Winchester v Queensland Racing

[2010] QCAT 376

CITATION: Winchester v Queensland Racing [2010] QCAT 376

PARTIES:	Mr Barry David Winchester
v
Queensland Racing

APPLICATION NUMBER:   OCR149-10  

MATTER TYPE: Occupational regulation matters

HEARING DATE:     16 July 2010

HEARD AT:  BRISBANE 

DECISION OF: Mr Richard Oliver – Senior Member
Mr Brockwell Miller - Member

DELIVERED ON: 4 August 2010

DELIVERED AT:      BRISBANE

ORDERS MADE: 1.   The Application is dismissed.

CATCHWORDS :  Suspension of trainers license, application of Queensland Racing’s Licensing Scheme Policy where applicant charge with criminal offences, integrity of industry considered.

APPEARANCES and REPRESENTATION (if any):

APPELLANT:	Mr David Wincehster on his own behalf
RESPONDENT:	Mr A J Orchard – Integrity Officer of Queensland Racing Ltd for Respondent

REASONS FOR DECISION

1. Barry Winchester is a trainer licensed with Queensland Racing Limited. (“Queensland Racing”). Queensland Racing became aware of certain criminal charges against him and purported thereafter to suspend his licence pending a determination of these charges. Queensland Racing based its determination upon the Licensing Scheme Policy principles that then existed. This application is to review the decision that has been the result of that determination.

1. Barry Winchester has been charged with various criminal offences relating to rape and other serious sexual offences. Queensland Racing have opined that s.34(1) of the Racing Act allows a control body to assess the performance of participants against the relevant policies of the control body to ensure the participants continue to be suitable to be licensed.  Section 81 of the Act provides that a control body must have a policy for its code of racing about each of the following –

c)    Its licensing scheme as mentioned in Division 2

Section 86 of the Racing Act provides that the purposes of a control body’s licensing scheme for its code of racing are to ensure –

a)   The integrity of racing activities conducted as part of a code; and

b)   The safety of persons involved in racing or training licensed animals; and

c)   The welfare…

Section 87 of the Act provides as follows:

The control body’s policy for its licensing scheme must provide for all of the following matters –

(j)    When and how a licence may be immediately suspended in order to protect the safety of persons or welfare of animals.

1. Queensland Racing Limited implemented a Licensing Scheme Policy pursuant to s.87(2).  The policy in one particular provides:

Queensland Racing may immediately suspend any licence issued by it if a Queensland Racing employee forms the belief that the safety of persons…is in danger and that belief is reviewed and adopted by the Licensing Manager, Chief Steward or Director of Integrity Operation or another person appointed by the Board of Queensland Racing.

1. The policy provides examples of reasons for immediate suspension of a licence and these include:

Allegations or charges or a criminal nature which require Queensland Racing to exercise a duty of care to participants or animals or to safeguard the integrity of the industry or to ensure the safety and welfare of other participants or the public who may be particularly at risk; young; female; apprentices and trainers; handicapped.

Australian Rule of Racing (AR) 7 stipulates that a principal racing authority shall:

(iii)In furtherance and not in limitation of all powers conferred on it or implied by these Rules, have power, in its discretion:

(b)   ...at any time to suspend, vary or revoke any such licence without giving any reason therefore.

1. Queensland Racing suggest that it is clear therefore from the provisions of the Racing Act that its licensing scheme policy and the Australian Rules of Racing empower the respondent to suspend the licence in circumstances as noted in the policy. Queensland Racing suggest that it be granted a further entitlement to impose such suspension immediately where appropriate circumstances exist.  It is suggested that where there are allegations or charges of a criminal nature these constitute appropriate circumstances having regard to the wording of the policy and it’s intent.

1. It is not for this Tribunal to determine whether Mr Winchester is guilty or not of the offences it is merely for it to determine whether or not Queensland Racing is correct in its interpretation of the issues of the policy and whether or not the policy should be implemented in circumstances such as those which have arisen here.

1. Mr Winchester of course believes that it is inappropriate for Queensland Racing to impose any such constraint or restriction on his licence when he has never been proven guilty.  If he were to have been proven guilty then undoubtedly Queensland Racing would look at other issues to determine what its obligations were in all the circumstances. He contends that he poses no risk to any individual working in the industry particularly, at the complex where he stables his horses, nor at the training facilities where he trains his horses. He has complied with strict bail conditions since the charges were first laid. This certainly militates in Mr Winchester’s favour.

1. He submits he will suffer extreme prejudice if he loses his licences because he will have to give up his stables at Deagon in circumstances now where stables are in high demand. He has been a trainer for some 25 years and it is his principle source of income. Although this is contended by Mr Winchester, it is difficult to discern this from the financial evidence put before the tribunal. However, having said that, the suspension of his licence remains a significant consequence of the predicament Mr Winchester now finds himself in. Obviously this is an important consideration in Mr Winchester’s favour.

1. What Mr Winchester cannot satisfactorily address is the impact on the integrity of the industry as a whole as a consequence of, as a licensed trainer, having been charged with such serious offences. It is this issue that lies at the heart of the decision to suspend his licence. There is of course concern about those who might be vulnerable identified in the policy but this takes on a lesser significance given Mr Winchester’s compliance with bail conditions, and to a degree his denial of all guilt.

1. In exercising the review jurisdiction the Tribunal must, inter alia, perform the functions conferred on the Tribunal by the Racing Act and has all of the functions of the decision-maker for the reviewable decision being reviewed[1]. Further the Tribunal, must hear and determine the application by way of a fresh hearing on the merits and produce the correct and preferable decision. In undertaking this task the respondent’s reasons for coming to the decision, and it’s submissions at this hearing are relevant to our consideration.[2]

   [1] Queensland Civil and Administrative Act section 19.

   [2] Supra section 20,

1. It is with significant apprehension that the Tribunal has come to the conclusion that Queensland Racing is, purely via the application of AR7 and by the policy procedures, entitled in circumstances such as those visited upon Mr Winchester to take action to suspend his licence pending the outcome of the proceedings brought against him.  It is also the Tribunal’s determination that charges or allegations of such serious nature would constitute appropriate circumstances contemplated by the policy. It is then to be determined whether the relevant designated officials could reasonably have formed the necessary opinion in that respect.  It is conclusively identified, and we are satisfied, that the integrity officer and the licensing committee have considered all of the matters in question and, without forming any opinion as to the guilt or otherwise of Mr Winchester, have come to such a conclusion that the criminal charges laid against him do constitute appropriate circumstances, in particular having regard to the integrity of the industry as a whole, and that they act accordingly.

1. Having considered the matter afresh we see no reason to interfere with the decision of the applicant and therefore the application for review is dismissed.