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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
McGillivray v Queensland Racing Integrity Commission  QCAT 298
queensland racing integrity commision
Occupational regulation matters
27 September 2019
PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – thoroughbred racing – jockey – where horse checked following another jockey taking a run between that horse and another horse – whether action of other riders meant that no one jockey was culpable –whether jockey was careless in making decision to take run
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 21, s 24
Racing Integrity Act 2016 (Qld), s 242, s 243, s 246
Kehl v Board of Professional Engineers  QCATA 58
APPEARANCES & REPRESENTATION:
M Tutt, partner at WH Tutt Solicitors
A Turner, in-house lawyer for the Queensland Racing Integrity Commission
REASONS FOR DECISION
- Mr McGillivray, at that time an apprentice jockey, was the rider of SNOW FIELDS in race 6 at the Sunshine Coast Turf Club on 9 August 2017. He was found guilty following a stewards inquiry of a charge of careless riding under Australian Rules of Racing (AR.) 137(a) – ‘Any rider may be penalised if, in the opinion of the stewards, he is guilty of careless, reckless, improper or foul riding, following a stewards’ inquiry.’
- The stewards’ report stated:
Apprentice M. McGillivray, rider of SNOW FIELDS, was found guilty of a charge of careless riding, in that after being held up at the heels of I CAN’T SEE YOU, he directed his mount to the inside of that runner where there was insufficient room, resulting in a tightening to SHEZA HOTTI, being forced in on to the hind quarters of BALABINA, turning that horse out, further tightening the running of SHEZA HOTTI, resulting in J. Taylor having to check SHEZA HOTTI at that stage near the 100m. Apprentice McGillivray was suspended from riding in races for a period of 9 days, to commence at midnight, 18 August and to expire at midnight, 27 August.
- The Tribunal’s role in the review of the decision is to stand in the shoes of the Commission, deciding the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the enabling Act and exercising the functions of the decision maker, and to make the correct and preferable decision after hearing the review by way of a fresh hearing on the merits. The Tribunal must decide the review by way of a fresh hearing on the merits. It is not necessary to establish any error in either the process or reasoning of the Commission that led to the decision and there is no presumption that the reviewable decision was correct.
- The role of the Commission is to use its best endeavours to assist the Tribunal to make its decision. This includes providing the Tribunal with a statement of reasons for the decision and a copy of any document or thing relevant to the decision.
- The Commission filed copies of the Stewards report, the application for an internal review, the internal review decision with an extract from the racebook, a copy of AR. 137(a), video footage of the race, and an audio file of the Stewards’ Inquiry. An attempt was made by the Commission’s representative to bring the Stewards Inquiry audio file into evidence at the hearing. I note that there had not been any attempt to refer to specific time points on the audio file in submissions to the Tribunal and I determined not to admit the audio file as evidence in the proceeding.
- Evidence was given for Mr McGillivray at the hearing by Mr Terrence Lucas, a retired jockey and an affidavit was also filed setting up out his evidence. Mr James Williamson, senior stipendiary steward provided evidence for the Commission and an affidavit was also filed setting out his evidence.
- Mr Lucas, had been a jockey for 40 years and ridden in excess of 1600 winners. It was his opinion from viewing the video footage that:
- (a)At approximately the 200m mark there are the 4 horses racing in proximity to each other.
- (b)Apprentice Sewell (BALABINA) is on the inside, Jockey Taylor (SHEZA HOTTI) is outside of him, Mr McGillivray is behind Taylor (SHEZA HOTTI) and Michael Cahill (I CAN’T SEE WHO) is racing to the outside.
- (c)He observed that Mr McGillivray shifts his mount around the heels of Jason Taylor’s mount (SHEZA HOTTI).
- (d)Mr McGillivray is in a position where he has a run to the inside of Michael Chill’s mount (I CAN’T SEE WHO) and to the outside of Jason Taylor (SHEZA HOTTI).
- (e)He observed that Mr McGillivray is riding his mount forward and at the same time Michael Cahill’s mount (I CAN”T SEE WHO) shifts in slightly restricting Mr McGillivray’s running room.
- (f)Also at this point Apprentice Sewell’s mount (BALABINA) shifts outward making contact with Jason Taylor’s horses’ (SHEZA HOTTI) hindquarters which shifts apprentice Sewell’s mount (BALABINA) out further.
- (g)The combination of the inside horse (apprentice Sewell)(BALABINA) shifting outwards and the outside horse (Michael Cahill) (I CAN’T SEE WHO) shifting inwards creates the restricted racing room which resulted in Jason Taylor checking his mount (SHEZA HOTTI) and losing ground.
- Mr Lucas concluded that the interference caused to Jason Taylor is not the cause of Mr McGillivray solely and there were other contributing factors which in his view render Mr McGillivray not culpable of a charge of careless riding.
- Mr Lucas stated at the hearing that there was a run which presented itself between Cahill and Taylor of 11/2 width. That Mr McGillivray had shifted around the heels of Taylor and into the gap. Then Cahill shifts in and Sewell shifts out. Which forced Taylor to make contact with Mr McGillivray and check his mount. That that Taylor had suffered interference due to contributing factors and it not unreasonable to for Mr McGillivray to be found guilty of causing interference.
- Mr Williamson stated in his affidavit that he was the Chairman of stewards on the day of the race and he had convened a steward’s inquiry following the race. His observations of the race were that:
- (a)When unable to secure clear racing room behind SHEZA HOTTI and BALABINA, Mr McGillivray directed SNOW FIEALDS to the outside of those runners when approximately 200 metres from the finish; and
- (b)After racing behind I CAN’T SEE WHO, Mr McGillivray directed SNOW FIELDS to the inside of I CAN’T SEE WHO and to the outside of SHEZA HOTTI, forcing that horse to make contact with BALABINA and as a result of this tightening jockey Taylor was obliged to check SHEZA HOTTI.
- Mr Williamson stated at the hearing that Mr McGillivray was finishing more strongly than Taylor (SHEZA HOTTI) and Sewell (BALABINA). He believes that when initially shifting there was a run however that run closes and there was a period of five strides in which Mr McGillivray had to decide to force the run or remain behind Cahill. He gained ground on Cahill and the room between Cahill and Taylor closes. Mr McGillivray then directs in front close to Taylor and moves in which causes Taylor’s mount to make contact with Sewell’s mount and take hold and check his mount. Mr McGillivray had to make choice to continue to seek opening and at that time Cahill and Sewell moving in towards Taylor.
- Mr Tutt submitted that there were other contributing factors in Mr Taylor having to check his mount being the shifting in of Mr Cahill and the shifting out of Mr Sewell which meant that the room between Mr Taylor and Mr Cahill closed which was Mr McGillivray’s run started and with Mr Sewell shifting in Mr Taylor then made contact with Mr Sewell’s mount. That this was not a situation where one jockey was culpable and that when Mr McGillivray went for his run there was one there and no-one can be blamed. That the Tribunal needs to be satisfied on the balance of probabilities and that there are too many variables and contributing factors. That having regard to Mr Lucas’s evidence there was a run a narrow run and no one jockey could be guilty of breach.
- Ms Turner submitted that by the time Mr McGillivray had started his run the gap between Mr Taylor and Mr Cahill had already closed having regard to Mr Williamson’s opinion. That Mr McGillivray behind Mr Cahill and knowing the run was not available and resulting in checking of Taylor so careless.
- At the time Mr McGillivray took his run he was riding behind three horses near the end of a race. Everyone agrees that various things occurred, the question is whether the actions of Mr McGillivray in taking a run at that time was careless. Mr Lucas says that there was a run available to Mr McGillivray and the movements of Mr Cahill and Mr Sewell also contributed to Mr Taylor having to check his mount. Mr Williamson’s opinion is that while there had been a run it had closed before Mr McGillivray took it and the inference is that the better course would have been not to try to take the run. The distinguishing factor is then whether there was a run available to Mr McGillivray at the time he took it. There is no doubt that Mr Cahill moving in and Mr Sewell moving out meant that there was insufficient space for Mr McGillivray to have a clear run. He can’t assume though that the behaviour of the horses in front of him are not going to vary and he should have calculated that possibility when assessing whether he could take the run safely. The run was narrow as stated by Mr Lucas. To enable Mr McGillivray to get through such a narrow run he would need to have been moving faster than it would take for the actions of the other riders to interfere with the run. He miscalculated and for that reason he was careless. When it was clear that the run was narrowing he should not have taken it. Therefore he is guilty of the breach of AR.137(a) in that he was careless.
- The internal review decision as to substantiation is confirmed.
- Having confirmed that the charge was substantiated I made directions for the parties to file submissions on penalty.
- The Commissions submissions note that the stewards deemed the interference caused by Mr McGillivray to be low range and that the standard low-range penalty imposed as a result of a breach of AR. 137(a) is a ten day suspension period. The Commission provided a table of penalties over the past six-months that is to 16 March 2019.
- The Commission provided 25 examples of suspension periods for breaches of AR.137(a) in the past 6 months. They ranged from an eight (8) day suspension at the low end to in one case a four (4) week suspension at the high end with most suspensions in the range of nine (9) to ten (10) days. The commission noted that Mr McGillivray had received 10 suspension for breaches of AR.137(a) over the period January 2016 to January 2018. I note that in the original submission from the Commission there were no details in regard to the circumstances in which the penalties were given. The Commission in further submissions set out details of the venue, jockey and date.
- The Commission noted that the factors taken into account by the stewards were:
- (a)Mr McGillivray’s disciplinary history;
- (b)The degree of carelessness;
- (c)The interference suffered;
- (d)Mr McGillivray’s not guilty plea; and
- (e)The penalty precedents for breaches of AR.137(a).
- The Commission also submitted that when exercising the discretion in regard to penalty the Tribunal acting in the shoes of the decision-maker should do so having regard to the objects of the RI Act, that is maintaining public confidence in the integrity of racing on which betting is lawful, ensuring the integrity of persons involving in such racing and the protecting the welfare of animals involved in such racing. That penalties are imposed as a deterrent to riders in an attempt to ensure the safety of riders by bringing disciplinary proceedings for this type of offence. The stewards further attempt to ensure that each horse is permitted an equal opportunity in the race. Further that it needs to be understood by Mr McGillivray and riders alike that careless riding is a significant offence and that riders are required to comply with the Australian Rules of Racing.
- The Commission submitted that Mr McGillivray had been given a discount in penalty of one (1) day from the standard low-range penalty imposed of ten (10) days due to his disciplinary history, the degree of careless and the interference suffered. It was noted that he had pleaded not guilty to the charge and was subsequently found guilty by the stewards, which decision was confirmed by the Tribunal. That in the circumstances set out above, no further discount should be afforded to Mr McGillivray and the penalty of a nine (9) suspension period is within the range applied to other riders subject to the same rule and therefore the suspension period of nine (9) days is the correct and preferable decision.
- It was submitted on behalf of Mr McGillivray on 23 March 2018 that it was unsatisfactory to assert that the penalty should be similar to other cases where there are no details of any particulars relating to these matter and it is simply not known whether there were contributing factors in these incidences or if they were single jockey incidents. That in regard to Mr McGillivray’s disciplinary history reference to disciplinary action against him post the incident are irrelevant to this matter. Further and significantly, it should be noted that Mr McGillivray either pleaded guilty or accepted the penalty imposed on those dates. It was further submitted that the interference suffered during the race in question on 9 August 2017 was a result of contributing factors from other riders therefore reducing culpability on the applicant and for this reason the penalty should be moderated accordingly. That Mr McGillivray’s good disciplinary history together with his seniority are mitigating factors to be considered. The competitive obligations riders bare to afford their amounts uninterrupted running in the home straight so as to give them every opportunity to win or to obtain the best possible place in the race must also be considered. It is submitted that the appropriate penalty is a severe reprimand.
- It was submitted for Mr McGillivray following the further submissions of the Commission that the Commission still had not provided relevant detail relating to these matters and it was not known for example whether there were contributing factors. They confirmed that the penalty should remain a reprimand. It was submitted that if there were to be a suspension then it should commence seven (7) days after the order as Mr McGillivray will have commitments to ride for a likely period of seven days.
- I understand Mr Tutt’s frustration with not having particulars of the comparative penalties being provided by the Commission. The Commissions role is to assist the Tribunal to make the correct and preferable decision. This requires the Commission to provide the Tribunal with the material it needs to be able to exercise its discretion. On the other hand Mr Tutt did not put together submissions on penalty which dealt with comparative cases in a way which would assist the Tribunal either. He helpfully though asked that the Tribunal give Mr McGillivray a 7 day period to organise his affairs. Mr Tutt submitted that the appropriate penalty was a severe reprimand. He did not provide any precedents to support this. While the material provided by the Commission lacked detail there was a clear range of penalty. Regard needs to be had to the factors to be considered including the conduct itself, the effect of the conduct on other participants in the race namely a horse needing to be checked, the objects of the legislation to ensure public confidence in the integrity of racing and the safety and welfare of the animals involved. Also, the safety of other riders needs to be taken into account.
- This is not a matter involving the integrity of racing, it is about safety and welfare because the actions of Mr McGillivray put other riders and their mounts at risk. There needs to be a clear message that risks should be well calculated to avoid the potential for safety issues and it is therefore appropriate that Mr McGillivray as an example to others and for his own benefit receive a period of suspension. I agree that it is a lower order breach and it should therefore be penalised on that basis. I consider that the penalty imposed by the stewards of a nine (9) day suspension which was confirmed by the internal review decision should be confirmed by the Tribunal and should commence seven (7) days after the date of this order.
- Published Case Name:
Matthew McGillivray v Queensland Racing Integrity Commission
- Shortened Case Name:
McGillivray v Queensland Racing Integrity Commission
 QCAT 298
27 Sep 2019