Winfield v Racing Queensland Limited

[2011] QCAT 271

CITATION: Winfield v Racing Queensland Limited [2011] QCAT 271

PARTIES:	Ms Alisha Winfield
v
Racing Queensland Limited

APPLICATION NUMBER:   OCR092-11

MATTER TYPE: Occupational regulation matters

HEARING DATE: 23 May 2011

HEARD AT: Brisbane

DECISION OF: Mr Brock Miller, Presiding Member
Ms Sandra Deane, Member

DELIVERED ON: 16 June 2011

DELIVERED AT: Brisbane

ORDERS MADE:      [1]     The review is dismissed.

CATCHWORDS: Application for review of refusal to grant an apprentice jockey’s licence – fit and proper person – Licensing Scheme Policy – application dismissed

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Alisha Winfield represented by Mr Hunter Trotman instructed by AW Bale & Sons Solicitors
RESPONDENT:	Racing Queensland Limited represented by Ms S C Holland

REASONS FOR DECISION

1. At the outset the applicant sought this Tribunal’s intervention to secure removal from the transcript and the file of an Affidavit of Rebecca Elizabeth Lawson, an employee of Racing Queensland Limited because the Affidavit annexed various pages of the facebook material of Alisha Winfield which had, she said, been received by mail in an anonymous envelope.  Mr Trotman was of the opinion that it was improper for the material to be considered in this matter and a discussion centred upon the method of dissemination of information by facebook.  As facebook is structured people are invited to be friends of the owner of the page in question and the owner then posts various comments which she apparently did in this circumstance on the “wall”.  The particular comments were colourful in language and perhaps of a disdainful view of the personnel of Racing Queensland or one person in particular.  Ms Holland was of the view that these are public documents.  It is, she opined, irrelevant what level of privacy is thought to have been attached to the comments.  The fact is that these documents were submitted by the applicant and the comments made by her and she suffers whatever consequences flow there from.  It would be a matter for the Tribunal to place such weight as it thought appropriately on the comments in question and the final ruling was that the information and the Affidavit were to be received into this Review.

1. Alisha Winfield gave evidence under oath.  She confirmed that she had been an apprentice jockey and she had subsequently become pregnant.  She went to representatives of Racing Queensland who informed her that she should cancel her licence as she could then restart it or renew it later when she was more in a position to complete her training.  She agreed with that proposition.  At the present time she has 9 to 10 months to go of her working contract to complete the modules and the riding assignments that are provided to her however she doesn’t have a licence to effectively ride as an apprentice jockey now.  She had been apprenticed to Les Ross from 2004 to 2005 and then again from late 2005 to 2009.  He was her main Master.  Les Ross’ licence was about to be revoked because of some drug infringements but it was through no fault of her own.  She was then able to transfer her indentures to Colleen Shirley a female trainer but only for a very short time.  Colleen Shirley wanted to impose restrictions on her that were not suitable.  Some of these related to her association with her current partner and also she wanted her to live with Colleen Shirley and be subjected to her rules.  Alisha Winfield did not agree with this.  She moved on from that and returned to Les Ross and admits that on one occasion when worried about her own safety she had raised issues with Mr Peter Smith who was the apprentice training manager at Racing Queensland.  She apparently had been asked to ride horses that she considered to be dangerous and she wanted him to intervene.  There was some form of intervention by Mr Smith but she thought it was more along the lines of merely advice not about discussing things with her Master Mr Les Ross.  In any event a meeting was held with Les Ross by Racing Queensland.

1. After Less Ross’ removal from the racing scene she reapplied for an apprentice jockey’s licence and contacted Peter Smith.  She said that she had once again recovered the passion for riding and wanted to be a jockey.  She had found the name of a trainer Jason Waters who was prepared to take her on and she asked Mr Smith to approve that transfer.  Mr Smith apparently indicated to her that Mr Waters was not in his opinion an appropriate person for her to be licensed or apprenticed to.  He told her that he wanted a list of four trainers and she obtained the names of four trainers and gave them to him and he chose Neil Hocking as his choice.  She telephoned him and it was during the course of his conversation with her that he made a number of derogatory comments she alleges.  She says that these comments were whilst she was on a speaker phone and her partner was present at the time and heard those comments.

1. In any event she complained to Jamie Orchard who is the Integrity Officer of Racing Queensland and an enquiry was undertaken by Racing Queensland such that Mr Smith was instructed to be non-participating in her application for a jockey’s licence or apprentice jockey’s licence.  She then became concerned when after the application was listed he was on the panel but he stood down and then there was one other member who was unable to participate.  That meant that there was not a quorum and so the meeting had to be adjourned and all the papers were then sent to the members with the exception of Mr Smith.

1. That Licensing Committee decided to decline the application for an apprentice jockey licence.  The applicant was advised that she could address the Committee and/or appeal to QCAT.  It appears that Ms Winfield addressed the Licensing Committee on 5 April 2011 and following that determination or that address by letter of 5 April 2011, Mr Peter Smith the Licensing and Training Manager signed the letter notifying the applicant that the Committee had resolved not to change its decision and that the application to obtain an apprentice licence was to be declined.  Ms Winfield of course objects strongly to Mr Smith having taken part in any element of the determination as, in her opinion, he was biased towards her.

1. This Tribunal has considered all of the material in respect to the steps that have been taken by Mr Smith.  In the opinion of this Tribunal they are purely executive determinations that have had nothing whatever to do with the determination of the decision of the Licensing Committee.  This Tribunal is of the opinion that Mr Smith took no part in that determination other than he signed the letters in the capacity of Licensing and Training Manager.  In our opinion there is insufficient evidence before the Tribunal to satisfy us that he, during the course of this enquiry, acted in such a way as to prejudice Ms Winfield's application.

1. The Counsel for the respondent suggests in fact that this Tribunal should ignore the process that Mr Smith played in the final determination and we agree.  Counsel believes that this Tribunal is confined to identifying whether in all the circumstances the applicant is a fit and proper person and complies with the Licensing Scheme Policy that was made on 1 July 2010.  On page 5 of that policy, the issue of the suitability of licensees is identified and certain criteria are noted as having to be taken into account.  In particular, a person’s fitness is of paramount importance.  The issue of fitness relates not only to the physical ability to perform duties but also to the person’s mental fitness to make correct decisions in relation to behaviour by demonstrating a continuing moral commitment to good behaviour and good character.  A further element that forms part and parcel of the criteria is Propriety.  It is noted that Propriety relates to the general level of integrity of the person.  It is intended primarily to be concerned with general behaviour and conduct inclusive of history, reputation, integrity, honesty and character.  Racing Queensland also raised some issues in respect of Ms Winfield's lack of physical fitness.

1. These are two elements that are to be considered by any Licensing Committee and the applicant must satisfy the Committee and its members before a decision will be made granting such a licence.  The Licensing Committee of Racing Queensland came to the conclusion that Ms Winfield was not a fit and proper person because of the history exhibited by her in the preceding years and they formed the opinion that it was not appropriate that she be a licensed person because of the manner in which she had conducted herself.  Further, Ms Winfield provided no evidence to this Tribunal as to her level of physical fitness.  Therefore there is insufficient evidence upon which we could make a finding that she has an appropriate level of physical fitness to entitle her to be re-licensed.

1. If the Licensing Committee forms that opinion and has done so based on the material supplied and provided to the members of the Committee, then assuredly on a Review of that determination to this Tribunal, evidence must be submitted that identifies that either incorrect information was used to reach the decision or there is some fresh evidence that would warrant this Tribunal overturning the determination of the Licensing Committee.

1. At this Review no further evidence was provided.  Ms Winfield did give evidence but only as to matters that had previously been contemplated by members of the Committee.  There was nothing new that would persuade this Tribunal to interfere with the determination.  There is no evidence to suggest that Ms Winfield has in any way changed her outlook or altered her conduct.  She simply believes that she has done nothing wrong and that it was not of her doing or through her fault that she has come to be the subject of dismissal of the application. 

1. In the opinion of this Tribunal, her conduct to date exhibits a lack of Propriety.  She should have provided to this Tribunal positive information and evidence that may have assisted the Tribunal to find that she could be relicensed, however she has chosen not to do so believing that this is something that can be resolved simply by having the Tribunal determine that Mr Smith acted improperly and out of malice.  This Tribunal is not prepared to find that he did so.

1. There is always an opportunity for an applicant for licence to identify that there has been a change in attitude such that she should become a relicensed person but to date that has not been forthcoming.  If she were to provide evidence that she had worked hard, was physically fit, showed due and proper respect for her position and for persons who were trying to instruct her then a Licensing Committee or this Tribunal standing in its shoes may consider it appropriate for her to be considered for relicensing however, in the opinion of this Tribunal, such evidence has not been provided and therefore that is not appropriate at this point in time.

1. In the circumstances the Review is dismissed.