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QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
McGillivray v Queensland Racing Integrity Commission  QCAT 317
Matthew John Mcgillivray
Queensland Racing Integrity Commission
Occupational regulation matters
11 October 2019
18 February 2019
PROFESSIONS AND TRADES – LICENCING OR REGULATIONS OF OTHER PROFESSIONS, TRADES OR CALLING – OTHER PROFESSIONS, TRADES AND CALLINGS – thoroughbred racing – where applicant has been found guilty of a breach of rule 135(b) of the Australian Rules of Racing – where the charge is substantiated on review – whether the rider failed to follow instructions
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.
Racing Queensland Ltd v Cassidy  QCAT 31
P O’Sullivan, Solicitor
W Kelley for Queensland Racing Integrity Commission
REASONS FOR DECISION
- On 31 March 2018, Matthew McGillivray was found guilty following a stewards enquiry of a charge under rule 135(b) of the Australian Rules of Racing (AR135(b)) and was suspended for 4 weeks.
- Both the decision and penalty were confirmed after an internal review by Queensland Racing Integrity Commission (the Commission) on 3 May 2018. Mr McGillivray has applied to the Tribunal for a review of that internal review decision.
- AR135(b) states:
The rider of every horse shall take all reasonable and permissible measures throughout the race to ensure that his horse is given full opportunity to win or to obtain the best possible place in the field.
- The charge arose from Mr McGillivray’s ride of the horse Mr Epic in race 8, and open handicap over 1350m at Doomben Racecourse on 31 March 2018.
- In the stewards report the offence was particularised as “after easing Mr Epic near the 1100m mark to find cover and comply with instructions he then rode forward when racing 5 wide which in the opinion of the stewards was unreasonable, and by that action failed to give Mr Epic the best possible place in the field”.
- It is the objective of the Tribunal in conducting the review to arrive at the correct and preferable decision. The review is by way of a fresh hearing on the merits with the Tribunal standing in the shoes of the decision maker.
- The meaning of AR135(b) has been considered in a number of previous decisions. Each of the parties has referred me to a number of them and their submissions suggest there is no significant disagreement between them as to the law but rather its application to the facts in this case.
- In written submissions, the Commission put forward the observations of Judge Goran in Honan:
- (a)The rule does not permit the mere substitution of the stewards view as to how a particular horse should have been ridden for the view of the rider;
- (b)The rule does not seek to punish a mere error of judgement during the race on the part of the rider;
- (c)The rule attempts to ensure not merely that the horse has a winning chance in a race but that, assuming an inability to win, it will still do the best it can in the circumstances; and
- (d)The rider’s conduct must be culpable in the sense that, objectively judged, it is found to be blameworthy.
- In Racing Queensland Ltd v Cassidy, Senior Member Oliver and Member Buxton stated:
However AR135(b) does not exist to punish a rider simply because he does not win, or does not achieve a place consistent with the trainers, bookkeepers, [sic] and betting publics expectations. Even a decision which appears poor with the benefit of hindsight will not offend the rule without more. What is needed to offend AR135(b) is the availability of a measure to improve the horses success in the race and an unreasonable failure to take that measure.
- The Tribunal went on to consider the factors relevant to a charge under AR135(b) by reference to the racing appeal tribunal decision in Radecker, Ms v Queensland Racing as including:
- (a)The seniority and any experience of the jockey;
- (b)The pressure under which the jockey was riding in the particular race; and
- (c)Any practical necessity for the jockey to make a sudden decision between alternative courses of action.
- Mr McGillivrays conduct and decision making during the race must be scrutinized by the Tribunal to determine objectively whether he has breached the standard of care imposed on him by AR135(b) having regard to all the evidence before it, including the evidence and opinion of the stewards and the witnesses called by both parties at the hearing.
- It is uncontroversial that:
- (a)Mr Epic, ridden by Mr McGillivray, started the race from the outside barrier, barrier 11;
- (b)At the 1100m mark, having linked up with the course proper from the 1350m shute, there were 5 horses across the track at the lead, one of which subsequently eased out and sought cover behind the leaders;
- (c)Mr Epic maintained its wide line and continued to ride forward into the first turn before crossing to the rails at the 600m mark;
- (d)By this stage, Mr Epic was a spent force and tired quickly to finish 2nd last.
- The internal reviewer concluded that ‘the Applicants actions in not capitalizing on the clear opportunity that existed to obtain cover behind Lucky Black, which was available for an extended period, was more than a mere error of judgement or a poor ride considering the context of the race, the riding instructions and the Applicant’s level of experience’.
- It is submitted by the Commission that the evidence, and in particular the race footage and evidence of Mr Murrihy, shows that for 200m after the 1100m mark it was open to Mr McGillivray to “direct Mr Epic inwards and take up a position outside Pelethronius and be 3 wide with cover on the back of Magnajoy” rather than Lucky Black as the internal review decision maker has found.
- Mr McGillivray says that his decision not to seek cover at the 1100m mark, although a poor one, was not culpable because of the following factors:
- (a)He perceived from his previous rides that day (this was the 2nd last race) and from viewing replays of other races that the track exhibited a clear bias to on pace and near the rail which favoured going forward and pressing on to the lead;
- (b)He believed Mr Epic to be a front runner;
- (c)Between the 1100m and 1000m marks he could not have sought cover behind the leaders as he was never 2 lengths clear of Pelethronius and could not do so safely;
- (d)If he had done so he worried that, at best, he would have been 3 to 4 wide which he described in oral evidence as an impossible position or “death”;
- (e)Between the 1100m and 1000m marks he had the horse Lucky Black in front of him which he knew from previous rides to be a leader over similar distances, being ridden aggressively, he thought to press for the lead;
- (f)He made the decision to follow Lucky Black and once committed could not seek cover even when it became obvious that Lucky Black could not take the lead.
- Each party relied on the evidence of one expert witness. Nicholas Hall, a retired jockey, was called by Mr McGillivray. He provided a witness statement and gave oral evidence speaking to the race footage and was cross-examined by the Commission.
- Ray Murrihy, self-described as an “integrity consultant providing expert services to government, racing and sporting bodies”, has some 48 years of experience as a stipendiary steward throughout Australia and internationally. He provided an affidavit and also gave oral evidence speaking to the race footage and was cross-examined.
- Mr Murrihy’s affidavit has been prepared effectively as a review on the papers of the stewards’ decision and the internal review decision on the basis of his experience and expertise as the maker of decisions of this nature and in written submissions by the Commission I am urged to accept his determination on that basis.
- The purpose of expert evidence is to assist the Tribunal to make the correct and preferable decision, not to make that decision on its behalf before the hearing is conducted.
- I am critical of Mr McGillivray’s material which is confined to his application for review and his application for internal review and the brief statement which accompanied it, as well as transcripts of his various responses to the stewards. I found the oral evidence, both in chief talking to the race footage and in cross-examination, far more illuminating than the written material. Significantly, Mr Murrihy gave evidence before Mr McGillivray and accordingly made no comment in relation to that oral evidence.
- While in his affidavit Mr Murrihy did not comment on Mr McGillivray’s evidence that he attempted to follow Lucky Black to the lead and Mr Hall’s apparent support of that decision in his witness statement, Mr Murrihy was dismissive of these in cross-examination saying that, in effect, he didn’t think that Mr McGillivray was attempting to follow Lucky Black.
- Nicholas Hall is a retired jockey. During his career he rode “about 741 winners including 9 group 1 races”.
- His witness statement was made after consideration of the stewards’ report, the transcript of the stewards’ enquiry, the internal review decision and the race footage. It precedes Mr Murrihy’s statement.
- Mr Murrihy had read a copy of Mr Hall’s brief witness statement but, apart from disagreement on a point of law, makes no comment on his view of events.
- Speaking to the race footage, Mr Hall said that at the 1100m mark Mr McGillivray looks inside but in his view was not sufficiently clear to safely obtain cover. The only move he could safely make would place him 6 wide outside Jeff Lloyd (the rider of Pelethronius) which had no benefit.
- At about the 1050m mark, Mr Lloyd eases Pelethronius and takes cover 3 wide. Mr Hall agreed with Mr McGillivray that to ease Mr Epic in beside Pelethronius would leave him 4 wide and that was not a good position to be in.
- At the 1000m mark, Mr McGillivray had 3 options according to Mr Hall:
- (a)Moving 4 wide beside Pelethronius;
- (b)Stay where he was; or
- (c)Move outside Lucky black on the assumption that it would take the lead.
- While acknowledging that the 3rd of those, which Mr McGillivray in fact adopted, was the wrong decision he said that in the circumstances he would probably have done the same thing.
- He agreed that in his career in making a decision of that kind he took into account the characteristics and attributes of other horses in the race which were known to him.
- When asked in examination-in-chief what part trainers instructions play, Mr Hall said they “play a part until they don’t play a part.”, that they should be followed until they don’t align with circumstances of the race. “It is the ultimate responsibility of the jockey to judge the circumstances of each race as the race unfolds”.
- Both the stewards and the internal review decision maker appear to have placed significant weight on Mr McGillivray’s apparent disregard of riding instructions given by the trainer. Mr Murrihy also considered in his affidavit and oral evidence that Mr McGillivray did not follow instructions.
- I do not agree that the conclusion Mr McGillivray did not follow instructions can be safely drawn from the evidence. On the first day of the stewards’ enquiry the only exchange in relation to riding instructions is as follows;
Mr Aurisch: What did Mr Edmund say to you?
Jockey McGillivray: He probably said like if – you know “bounce him out.” He can miss the kick a bit. Try to be a bit aggressive on him. Try to put him in into the race and if he gets beaten by 3 lengths beautiful. As long as he is running home. But because he – he felt really well underneath me and I just saw an advantage there in front of me and that’s why I took it. Yeah but the tactics were to sit and maybe -
- It is then indicated that the trainer, Mr Toby Edmunds, was not at the track during the meeting but was represented by his son, Mr Trent Edmunds, and the inquiry is adjourned to allow the evidence from “Mr Edmunds Junior or Senior” to be taken.
- At the resumed inquiry, Mr Toby Edmunds (Edmunds Senior) gave evidence by telephone that his instructions were delivered to Mr McGillivray by his son Trent immediately prior to the race.
- While Mr Toby Edmunds said “we don’t want to see her out wide if we can. It’s always our preference to try and find cover somewhere”, he does not say that either he or his son in his place gave those instructions to Mr McGillivray.
- In fact he goes on to say;
I’m not say – I wouldn’t instruct Matt to go looking for cover. If – you know from the barrier it was a bit awkward for Matt, and most times we leave it to our riders if only – if they can get out into a spot somewhere and they are comfortable that’s – that’s what we like
- There is no evidence from Mr Trent Edmunds before the stewards or this Tribunal as to what part, if any, of those rather equivocal instructions were relayed by him to Mr McGillivray.
- In oral evidence Mr McGillivray says Mr Trent Edmund’s instructions were briefer and to the effect: jump him out, be positive and if he is leading so be it, which is effectively his response to the stewards.
- I am unable to see how the stewards or the internal review decision maker or Mr Murrihy can conclude that the instructions given to Mr McGillivray were “to be positive out of the barriers and try and find cover”.
- As to the suggestion that the track exhibited a bias to on pace and near the rail, Mr Murrihy says as a result of race 8, where the winner and place getters came from the back of the field, suggests otherwise. The internal review came to a similar conclusion. Mr McGillivray’s evidence is that he had ridden in some of the 7 preceding races and viewed replays of them. His perception is based on those preceding races. It may or may not be correct, but the result of one race does not prove that it is now. In any event, Mr Murrihy says bias either real or perceived, would not excuse the additional ground covered.
- I am satisfied on considering all of the evidence that Mr McGillivray reasonably believed;
- (a)That based on his earlier rides and views of replays of earlier races that there was a track bias to on pace and near the rail;
- (b)That he could not, at the 1100m mark, safely ease in behind the leaders;
- (c)That to ease into a position 4 wide beside Pelethronius was in his view a poor position;
- (d)That the horse Lucky Black, that he had previously ridden, was a leader, was being ridden aggressively with a view to leading provided him an option to take a position outside it and have it lead Mr Epic across to a position one outside the leader.
- In those circumstances, I am not satisfied that the Commission has established, to the requisite standard, that Mr McGillivray breached AR135(b) in his manner of riding Mr Epic.
 Section 21 (2) material page 28.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.
 (1983) racing appeal reports 11-12, Respondents outline of submissions paragraph 46.
  QCAT 31, .
 (2008) QRAT.
 Ibid, ; see also the similar comments of Tef Hughes AC referred to in the Respondents outline of submissions at paragraph 47.
 Internal review decision page 6.
 The Respondents outline of submissions paragraph 8.
 Affidavit of Ray Murrihy paragraph 1.
 Witness statement of Nicholas Hall paragraph 3.
 Witness statement of Nicholas Hall paragraph 11.
 Stewards report bundle of documents section 21(2) documents page 28.
 Internal review decision page 6.
 Affidavit of Ray Murrihy paragraph 10.
 Section 21(2) documents page 4 transcript lines 8.4 to 8.9.
 Section 21(2) material page 4 transcript lines 8.38.
 Section 21(2) documents pages 45 and 46.
 Section 21(2) documents transcript page 9 lines 10 to 15.
 Section 21(2) transcript page 10 lines 1 to 5
- Published Case Name:
McGillivray v Queensland Racing Integrity Commission
- Shortened Case Name:
McGillivray v Queensland Racing Integrity Commission
 QCAT 317
11 Oct 2019