Whiteley v Queensland Racing Integrity Commission - [2021] QCAT 273

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Whiteley v Queensland Racing Integrity Commission [2021] QCAT 273

PARTIES:

CHRIS WHITELEY
(applicant)

v

QUEENSLAND RACING INTEGRITY COMMISSION

(respondent)

APPLICATION NO/S:

OCR265-20

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

2 August 2021

HEARING DATE:

13 July 2021

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

1. The correct and preferable decision is to set aside the decision of the Queensland Racing Integrity Commission dated 27 August 2020 and substitute a decision that Chris Whiteley is not guilty.

2. The stay dated 31 August 2020 is lifted.

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – OTHER PROFESSIONS, TRADES AND CALLINGS – thoroughbred racing – where charge of failing to capitalise on opportunities – whether charge substantiated on review – where Commission has burden of proof – where evidence not sufficient to discharge burden of proof

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24

Dixon v Queensland Racing Integrity Commission [2018] QCAT 183
El-Issa v Racing Queensland [2011] QCAT 230
Lewis v Queensland Harness Racing Board [2007] QRAT 8
McGillivray v Queensland Racing Integrity Commission [2019] QCAT 317
Missen v Racing Queensland Limited [2013] QCAT 360
Queensland Racing Ltd v Ganderton [2010] QCAT 348
Racing Queensland Ltd v Cassidy [2012] QCAT 31
Racing Queensland Ltd v Cullen [2011] QCAT 393

APPEARANCES & REPRESENTATION:

Applicant:

L Collins of South Geldard Lawyers

Respondent:

W Kelly, Principal Legal Officer

REASONS FOR DECISION
What is this application about?

The Queensland Racing Integrity Commission suspended jockey Chris Whiteley for two months for failing to capitalise on opportunities in the early and middle stages of a race and suspended him.[1] Mr Whiteley disputed both the finding and the penalty.
[1]Internal Review Decision dated 27 August 2020, Australian Rule of Racing 129(2).
Because I am not satisfied that the Commission has discharged the burden of proof to the relevant standard,[2] the correct and preferable decision[3] is to set aside the decision of the Commission and substitute a decision that Mr Whiteley is not guilty.[4] This means that the decision on penalty is also set aside.
[2]El-Issa v Racing Queensland [2011] QCAT 230, [46].
[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.
[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24.
The offence is serious and has intent as an element:
Decisions which, with the benefit of hindsight, can be seen as poor, or even a lack of skill or proper diligence on the day, are not sufficient to make out the charge. There has to be an element of intent.[5]
[5]Missen v Racing Queensland Limited [2013] QCAT 360, [63].
I am not satisfied that Mr Whiteley had this intent. The standard of proof is higher because of the seriousness of the charge.[6] Mr Whiteley is a highly experienced and accomplished jockey with over 30 years’ experience. Senior Stipendiary Steward Paul Lane described him as a “gun rider”, who “knows the track very well”…

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: [2021] QCAT 273
Decision Date

CaseChat Overview and Summary

Chris Whiteley, a jockey, applied to the Queensland Civil and Administrative Tribunal (QCAT) for a review of a decision by the Queensland Racing Integrity Commission (QRIC) to suspend him for two months for allegedly failing to capitalise on opportunities during a race. The QRIC had imposed the penalty under the Australian Rules of Racing. Whiteley contested both the finding of guilt and the penalty. The tribunal's task was to determine whether the QRIC's decision was justified and whether the penalty was appropriate.

The tribunal found that the QRIC had not discharged its burden of proof to the requisite standard. The tribunal noted that intent was an essential element of the charge, and poor decision-making or a lack of skill or diligence was not enough to establish intent. The tribunal was not convinced that Whiteley had the requisite intent. Furthermore, Whiteley's experience, knowledge, and explanation for his actions were compelling and credible. The tribunal accepted that Whiteley rode the horse according to the trainer's instructions and assessed the race as it unfolded. The tribunal found that Whiteley's actions did not fall below the level of objective judgement reasonably expected of a jockey in his position. Therefore, the tribunal concluded that Whiteley was not guilty.

The tribunal set aside the QRIC's decision and substituted its own decision that Whiteley was not guilty. The tribunal also set aside the penalty and lifted the stay on Whiteley's racing licence. The tribunal's decision was based on its assessment of the evidence and the applicable legal principles. The tribunal found that the QRIC's decision was not supported by sufficient evidence and that Whiteley's explanation for his actions was credible. The tribunal's decision provides guidance on the standard of proof required in disciplinary proceedings and the importance of considering the jockey's perspective when assessing their actions during a race.

Orders