Wiggins v Racing Queensland Ltd
[2011] QCAT 370
•9 August 2011
| CITATION: | Wiggins v Racing Queensland Ltd [2011] QCAT 370 |
| PARTIES: | Mr Ryan Wiggins (Applicant/Appellant) |
| v | |
| Racing Queensland Ltd (Respondent) |
| APPLICATION NUMBER: | OCR132-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Peta Stilgoe, Member |
| DELIVERED ON: | 9 August 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of the respondent made on 21 June 2011, that the applicant be suspended for 12 days, be set aside and in lieu thereof he be reprimanded. |
| CATCHWORDS: | RACING – APPEAL ON PENALTY – where jockey took prescription drugs and over-the-counter pain relief – where urine tests revealed excess quantities of morphine and codeine – where Racing Queensland changed policy in relation to penalty – where change of policy referred to in article – whether sufficient notice of change of policy – whether grounds for change of policy – whether penalty imposed for a breach of AR81C is excessive Queensland Civil and Administration Act 2009, s 20 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr P McCowan of McInnes Wilson Lawyers for Mr Wiggins |
| RESPONDENT: | Mr A J Orchard, in house lawyer for Racing Queensland |
REASONS FOR DECISION
Mr Wiggins has been a professional jockey for 12 years. He, like other jockeys, is generally familiar with the Australian Rules of Racing but not necessarily familiar with the detail with respect to the prohibition on declared or banned substances as provided for in the Australian Rules of Racing[1]. These substances include all opiates and opoioids typically found in common prescription drugs like Panadeine Forte and some over-the-counter drugs like Nurofen Plus.
[1] AR 81B.
In early May 2011 Mr Wiggins was experiencing quite significant pain as a result of problematic wisdom teeth. The pain was so bad that he attended the Brisbane North Private Hospital on 20 May for medical treatment. He was given Panadeine Forte and some gel was applied to his teeth to relieve pain. He was told to take the Panadeine Forte if the pain persisted until he could have his wisdom teeth removed. He subsequently visited his dentist on 24 May who prescribed antibiotics and Panadeine Forte. During that week, he took more Panadeine Forte together with some Nurofen Plus. He swears, and there is no evidence to contradict this statement, that he last took 2 Panadeine Forte late on the evening of Thursday 26 May, or early on the morning of Friday 27 May. His recollection is that he took the drugs between approximately midnight and 2am on the Friday morning.
He then rode at the Doomben race meeting on the following Saturday afternoon, 28 May. During the afternoon a urine sample was taken for analysis and it revealed the presence of morphine and codeine, banned substances under AR 81B. A confirmatory test was conducted which confirmed the presence of those substances.
On 21 June 2011 Stewards convened an inquiry into Mr Wiggins’ breach of AR 81B.
The material before the inquiry included a certificate from Racing Analytical Services Ltd which showed Mr Wiggins specimen contained 12,000 ug/L of morphine and 12,000 ug/L of codeine which was well above the prescribed limit of 15,000ug/l combined.
During the course of the inquiry Mr Wiggins explained to the Stewards why he had taken the drugs; which was, of course, to relieve the pain of his wisdom teeth. He was able to recall when he took the Panadeine Forte, but had some difficulty in remembering when he took the Nurofen Plus although he does say that he did take some between 20 May and 24 May.[2] The Stewards explained to him that pursuant to AR 81C(b) the total permissible level of a combination of both codeine and morphine is 15,000 ug/L whereas his test resulted in a level of 24,000 ug/L in total.
[2] Transcript 21 June 2011 page 6 L20.
Mr Wiggins accepted that he was in breach of AR 81A(1)(a). After hearing submissions from Mr Wiggins and considering the prevailing circumstances, the Stewards suspended Mr Wiggins from riding in races for a period of 12 days, more particularly, between 26 June 2011 up to and including midnight on Friday 8 July 2011. In imposing the penalty the Stewards took into account previous cases where the suspension ranged between 1-2 weeks.
Mr Wiggins then appealed the penalty to the First Level Appeals Committee who heard that appeal on 30 June 2011. The Committee upheld the penalty.
From that decision of the Committee, Mr Wiggins filed an application to review their decision in the Tribunal on 6 July 2011. The grounds of review contend that Racing Queensland failed to take into account Mr Wiggins’ good riding history with no previous similar breaches of the Rules of Racing and also it failed to adequately advise jockeys of its intentions to increase penalties for breaches of AR 81B. Further, that in all the circumstances the penalty imposed was excessive.
[10] It is true that prior to Mr Wiggins’ breach, Racing Queensland would generally impose a reprimand on jockeys who breached AR 81B by taking drugs for medicinal purposes. An example of this is the Stewards’ decision on 17 December 2010 when jockey Danny Craven was given Panadeine Forte by an ambulance officer when he was complaining of headaches. A subsequent urine sample revealed that the level of codeine and morphine was in excess of the prescribed limit. When the matter came on before the Stewards, they took the circumstances into account and reprimanded Mr Craven. In the Stewards report[3] they said:-
“D Craven was further advised that he had to take more responsibility for the medication that he takes to assist his ongoing injuries and that if he were to again exceed the threshold for morphine and codeine, Stewards would look to stand him down from riding and in all likelihood impose a greater penalty.”
[3] Exhibit 12.
[11] Reprimands were similarly imposed in the cases of Tozer and Banister.[4]
[4] Transcript 30 June 2011 page 17 L14.
[12] Racing Queensland sought to introduce a change in policy with respect to the detection of prescribed medication in excess of the permissible quantity. This was done by publishing an article in the Racing Queensland Magazine which is a monthly publication and delivered to all registered jockeys in Queensland.
[13] The magazine comprises a number of sections. One section relates to thoroughbred racing, another relates to harness racing and a third relates to greyhounds. The magazine includes a calendar of upcoming events as well as news generally of what has happened within the industry. Another section in the magazine described as “Tri-Code” includes Integrity News. An article was published by Mr Orchard, the director of Integrity Operations which was titled “Human Testing”. The article goes on to discuss the prohibited substance testing program and that all riders and drivers of horses should be aware of this program. It reminds riders that if they do take prohibited substances they can apply for permission pursuant to AR 81E and that the Integrity Department can advise riders of these requirements if requested. Secondly, the article specifically states that morphine and codeine substances are prohibited unless they are within the quantities referred to in AR 81C. The article then goes on to remind riders that non compliance with AR 81C and the presence of a prohibited substance is in excess of that prescribed in the rule, creates a safety issue not only for the individual rider, but for other riders in the field. The warning that penalties may be increased is contained in the following paragraph:-
“In recent cases, riders have been reprimanded but in future, more serious penalties may be imposed and to avoid that occurring, riders are urged to contact the Integrity Department if they need advice in complying with the requirements of the Rules.”[5]
[5] Exhibit 9 page 8.
[14] It is Racing Queensland’s contention that this article put all riders on notice of the Stewards intention to increase penalties for breaches of AR 81B.
[15] We note that Racing Queensland produced no evidence to the tribunal to support the proposition that breaches of AR 81B were increasing or that exceeding the permitted levels of morphine and codeine had resulted in any incident in which a rider’s safety was compromised.
[16] Mr Wiggins acknowledges receiving the magazine but says he did not read it at the time. He first read it at the inquiry before the Stewards. He, like Messrs Munce and Cassidy, both jockeys who gave evidence in the hearing, generally only have a cursory look through the magazine and usually it is then confined to the section which mainly interests them, that is thoroughbred racing. One can readily appreciate this complacency because receiving an industry magazine once per month year in year out for over 12 years for Mr Wiggins, and 25 years for Mr Munce and Mr Cassidy, it may not attract a lot of attention. As Mr Munce points out, he only looks at articles and photos that are relevant to himself because there is a preponderance of material published generally on week-ends and during the week with news articles about racing and jockeys.
[17] Racing Queensland also relies on the renewal of jockey license application forms signed by all jockeys. That form clearly states that the jockeys acknowledge and agree to be bound by the Rules of Racing and they are aware that they must continually update themselves in relation to rule changes which are published on the website and in the Queensland Racing magazine.
[18] This change of policy is obviously not a rule change. A rule change which is going to impact on a jockey is usually published through their own association, and notices are posted in the jockeys’ room. We take the view that if Racing Queensland intends to change a policy it is incumbent upon it to publicise that change of policy in a manner which is likely to come to the jockeys’ attention. This can be achieved through notices in the jockey room, emails, or even – if the magazine is going to be used as the vehicle – some notation on the cover, perhaps to ensure it is brought to jockeys’ attention. We suspect there are many ways this can be achieved. In addition to that, even if the article was read by the jockeys it does not articulate with any certainty the type of “more serious penalties that might be imposed”.
[19] Having regard to the evidence given by Mr Wiggins, Mr Cassidy and Mr Munce about their reliance on the magazine, we do not consider this was a sufficient notification of a change of policy which would automatically, it seems, result in a suspension rather than a reprimand.
[20] Even so, the mere fact of a breach does not justify an automatic suspension irrespective of the circumstances that gave rise to the breach. Accepting Mr Wiggins’ evidence that having taken the last dose of medication, at worst, at about 2am on Friday morning, there would have been a reasonable expectation on his part, consistent with the expert evidence, that the dosage would have largely dissipated by the time he rode his first race at Doomben on the Saturday. Dr Jander[6] in her report said that the codeine contained in Panadeine Forte, if taken at its maximum dosage being 6 tablets in 24 hours should dissipate from the body within about 24 hours. Dr Jander also said that if one took the prescribed dose then the concentration should be below 15,000 ug/L 24 hours after cessation of use but, if the dosage is combined with another codeine product like Nurofen Plus, then the concentration will be elevated.
[6] Exhibit 8.
[21] Dr Jander was asked to hypothesise as to whether she could say with any certainty that if the last dose was at 2am on Friday morning, why there was such a high level when the urine sample was taken. She could not provide any reason for this because, as she told the tribunal, other factors come into play including the individual’s metabolism, hydration and the level of the codeine dose in the body at the time the last dose was taken. The effect of this evidence is that one can not infer that, despite Mr Wiggins’ evidence, a last dose was taken much later than he suggests. Dr Cable[7] gave similar evidence in his report. In fact, he went a little further by saying that it was difficult to predict whether an individual prescribed appropriate doses would produce a concentration below the accepted level.
[7] Exhibit 1.
[22] The function in the review process is to arrive at the correct and preferable decision and do so by way of a fresh hearing on the merits.[8]
[8] QCAT Act, section 20.
[23] The Tribunal has to consider the evidence put before the Stewards both at the initial inquiry and at the appeal level and also the evidence put before this Tribunal during the course of the hearing.
[24] That evidence establishes that Mr Wiggins took Panadeine Forte in the early hours of Friday morning with some ingestion of Nurofen Plus either the day or in the day before Friday morning. Although he was generally aware of the prohibition substances of the type nominated in AR 81B, he related this more to banned recreational drugs rather than prescribed medication. Be that as it may, he accepted his responsibility for breaching the rule but considered, on reasonable grounds, that firstly, the drug would have dissipated from his system and secondly, he was no danger either to himself or to other jockeys in the field by riding on Saturday. There is no evidence to suggest that his conduct in the riding of races on that Saturday afternoon exposed any other jockey or himself to risk of harm.
[25] Mr Wiggins submits that in all those circumstances the appropriate penalty ought to have been a reprimand rather than a suspension. Precedent decisions prior to the publication of the article in Racing Queensland would support this contention.
[26] Racing Queensland contend that there was fair warning to Mr Wiggins and other jockeys of its intention to raise the bar on penalties because of the frequency of presentation by jockeys with the presence of prohibited substances, but not necessarily exceeding the minimum level. But as we have indicated, if it is the intention of Racing Queensland to deviate from previous policy it is its responsibility as the administrator of the sport to ensure that jockeys are aware. There is no reason why Racing Queensland could not have adopted a system of conveying messages to jockeys as was done in Victoria and sworn to by Mr O’Keefe, the Executive Officer of the Victorian Jockeys Association. That included: developing a section on their website; advising jockeys as to what medications they can and cannot take; and for them to be able to contact medical professionals nominated by the racing body to assist jockeys. Racing Queensland should also provide each jockey with notification of rule changes and, we will take that one step further, that obligation should include significant policy changes. Communication of these messages would be a simple process even if it was done by bulk email or via the internet as registered jockeys now have access to the internet for the purposes of registering for rides.
[27] Irrespective of the policy change, we consider that in the circumstances of this case, when considering the matter afresh, a reprimand was warranted and similar to the case of Mr Craven, any further breaches of the rule would warrant a more severe penalty.
[28] Therefore, the Tribunal proposes to set aside the decision of the Stewards and substitute its own decision. The decision is that Mr Wiggins be reprimanded.
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