker gave a statement to the police on 23 August 2010, the day before the stewards’ inquiry. All other evidence is contained in the transcript of the stewards’ inquiry.
[22] Counsel for Mr Vains cautioned the tribunal against reliance on the unsworn testimony of witnesses at the stewards’ inquiry. He says that because: representation was not permitted at the inquiry; the inquiry was conducted informally and more as a conversation; the challenging of witness testimony was conducted in an ad hoc way and was not subject to the “normal” cross examination process; we should prefer the sworn testimony of Mr Vains.
[23] Stewards’ inquiries are routinely conducted in a relatively informal manner and without the witnesses being sworn. It would be a radical departure from current practice to allow legal representation and “normal” cross examination in a process which, clearly, is not a Court process, nor even a tribunal hearing.
[24] The Racing Act imposes very strict time frames for the review of stewards’ decisions.[4] Queensland Racing has previously submitted to this tribunal[5] that its disciplinary system depends on certainty and prompt resolution of disciplinary matters so that all parties are aware of standards expected. That regime cannot accommodate the procedural requirements that Counsel for Mr Vains suggests is necessary to enable the tribunal to rely on unsworn evidence.
[4] See, for example, sections 152(1)(b) and 153(1).
[5] Litzow v Racing Queensland Pty Ltd [2010] QCAT 414
[25] This tribunal is able to act on unsworn evidence.[6] Briginshaw makes it clear that in applying the civil standard of proof on the balance of probabilities the issue that must be proved to the reasonable satisfaction of the tribunal should not be “produced by the inexact proofs, indefinite testimony, or indirect inferences”.[7] Furthermore, it has been held that the tribunal is not required to consider whether evidence was capable of satisfying the criminal standard of proof but “whether it is open to the tribunal on the probative evidence to not be satisfied of the particular alleged” applying the civil standard of proof .[8] that
[6] See s95(5) of the Queensland Civil and Administrative Tribunal Act 2009
[7] Briginshaw v Briginshaw & Anor (1938) 60 CLR 336 at 368.
[8]Crime and Misconduct Commission v Swindells & Ors [2009] QSC 409 at [66] per Appelgarth J.
[26] The tribunal was taken to a great deal of evidence to demonstrate the inherent unreliability of witnesses’ statements. It is true that there are discrepancies in the evidence but this is to be expected. The critical question is whether the evidence demonstrates, to the required standard of proof that, Cyril Vains, as president of the Bowen Turf Club, conducted himself in a manner prejudicial to the image of racing by “instigating a physical altercation in that (he) struck Michael Brunker with a blow to the face.” As Counsel for Mr Vains has pointed out, the stewards’ inquiry was not concerned with the behaviour that led up to the incident in question.[9] Therefore, the tribunal will, primarily, restrict itself to a consideration of the evidence concerning that point.
[9] Transcript page 146 at line 26
[27] In his statutory declaration of 15 August 2010, Mr Vains denies that he “king hit” or punched Mr Brunker. In his affidavit sworn 3 November 2010, Mr Vains says[10]:
“I then realised that Mr Brunker was not going to calm down. I then noticed that Mr Brunker’s left hand had clenched into a fist. I recall feeling that Mr Brunker was going to hit me with his left hand, and it was at this point that I lunged at Mr Brunker’s left had (sic).
The next thing that happened was that Mr Brunker punched me in the face with his right hand.”
[10] At paragraph 91
[28] In his evidence before the stewards’ inquiry, Mr Vains said this[11]:
Mr Vains: It was at this stage I was about to leave and I was about to tell the security to take him when I saw his left fist – left hand being made into a fist. I did attempt to stop that getting to me.
Mr King: How?
Mr Vains: I don’t know, but I went forward to try and stop it.
….
Mr Vains: Yes, he – no, he was clenching it (his left hand) and I thought that was ready to come to me.
[11] Transcript pages 18 and 19
[29] When asked directly whether he threw any blows at Mr Brunker, Mr Vains said[12]:
Mr Vains: No. I went for his left hand.
Mr King: At what – after you were hit or before you were hit?
Mr Vains: Before I was hit, I think. It is virtually simultaneous.
Mr King: When you went for his left hand, what did you do?...
Mr Vains: I don’t know. I don’t know whether I went to push it away, hit it away, because I was too far away from him to hit him.”
[12] Transcript page 20
[30] Mr Vains specifically denied hitting Mr Brunker and goes further to say that he had not laid a hand on him at any stage.[13] Under cross-examination from Mr King, Mr Vains conceded that he lunged at Mr Brunker but says that he “did not get there”.[14]
[13] Transcript pages 24 and 27
[14] Transcript page 25
[31] Not surprisingly, Mr Brunker has a different view. In his statement to police, he says that he was having a heated conversation with Mr Vains in the car park and then “he smacked me in the nose with a punch”[15]. In his evidence at the stewards’ inquiry, Mr Brunker said[16]:
“I stood there with my hands on my hip …and that’s when – after a minute or two, that’s when he clocked me.
Mr King: He struck you a blow to your face?
Mr Brunker: Yep.
Mr King: And you struck him one blow back?
Mr Brunker: Yeah …”
[15] Transcript paragraph 8
[16] Transcript page 13
[32] If the only evidence of the altercation was from Messrs Vains and Brunker, then the requisite standard of proof would not be met. It is apparent to the tribunal that Mr Brunker has embellished his version of events and Mr Vains has downplayed the incident. However, other witnesses gave evidence at the stewards’ inquiry.
[33] Mr Pozza was Mr Brunker’s campaign director. He told the stewards that he saw Mr Vains punch Mr Brunker and then Mr Brunker defended himself.[17] Mr Pozza asserted that he had a clear view of the altercation. He was cross-examined by Mr Vains[18]. At no time did Mr Vains put to Mr Pozza his version of events: that he saw Mr Brunker clench his fist, thought he was going to punch Mr Vains and took steps to defend himself. Mr Pozza denied Mr Vains’ suggestion that he was not at the scene of the incident or too far away to see what was happening.
[17] Transcript pages 39, 40
[18] Transcript page 40
[34] Mr Taylor was acting Mayor while Mr Brunker was campaigning. He told the stewards that he saw the “clash” between Messrs Vains and Brunker and that he saw Mr Vains throw the first punch.[19] Mr Vains cross examined Mr Taylor. Once again, although he asserted that Mr Taylor’s version of events was wrong, Mr Vains did not put his version of the altercation to Mr Taylor. Mr Vains did put to Mr Taylor his version of events of why security was present at the altercation but, strangely, stopped short of questioning Mr Taylor about the incident.
[19] Transcript pages 60 and 61, 63 and 64, 69
[35] Counsel for Mr Vains says that the evidence of Messrs Pozza and Taylor should not be relied upon because of their relationship with Mr Brunker. The tribunal is not persuaded that the evidence of these gentlemen is skewed because of that relationship. Mr Pozza was quite frank in admitting to the stewards that he simply could not recall in circumstances where some “reconstruction” would have further confirmed Mr Brunker’s assertions. Mr Taylor specifically denied that he was called as a witness for Mr Brunker.[20] The stewards come close to giving Mr Taylor a warning about the need to tell the truth.[21]
[20] Transcript page 51
[21] Transcript page 52
[36] In any event, the version of events described by Messrs Brunker, Pozza and Taylor is, in part, confirmed by an independent witness. Mr Rowley was a security guard employed to work at the races on the day in question. His evidence at the stewards’ inquiry is as follows:[22]
[22] Transcript page 97
“Mr King: And then what happens?
Mr Rowley: Yeah, a hand just lashed out.
Mr King: Whose hand? Mr Vains?
Mr Rowley: Mmm
Mr King: Lashed out where?
Mr Rowley: Upwards, bro, like just towards the face area.
Mr King: Was it a punch?
Mr Rowley: I couldn’t tell you that. I really couldn’t tell you that.
Mr King: But you saw his hand, Mr Vains’ hand, hit Mr Brunker’s face?
Mr Rowley: I didn’t say it hit, I just saw it lash out.”
[37] Mr Rowley confirmed that Mr Vains initiated the physical altercation.[23]
[23] Transcript page 98
[38] Taking into consideration all of the evidence, the tribunal is satisfied to the requisite standard that Mr Vains initiated the altercation in the car park by striking Mr Brunker on the face.
[39] Counsel for Mr Vains referred the tribunal to the decision of Birch v Racing Queensland[24] in support of an argument that Mr Vains’ actions were involuntary or reactive and, therefore, could not constitute an assault on Mr Brunker. The particulars of the charge do not require a finding as to Mr Vains intentions and whether his actions constitute an assault; we are simply required to determine whether Mr Vains struck Mr Brunker on the face. Nor is it necessary to determine the extent of the blow.
[24] [2010] QCAT 521
[40] We find, as a matter of fact, that Mr Vains struck out at, and made contact with, Mr Brunker’s face Brunker in circumstances in which the reputation of the industry could have been brought into disrepute.
Penalty
[41] The stewards’ penalty was to disqualify Mr Vains for three months. Mr Vains pointed out that he tends the Bowen track on a volunteer basis, that no one else is willing or able to do this and, if he was prevented from undertaking this work, the track would suffer. Accordingly, Racing Queensland gave Mr Vains a dispensation pursuant to AR.182(1) for the purpose of track maintenance.
[42] Mr Vains contends for a fine of no more than $500. In support of that submission he says that:
- The incident was preceded by a verbal altercation in which he was provoked;
- He has a long history of contributing to the racing industry;
- While the incident attracted publicity, it is open to speculation as to whether that publicity damaged the reputation of the industry. In support of this contention, Counsel for Mr Vains tendered a copy of the Townsville Bulletin for 8 December 2010 which records the “altercation” between Ian Chappell and Ian Botham. Counsel submitted that he did not consider that the reputation of cricket was damaged by this news item.
- This incident involved unusual circumstances. Mr Vains is a long standing member of the Australian Labour Party. He was a member of the Federal Election Committee created to assist in Mr Brunker’s election campaign. He wanted Mr Brunker to succeed but held a very firm view that the BTC was an a-political organisation that could not permit party political material on the course.
- It was reasonable and appropriate for Mr Vains, as president of the BTC, to get involved in the issue of the election material.
[43] Counsel for Mr Vains also referred the tribunal to Ball v Greyhound Racing Authority (Qld).[25] Mr Ball was fined $500 for using insulting language to the stewards in the kitchen of the stewards’ room. The incident did not involve any physical altercation nor could it be seen by members of the public.
[25] [2006] QRAT 38
[44] Racing Queensland is of the view that a three-month suspension is appropriate. Counsel referred the tribunal to comparable cases of:
- Sawden v Queensland Racing.[26] Mr Sawden was an unlicensed employee of a trainer. He admitted pushing a fellow employee after a verbal altercation. The tribunal reduced Mr Sawden’s penalty from three months to two months disqualification.
- Huxham v Queensland Racing.[27] Mr Huxham made physical contact with a person mounted on another horse while the two were engaged in track work. The tribunal found that Mr Huxham’s actions had workplace health and safety ramifications. He was disqualified for four months.
- Litzow v Queensland Racing[28] In responding to a physical attack, Mr Litzow bit the ear of his attacker so violently that a piece of the ear was detached. The initial penalty was reduced from two years to six months.
[26] [2009] QRAT 020
[27] [2008] QRAT 016
[28] Unreported QCAT OCR191-10
[45] As Counsel for Mr Vains has pointed out, these cases involve a breach of AR.175(q), not AR.175A. AR.175(q) enables the stewards to impose a penalty on any person who, in their opinion is “guilty of any misconduct, improper conduct or unseemly behaviour.” Counsel for Mr Vains argues that a breach of AR.175(q) is more serious and, therefore, requires a more serious penalty. We are not sure that we agree with this proposition. We do think that Mr Vains’ behaviour is less serious than that of either Huxham or Litzow and is more in line with Sawden.
[46] The problem that the tribunal faces is that a disqualification of three months is really an illusory penalty. The parties informed the tribunal that the next race meeting at BTC is 26 March 2011. If the tribunal confirms the disqualification, Mr Vains will not be precluded from attending any race meetings at his home course. Mr Vains will miss a regional committee meeting which will be held some time in January 2011. When put in that context, as against a trainer, driver or jockey who is prevented from earning income over a similar period, the penalty proposed for Mr Vains is insignificant.
[47] The tribunal has no information on the significance of imposing a fine of $500 but it seems unlikely that it will have any real punitive effect on Mr Vains.
[48] The purpose of imposing a penalty is to ensure that the standards of the racing industry are upheld: that necessarily involves a penalty that has a deterrent effect and demonstrates to the public that this type of behaviour will not be tolerated. While the tribunal is not convinced that the penalty imposed by Queensland Racing meets these requirements, we have not been persuaded that any alternative penalty would better serve that purpose. Certainly, we do not think that a fine of $500, as proposed by Mr Vains, adequately reflects the serious nature of this incident.
Conclusion
[49] The tribunal, having found that Mr Vains is amenable to a penalty being imposed by the Stewarts’ exercising jurisdiction under the Rules, is satisfied to the requisite standard that Mr Vains did strike Mr Brunker in the car park adjacent to the BTC on 14 August 2010 and that this was conduct prejudicial to the image, or interests, or welfare of racing within the meaning of AR.175A.
[50] The decision of Queensland Racing to disqualify Mr Vains for a period of three months is confirmed. The application is dismissed.
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