Wiggins v Racing Queensland Ltd - [2011] QCAT 370

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
Australian Rules of Racing, rules 81B, 81C

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…

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: [2011] QCAT 370
Decision Date: 9 August 2011

CaseChat Overview and Summary

In this matter, the applicant, Mr Wiggins, a jockey, was suspended by the respondent, Racing Queensland Ltd, for taking prescription drugs and over-the-counter pain relief, which resulted in his urine tests showing excess quantities of morphine and codeine. The penalty of suspension was imposed under the Racing and Betting Rules, and the applicant appealed against the decision to the Queensland Civil and Administrative Tribunal (QCAT). The Tribunal found in favour of the respondent, and Mr Wiggins sought judicial review of that decision in the Queensland Court of Appeal.

The legal issues before the court were whether the change in policy by Racing Queensland, which was referred to in an article, provided sufficient notice of the change in policy, whether there were valid grounds for the change of policy, and whether the penalty imposed for the breach of AR81C was excessive. The court noted that the change in policy was not published in the official Racing Queensland publications or on its website, and therefore, did not provide sufficient notice to the applicant. Additionally, the court found that there were no valid grounds for the change in policy, and that the penalty imposed was excessive.

The court held that the decision of the Tribunal was flawed and that the penalty imposed on the applicant was excessive. The court set aside the decision of the Tribunal and in lieu thereof ordered that the applicant be reprimanded. The court noted that the penalty of suspension was not warranted in this case, as the applicant had no prior history of breaches of AR81C and had cooperated with the investigation. The court also noted that the penalty of suspension would have a significant impact on the applicant's career and livelihood.

The court's decision provides guidance to racing organisations and participants in relation to the imposition of penalties for breaches of racing rules. The court emphasised the importance of providing sufficient notice of changes in policy and ensuring that penalties are proportionate to the offence. The decision also highlights the importance of considering the impact of penalties on the livelihood of participants in the racing industry.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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