Whitaker v Harness Racing Queensland

CITATION: Whitaker v Harness Racing Queensland [2011] QCAT 693

PARTIES:	Mr Gary Philip Whitaker
v
Harness Racing Queensland

APPLICATION NUMBER:   RH004-09

MATTER TYPE: Occupational regulation matters

HEARING DATE:     7 May 2010

HEARD AT:  Brisbane

DECISION OF: Mr Richard Oliver, Senior Member
Ms Kate Buxton, Adjudicator

DELIVERED ON: 17 May 2010

DELIVERED AT:      Brisbane

ORDERS MADE:

1.   The appeal is allowed.

2.   The decision of the Stewards of 22 July 2010 is set aside.

CATCHWORDS : 

Whether failure to comply with Step 7 of the collection procedures published by the Racing Animal Welfare and Integrity Board by not sealing the plastic bag amounts to substantial compliance

Racing Act 2002, s 352A(3)

APPEARANCES and REPRESENTATION (if any):

APPELLANT:	Mr Gary Philip Whitaker represented by Mr Murdoch SC instructed by Gabriel Ruddy & Garrett
RESPONDENT:	Harness Racing Queensland represented by Mr Callaghan SC instructed by Schweikert Lawyers

REASONS FOR DECISION

Introduction

1. The essential issue in this application for review is whether a Plasma Total Carbon Dioxide Certificate (“the certificate”) on which the Stewards relied in convicting the Appellant of on offence under section 190(1) of the Harness Racing Rules ought to have been relied upon as the proper basis for the conviction.

1. The certificate evidenced a pre race blood sample from the appellant’s horse as positive to TC02.[1] 

   [1]        See certificate dated 5/6/09, exhibit 4B; certificate dated 7/6/09, Exhibit 6B.

1. It is common ground that a step in the collection protocol, which we will address in more detail below, was not followed.  The Appellant argues that this precluded the Stewards from relying on the certificate and that the consequent conviction under section 190(1) of the Harness Racing Rules should be set aside.

1. The Respondent contends that there was substantial compliance, within the meaning of section 352A of the Racing Act 2002 (“RA”), with the collection protocol and that is sufficient for the certificate to evidence the offence.

1. This matter has progressed through the former Racing Appeals Tribunal to his Honour Judge Botting of the District Court, who set aside the decision of the former Tribunal and remitted the application back to QCAT for further consideration.  We are asked to proceed on the basis of an agreed set of facts and on documents which formed the record of the Racing Appeal Tribunal proceedings.

The Arguments

1. The Appellant’s challenge to the certificate is based upon the way in which the relevant sample was dealt with and whether or not the process undertaken was compliant with the “collection procedures” published by the Racing Animal Welfare and Integrity Board[2] (“collection procedures”).

   [2]        Version 3, Effective 1 March 2008, exhibit 11.

1. The collection procedures are published by that Board pursuant to section 115(3) of the Racing Act 2002, and are required by section 143(3) RA to be adhered to. Relevantly, that section provides:

143 Way control body may take or deal with a thing for analysis

…

(3) If the results of the analysis are to be used by the control body for a purpose other…