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Queensland Racing Integrity Commission v Scott

 

[2019] QCATA 121

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland Racing Integrity Commission v Scott [2019] QCATA 121

PARTIES:

QUEENSLAND RACING INTEGRITY COMMISSION

(applicant/appellant)

 

v

 

RACHEL LEIGH SCOTT

(respondent)

APPLICATION NO/S:

APL260-18

ORIGINATING
APPLICATION NO/S:

OCR252-16

MATTER TYPE:

Appeals

DELIVERED ON:

8 August 2019

HEARING DATE:

2 April 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

Member Kanowski

ORDERS:

  1. The appeal is allowed.
  2. The decision of the Tribunal of 3 September 2018 is set aside.
  3. In substitution for the penalty imposed by the Tribunal, Rachel Leigh Scott is suspended from holding a trainers licence for a period of 9 months, commencing 2 weeks from the date of this order, in addition to the suspension of 3 months on conditions which commenced on 18 September 2018 and ended on 17 December 2018 following the decision of the Tribunal of 3 September 2018.
  4. The fine of $6,000 paid by Rachel Leigh Scott is to be repaid within 2 weeks of the date of this order.

CATCHWORDS:

ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – where harness racing trainer failed to present a horse free of a prohibited substances – where urine sample above the cobalt threshold — where breach was due to carelessness in the feeding and supplement regime – whether wrong principles applied – whether suspension for three months manifestly inadequate

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – whether wrong principles applied – whether suspension for three months manifestly inadequate

Australian Harness Racing Rules, r 188A, r 190, r 259

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142

Baggs v University of Sydney Union [2013] NSWCA 451

Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemsted’ (1976) 136 CLR 529

Cole v Harness Racing Victoria (Review and Regulation) [2018] VCAT 1930

Day v Harness Racing NSW [2014] NSWSC 1402

Demmler v Harness Racing Victoria [2017] VCAT 600

Donoghue v Stevenson [1932] AC 562

Graham v Queensland Racing Integrity Commission [2019] QCAT 198

Harness Racing Victoria v Chisholm [2017] VCAT 1620

Harness Racing Victoria v Ross Graham (unreported, Racing Appeals and Disciplinary Board, 10 August 2017)

Jaensch v Coffey (1984) 155 CLR 549

Kavanagh v Racing Victoria Limited (No 2) (Review and

Regulation) [2018] VCAT 291

McDonough v Harness Racing Victoria [2008] VRAT 6

Morrisey v Queensland Racing Integrity Commission [2018] QCAT 161

New South Wales v Gillett [2012] NSWCA 83

RVL Stewards v Peter Moody (unreported, Victorian Racing Appeals and Disciplinary Board, 16 March 2016, penalty 17 March 2016)

Scott v Queensland Racing Integrity Commission (No 2) [2018] QCAT 301

Wallace v Queensland Racing [2007] QDC 168

Xuereb v Racing Victoria Limited (Review and Regulation) [2019] VCAT 473

APPEARANCES
& REPRESENTATION:

 

Applicant:

R J Anderson QC, instructed by Lander and Rogers Lawyers

Respondent:

J E Murdoch QC, instructed by O’Connor Ruddy and Garrett Lawyers

REASONS FOR DECISION

Background

  1. [1]
    The appellant, Queensland Racing Integrity Commission, appeals the decision of the Tribunal made on 3 September 2018 to suspend the trainers licence of the respondent, Rachel Leigh Scott, on conditions for a period of 3 months and to impose a fine of $6,000. The suspension commenced on 18 September 2018 and ended on 17 December 2018.[1] The fine has been paid. Ultimately, the application to review a decision was in respect of penalty only.
  2. [2]
    An appeal is of right on a question of law.[2] The grounds of appeal are that the penalty is manifestly inadequate and that the Tribunal applied wrong principles.
  3. [3]
    On 2 April 2016 the respondent, as an A Grade trainer under a licence issued by the appellant, presented the horse Nolonga Your Choice for a harness race at Redcliffe not free of a prohibited substance, namely cobalt, contrary to rule 190(1) of the Australian Harness Racing Rules (‘AHRR’). A breach of Rule 190 is a strict liability offence.[3] What is a prohibited substance is set out in rule 188A(1), while rule 188A(2)(k) provides that cobalt at or below 200 mcg/L in urine is excepted from the provisions of sub-rule 188A(1).[4] A pre-race urine sample taken from the horse was found on analysis to have a cobalt level of 280 to 284 mcg/L.[5]

The Tribunal’s decision at first instance

  1. [4]
    In the decision at first instance, it was found that the elevated cobalt level was caused by supplements given to the horse, causing cobalt to build up in the horse’s system, which was exacerbated by the intravenous administration of a further supplement two days prior to the race.[6]
  2. [5]
    In relation to penalty, the learned Member considered a number of previous decisions both in Queensland and interstate, including those involving cobalt. Reference was also made to the categorisation of cases noted in the decision of Wallace v Queensland Racing.[7] In that case, in relation to the issue of culpability, McGill DCJ referred to three categories of cases which, in ascending order, could justify a more severe penalty: cases where there is an innocent explanation for the presence of the prohibited substance, cases where there is no explanation for the elevated reading, and cases where there is an explanation and one that shows ‘moral blameworthiness’.[8]
  3. [6]
    In referring to those categories,[9] and in concluding that the conduct of Ms Scott involved carelessness,[10] later in the reasons referred to as ‘moderate carelessness’,[11] the learned Member concluded that this did not come within any of the three categories set out in Wallace. On that basis, the categories were reframed as follows:[12]

A No blameworthiness at all;

B  Carelessness;

C No credible explanation, so no indication about blameworthiness one way or the other;

D Moral blameworthiness shown.

  1. [7]
    It was added that category B cases could encompass varying degrees of carelessness, while category C cases ‘might ultimately spill into category D cases in circumstances when it was right to infer moral blameworthiness from the absence of a credible explanation for the elevated reading’.[13]
  2. [8]
    The learned Member next considered previous authorities as to penalty and concluded that a starting point for a category C or category D case is between 6 and 12 months disqualification.[14] It was then said that in the present case there were mitigating circumstances that would reduce the penalty, including a belief on the part of Ms Scott that the feeding and supplement regime was legitimate and normal for a racehorse and that she did not know that it would cause cobalt to reach that level.[15] On the other hand, it was noted that Ms Scott had been a trainer only since 2013 and that there were two prior offences committed three days apart in 2016 of administering medication on a race day prior to a race for which she was fined $4,000 for each offence. It was then concluded:[16]

In my view the level of blameworthiness here, which I would call moderate carelessness, ought to reduce the period of disqualification to about one-third of that which would be imposed in a category C or D case. On this basis, the period of time in the range becomes about 3 months.

  1. [9]
    Following further discussion of the personal circumstances of Ms Scott, in particular that she lived at a training facility with her husband who also is a licensed trainer, it was stated that if she were disqualified the effect of rule 259 of the AHRR, which lists what a disqualified person cannot do, would mean that she would have to leave home.[17] It was then concluded that a period of suspension was more appropriate and that the appropriate penalty was suspension was 3 months, on conditions, and a fine of $6,000.[18] The conditions were that while suspended Ms Scott could not nominate horses to race or start horses trained by her in races, but that she could care for her horses (that is, feed, water, groom and exercise them) during the period of suspension.[19] The fine was said to reflect the previous disciplinary history.[20]

Discussion

  1. [10]
    The approach adopted by the learned Member evidently is premised on the assumption that ‘carelessness’ is not encompassed within the three categories set out in Wallace and, further, that carelessness warrants a significantly lesser penalty than what in Wallace was called the ‘ordinary case’ where there is no explanation for the elevated reading and ‘therefore no indication as to whether or not there is any personal blameworthiness on the part of the trainer’.[21] It is noted that his Honour used the terms ‘personal blameworthiness’, ‘moral blameworthiness’ and ‘blameworthiness’ interchangeably.[22] His Honour considered that moral blameworthiness would justify a more severe penalty, while, at the other end of the spectrum, cases where there was a specific explanation that ‘did not involve any blameworthiness’ would give rise to a mitigating circumstance such that it may be appropriate to treat those cases more leniently than the ‘ordinary case’.
  2. [11]
    It is not made clear in the reasons of the learned Member why it was considered that a finding of carelessness should be treated much more leniently than cases where no such finding has been made or inference drawn; that is, where there is no finding one way or the other as to culpability. Nor is it made clear why ‘carelessness’ was considered not to be within the category of ‘moral blameworthiness’.
  3. [12]
    It seems that the term ‘moral blameworthiness’ was used in Wallace not as indicating any particular category of blame, but rather to draw a distinction between cases where on the evidence blame is either present or absent and cases where the evidence is such that a firm conclusion as to blame cannot be drawn one way or the other. In that sense, the term ‘moral blameworthiness’ can be understood as involving a choice to engage in conduct that leads to reasonably foreseeable outcomes that fall below accepted norms and for which the apportionment of blame is appropriate. In Wallace, the term ‘personal blameworthiness’ was also used. In general usage, the nature and degree of ‘moral’ or ‘personal’ blameworthiness can vary enormously and could include concepts such as intention, recklessness, negligence or carelessness. It is noted that in Donoghue v Stevenson, Lord Atkin stated that ‘liability for negligence … is no doubt based on a general public sentiment of moral wrongdoing for which the offender must pay’.[23] See also Jaensch v Coffey,[24] Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’.[25] Where the term moral blameworthiness is used in that sense it can serve to distinguish cases where blame is apportioned regardless of any personal wrongdoing. For example, in Baggs v University of Sydney Union,[26] the NSW Court of Appeal stated:

There will be many cases where the discoverability of a cause of action will have little to do with moral blameworthiness in the ordinary meaning of that word. A case where a defendant is liable pursuant to a non-delegable duty of care is one example where this could be said to be the case.

  1. [13]
    In our view, creating an additional category of ‘carelessness’ and assigning to it a lesser degree of culpability than circumstances where there is no explanation for the outcome, serves to confuse the picture. Within the potentially broad category of moral or personal blameworthiness there is capacity to differentiate between the degrees of blame and at the same time allow for the distinction drawn by McGill DCJ from the other two categories. While there are obvious differences between the categories set out in Wallace, it is also evident that at times the lines will become blurred. As noted in Cole v Harness Racing Victoria (Review and Regulation),[27] categories two and three (the ‘ordinary case’ and cases of moral or personal blameworthiness) ‘may or may not end up being similar … every case depending on its own individual facts’.
  2. [14]
    In the present case, the learned Member settled on a starting point of 9 months disqualification, midway between the suggested starting point of 6 to 12 months disqualification,[28] before applying the discount to one third of that which would be imposed in a category C or D case and settling on a three months suspension as well as the fine.[29]  The reasons for preferring suspension over the more burdensome penalty of disqualification have been noted above.
  3. [15]
    The adoption of the approach as outlined above has, in our view, led to the imposition of a penalty that is manifestly inadequate. Accordingly, the Tribunal on appeal must determine the appropriate penalty. The finding of ‘moderate carelessness’ was based on a finding of a lack of appropriate care on the part of Ms Scott in managing the feeding and supplement regime for the horse. It was found that she decided and managed the feeding regime and was also responsible for the giving of intravenous supplements from time to time, all of which contained cobalt.[30] It was found that Ms Scott was aware that the supplements contained cobalt, was aware of the concerns about cobalt, should have been aware that the permitted level could be exceeded, did not conduct her own tests of urine samples, and in circumstances where she did not have any relevant training or expertise, and despite the severe penalties, did not obtain veterinary advice.[31] It was also found that she should have been aware that that there was no need to give the horse any further cobalt, other than that arising naturally in feed.[32]
  4. [16]
    On the other hand, it was found that the cobalt level was a product of a build-up of cobalt in the horse’s system,[33] exacerbated by the administration of ‘VAM’ two days prior to the race,[34] and that no warning of the potential for such a build-up appeared on the relevant feed packaging.[35] It was also found that while it was not clear whether the feeding regime followed industry protocols, Ms Scott believed that it did.[36] It was further held that while no credit could be given for a plea of guilty, a review of the issues on substantiation demonstrated that legitimate issues had been raised such that Ms Scott should not be penalised for not entering a plea of guilty.[37]
  5. [17]
    Consideration was given to the principles underlying the imposition of a penalty, including personal and general deterrence and the protective purpose of legislation of this nature.[38] Reference was also made to the question of whether cobalt is performance enhancing and whether it is harmful to horses,[39] which is relevant to penalty.[40] It was concluded that while there were differing views expressed in this regard by the expert witnesses, it remained that there is a perception in the industry that cobalt is performance enhancing and that this should be taken into account.[41]
  6. [18]
    Reference was also made to a number of prior decisions in relation to penalty,[42] which led to the conclusion as to the starting point of between 6 and 12 months disqualification for a category C or D case.[43] An overview of a number of the more recent cobalt cases, including those referred to in the Tribunal at first instance in the present case, is set out in the recent decision in Graham v Queensland Racing and Integrity Commission.[44] In summary, those decisions and the penalties imposed were: Morrisey v Queensland Racing Integrity Commission (suspension for 9 months suspended after 5 months for a period of 12 months);[45] Weeks v Queensland Racing Integrity Commission (disqualification for 6 months followed by suspension for a further period of 9 months, with that period of suspension being fully suspended);[46] Hooper v Queensland Racing Integrity Commission (disqualification for 12 months for each of three offences, three months of each offence to be served concurrently, giving an aggregate disqualification period of 30 months);[47] RVL Stewards v Peter Moody (suspension for 12 months, of which 6 months was suspended);[48] Harness Racing Victoria v Ross Graham (suspension for 15 months);[49] Demmler v Harness Racing Victoria (suspension of driver and trainer licences for 12 months);[50] Cole v Harness Racing Victoria (suspension of driver and trainer licences for 12 months);[51] Harness Racing Victoria v Chisholm (suspension for 12 months);[52] Xuereb v Racing Victoria Limited (Review and Regulation) (disqualification for 6 months).[53] In Graham v Queensland Racing and Integrity Commission,[54] a penalty of suspension of Mr Graham’s driver and trainer licences for 12 months was imposed.
  7. [19]
    As noted, relevant details in relation to each of those cases are set out in the decision in Graham. The latter case involved presentation of a horse with cobalt levels in excess of the allowable threshold; greater than 200mcg/L to greater than 400 mcg/L. In circumstances where there was no allegation of any intention on the part of Mr Graham to present the horse not free of a prohibited substance or to gain a particular benefit, it was nevertheless found that he had displayed a considerable degree of carelessness in the management of the horse leading to the race in question. First, organic cobalt in the form of B12 in the supplement Tripart was administered at three times the recommended dose, albeit on the recommendation of his veterinarian. It was administered on the day before the race, not on the advice of his veterinarian and in circumstances where it would not have been recommended by him. Second, there was no evident reason to use Tripart the day before the race given that the rationale for using it, the resolution of muscle issues, no longer applied. Third, in circumstances where Mr Graham knew that cobalt was a significant issue in the industry and, to some extent, knew that his feeding and supplement regime contained cobalt he did not seek any advice in relation to that regime or seek to check the cobalt levels in his horses. He pleaded not guilty, was a successful trainer of over 30 years and had one prior conviction in 2008 for which he was fined $3,000 and in relation to which he pleaded guilty.
  8. [20]
    As noted in Graham,[55] while reference has been made in some of the cases to a ‘usual’ penalty of disqualification,[56] that approach is not apparent from the more recent cases referred to above.[57]  To the extent that there has been a shift in relation to penalties, this might in part be attributable to a change in understanding or uncertainty as to the impact of cobalt on the performance and welfare of horses.[58]
  9. [21]
    In our view, in light of the principles and precedents noted above, an appropriate penalty in the present case is one of suspension. As noted in Morrisey v Queensland Racing Integrity Commission,[59] while suspension does not have the broad impact of disqualification in terms of rule 259 AHRR,[60] it is a severe penalty. It deprives the person affected of that aspect of their livelihood for the period of suspension and by interrupting an enterprise it could have an ongoing impact even after the period of suspension has been served, including in relation to the blemish on their record.[61] While no two cases are precisely the same, there are relevant points of comparison between the circumstances of the present case and those in Cole v Harness Racing Victoria, Harness Racing Victoria v Chisholm, and Graham v Queensland Racing and Integrity Commission, noted above. In each of those cases a penalty of suspension for 12 months was imposed. 
  10. [22]
    We have reached the conclusion that the appropriate penalty is to suspend Rachel Leigh Scott from holding a trainers licence for a period of 9 months, commencing 2 weeks from the date of this order, in addition to the suspension of 3 months on conditions which commenced on 18 September 2018 and ended on 17 December 2018 following the decision of the Tribunal of 3 September 2018. The fine of $6,000 paid by Rachel Leigh Scott is to be repaid within 2 weeks of the date of this order.

 

Footnotes

[1]   An application to stay the decision of the Tribunal was refused: [2018] QCATA 195. In the reasons for refusing the application, the Tribunal noted that if the appeal is successful and Ms Scott has to undergo a further period of suspension or disqualification, the three month suspension will be taken into account and the penalty adjusted accordingly: [10].

[2]Queensland Civil and Administrative Tribunal Act, s 142.

[3]  Rule 190(4) AHRR.

[4]   The threshold was reduced to 100 mcg/L from 1 November 2016.

[5]   [2018] QCAT 301, [13].

[6]   Ibid [10]-[12], [17]-[18]. As to the cobalt levels in the supplements, see [15]-[16].

[7]   [2007] QDC 168.

[8]   Ibid [68]-[69]. See also McDonough v Harness Racing Victoria [2008] VRAT 6; Kavanagh v Racing Victoria Limited (No 2) (Review and Regulation) [2018] VCAT 291, [15]. In Cole v Harness Racing Victoria (Review and Regulation) [018] VCAT 1930, [22], it was suggested that categories two and three ‘may or may not end up being similar … every case depending on its own individual facts’.

[9]   [2018] QCAT 301, [46]-[50].

[10]   Ibid [47].

[11]   Ibid [93].

[12]   Ibid [48].

[13]   Ibid [49]-[50].

[14]   Ibid [78].

[15]   Ibid [79].

[16]   Ibid [93].

[17]   Ibid [94]-[95].

[18]   Ibid [100].

[19]   Ibid [97].

[20]   Ibid [99].

[21]   [2007] QDC 168, [69].

[22]   Ibid.

[23]   [1932] AC 562, 580.

[24]   (1984) 155 CLR 549, 607 (Deane J).

[25]   (1976) 136 CLR 529, 575 (Stephen J).

[26]   [2013] NSWCA 451, [13] citing New South Wales v Gillett [2012] NSWCA 83, [94].

[27]   [2018] VCAT 1930, [22].

[28]  [2018] QCAT 301, [78].

[29]   Ibid, [93].

[30]   Ibid, [10]-[12], [15]-[16], [30].

[31]   Ibid, [28]-[29], [43], [80]. See also at [27].

[32]   Ibid, [29], [80].

[33]   Ibid, [17]-[21].

[34]  Ibid, [18]. As to the content of VAM, see [16].

[35]   Ibid, [23].

[36]   Ibid, [26], [79].

[37]   Ibid [82], [89].

[38]   Ibid [31]-[35], [45], [73], [91]. As to the relevant principles, see also Graham v Queensland Racing Integrity Commission [2019] QCAT 198, [51]-[54].

[39]   Ibid [36]-[44].

[40]Harness Racing Victoria v Chisholm [2017] VCAT 1620, [26]; Graham v Queensland Racing Integrity Commission [2019] QCAT, [52].

[41]   [2018] QCAT 301, [41]-[43]. Reliance was placed on the decision in Demmler v Harness Racing Victoria [2017] VCAT 600.

[42]   [2018] QCAT 301, [51]-[72].

[43]   Ibid [78].

[44]   [2019] QCAT 198, [65].

[45]   [2018] QCAT 161.

[46]   [2017] QCAT 345.

[47]   [2017] QCAT 236.

[48]RVL Stewards v Peter Moody (unreported, Racing Appeals and Disciplinary Board, 16 March 2016, penalty 17 March 2016).

[49]Harness Racing Victoria v Ross Graham (unreported, Racing Appeals and Disciplinary Board, 10 August 2017).

[50]   [2017] VCAT 600.

[51]   [2018] VCAT 1930.

[52]   [2017] VCAT 1620.

[53]   [2019] VCAT 473.

[54]   [2019] QCAT 198.

[55]   Ibid [66].

[56]   See for example, Day v Harness Racing NSW [2014] NSWSC 1402, [18]; Harness Racing Victoria v Chisholm [2017] VCAT 1620, [65]; Morrisey v Queensland Racing Integrity Commission [2018] QCAT 161, [25]

[57]   Of course, as to whether disqualification or suspension, or some other penalty, is appropriate, each case will be determined on its own particular circumstances, including the degree of culpability and any prior record.

[58]    See, for example, the references to that change in Demmler v Harness Racing Victoria [2017] VCAT 600, [49], [74]; Cole v Harness Racing Victoria [2018] VCAT 1930, [56]-[59]; Xuereb v Racing Victoria Limited (Review and Regulation) [2019] VCAT 473, [64]. As to the earlier view, see for example Day v Harness Racing NSW [2014] NSWSC 1402, [20]. See also Graham v Queensland Racing Integrity Commission [2019] QCAT 198, [66].

[59]   [2018] QCAT 161, [61].

[60]   In addition to the prohibitions under rule 259 AHRR, by rule 256(5) a period of disqualification cannot be suspended. Though, by rule 259(6) the Controlling Body may make determinations waiving, varying of qualifying the prohibitions in rule 259.

[61]   See also Demmler v Harness Racing Victoria Racing Appeals and Disciplinary Board (Review and Regulation [2017] VCAT 600, [77]-[80].

Close

Editorial Notes

  • Published Case Name:

    Queensland Racing Integrity Commission v Scott

  • Shortened Case Name:

    Queensland Racing Integrity Commission v Scott

  • MNC:

    [2019] QCATA 121

  • Court:

    QCATA

  • Judge(s):

    Senior Member Aughterson, Member Kanowski

  • Date:

    08 Aug 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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