White v Queensland Racing Integrity Commission
[2020] QCAT 492
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- Unreported Judgment
- White v Queensland Racing Integrity Commission[2020] QCAT 492
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White v Queensland Racing Integrity Commission[2020] QCAT 492
White v Queensland Racing Integrity Commission[2020] QCAT 492
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | White v Queensland Racing Integrity Commission [2020] QCAT 492 |
PARTIES: | ZOE MAREE WHITE |
(applicant) | |
v | |
queensland racing integrity commission | |
(respondent) | |
APPLICATION NO/S: | OCR109-20 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 8 December 2020 |
HEARING DATE: | 17 November 2020 |
HEARD AT: | Brisbane |
DECISION OF: | Member Kent |
ORDERS: | IT IS THE DECISION OF THE TRIBUNAL, BY CONSENT:
|
CATCHWORDS: | OCCUPATIONAL REGULATION MATTERS – where the Applicant was charged with breaching Rule 232(b) of the Australian Rules of Racing by failing to comply with the Stewards’ direction – directions relate to COVID-19 restrictions – apprentice jockeys to remain and ride in the declared zone of their master – where the Applicant has applied to the Tribunal pursuant to s 246 of the Racing Integrity Act 2016 (Qld) for a review of the internal review decision of the Queensland Racing Integrity Commission regarding the penalty imposed. Racing Integrity Act 2016 (Qld), s 246 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20. s 133 Australian Rules of Racing, Rule 136, Rule 139, Rule 141, Rule 283 Drakeley v Queensland Racing Integrity Commission [2020] QCAT 359 Wood v Kenyon [2020] QCAT 119 |
APPEARANCES & REPRESENTATION: | |
Applicant: | L Collins, Lawyer |
Respondent: | M Black, Counsel instructed by W Kelly of QRIC |
REASONS FOR DECISION
Background
- [1]On 30 March 2020 Mr Paul Zimmermann, Senior Steward of the Queensland Racing Integrity Commission (QRIC), gave Ms White a direction to self-quarantine on and from 30 March 2020 for a period of 14 days. Ms White breached this direction by riding track work at Rockhampton on 1 April 2020.
- [2]The context for this direction being made is as follows - on 28 March 2020 Racing Queensland implemented race regions to help protect the industry from the COVID-19 pandemic. Queensland at that point was subject to a declaration of a public health emergency [declared 29 January 2020]. As part of Racing Queensland's response, it was determined that commencing on 11:59 pm on 29 March 2020 jockeys were only permitted to race in one of five designated regions. This appears to have been to restrict travel and to protect people within the industry, the wider community and to allow the industry to continue in a somewhat restricted form throughout the pandemic. Racing Queensland's policy was that jockeys who were apprentices and still under a training contract (as was Ms White at this date] were to be designated to the zone of the registered employer or master.
- [3]Ms White sought to nominate Rockhampton as her training location and not the location that her master was in. Ms White had been “on loan” to a master in Toowoomba, Ms Jackie Crompton, and her usual master Mr Beau Gorman is based in Ipswich. At 12:30 pm on 29 March 2020 Ms White arrived in Rockhampton. On 30 March 2020 Ms Crompton requested that the loan arrangements be cancelled and therefore Ms White’s apprenticeship reverted to Mr Gorman in Ipswich.
- [4]Mr Zimmermann spoke by telephone to Ms White, stating that the loan agreement with Ms Crompton had been cancelled and now her apprenticeship had reverted to her original master in Ipswich. He advised her that Racing Queensland would not be transferring her apprenticeship because there were only six weeks remaining of the period she needed to serve. He explained that anyone who was an apprentice and was still under a training contract had to go to the same zone of racing as their employer. In Mr Gorman’s case he trained in Ipswich (Metro South West Zone 2) so this was also Ms White’s relevant zone and not Rockhampton (Central Zone 6).
Direction
- [5]It was during this telephone call of 30 April 2020 that the applicant was issued with the direction by the steward saying that she had ridden trackwork at Rockhampton that morning (30 March 2020) and that she was now required to self-quarantine for 14 days in the Central Zone commencing at midnight 30 March 2020 and expiring 13 April 2020. After 13 April 2020 Ms White could return to her master’s zone in Ipswich. He also advised Ms White that there were matters that “we can't get around in the current climate” and that was she was to be taken off her riding engagements at Mackay on 31 March 2020.
Circumstances of breach of Direction
- [6]Ms White had indicated that she wanted to stay in Rockhampton. On 31 March 2020 she spoke with a Racing Queensland officer about the prospect of remaining in Rockhampton and getting her jockey's licence. The officer was apparently agreeable to that idea. Ms White asked about riding track work “until the issue was sorted or am I not allowed?”. The official told her it was up to the stewards and Ms White’s response was “sweet”. Ms White also contacted Mr Zimmermann via text message on 31 March 2020 to ask if she could ride track work. Mr Zimmermann's telephone showed him responding to her on 31 March 2020 “no Zoe you cannot ride track work”. The applicant denies having received the message.
- [7]On 1 April 2020 the applicant rode track work in Rockhampton. On 2 March 2020 three stewards conducted an inquiry into Ms White’s riding trackwork and her failing to comply with the direction to self-quarantine that had been issued to her on 30 March 2020. The stewards' panel on that date determined that Ms White should be disqualified for a period of six months. The applicant applied to the respondent for an internal review and the internal review on 23 April 2020 resulted in an amended penalty of a three-month disqualification. The applicant then applied to the Tribunal for a review of the decision.
- [8]The applicant served over five weeks of the disqualification from 2 April to 8 May and then the penalty was stayed pending the outcome of her appeal to the Tribunal.
- [9]Ms White has applied to the Tribunal to review the Decision pursuant to s 246 of the Racing Integrity Act 2016 (Qld) (RIA). Pursuant to ss 19 and 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) this review is a fresh hearing on the merits, and I have all the functions of the decision maker of the Decision. The charge that Ms White entered a plea of guilty to was “…you, Zoe White, as a licenced apprentice, failed to comply with the direction to self-quarantine given to you by Senior Steward, Mr Paul Zimmermann, on 30 March 2020, by attending and participating at trackwork at the Rockhampton Jockey Club on Wednesday, 1st of April 2020…”.[1] I accept that there is only one charge and not the characterisation of two employed by the internal review.
Ms White’s submissions
- [10]The applicant’s legal representative made the following submissions to the Tribunal:
- (a)the charge that his client had entered a guilty plea to should be viewed as a simple breach of a steward’s direction;
- (b)Ms White had not put anyone at risk as she had stayed in Rockhampton and intended to stay in Rockhampton therefore the penalty should not be considered in the context of being a breach of COVID-19 restrictions;
- (c)the Tribunal should take into account mitigating factors (the guilty plea, the honesty of the applicant in her dealings with QRIC, it being her first breach of a rule and it should be considered to be a failing to comply with a direction as opposed to a breach of quarantine in the context of COVID-19).
- [11]It was the applicant’s submission that her only source of income was from race riding. She now works in the state of South Australia. Her lawyer submitted that she had no other skills or trade to fall back upon and had financial commitments she needed to meet. Therefore, her economic situation would be adversely impacted if she was unable to work due to a disqualification. It was submitted that at the time of the offence Ms White had family commitments, her grandmother was ill, her father had lost his job and she had been expected to return to Rockhampton to assist with the family’s financial situation.
- [12]It was the submission of Ms White’s legal representative that COVID-19 restrictions should not cause an aggravated penalty to apply. There was no risk to health or safety according to the applicant’s lawyer and Ms White should only be treated as someone who failed to comply with a steward’s direction.
- [13]It was noted that disqualification is a very significant penalty and the applicant had already served five weeks of her disqualification and this should be considered in any penalty calculation. What had occurred was described as a simple offence unaffected by COVID-19 and therefore COVID-19 should not be considered as an aggravating factor. It was submitted that three months was too long of a period and that the breach did not affect anyone therefore it was a breach that did not warrant a severe penalty such as disqualification as her actions had not affected any party or caused anyone to become ill.
- [14]The applicant’s submissions on penalty were that the penalty should be set at the five weeks already served and that should be sufficient. Further, if the Tribunal failed to accept that submission and even took into account that this had occurred as a result of the context of COVID-19, it was submitted that the Tribunal should take into account her plea of guilty, her age, her other otherwise good record and her honest and forthright behaviour throughout the investigation and find that the three months’ disqualification should be set aside and five weeks’ disqualification served be deemed to be a sufficient penalty.
Queensland Racing Integrity Commission’s (QRIC) submissions
- [15]Mr Black, on behalf of QRIC, referred to the summary of facts in the respondent’s material filed on 15 September 2020 (paragraphs 18 to 43) setting out the relevant facts that were not in dispute.
- [16]Mr Black referred to all the provisions of section 283 of the Racing Rules which deals with penalties. These penalties range from disqualification which is seen as the top end of the spectrum of penalties through to other lesser penalties. It was the respondent’s submission that the first penalty had been six months, however that the three months as found by the internal review was the appropriate one. It was also submitted that the five weeks served between 2 April and 8 May 2020 should be considered.
- [17]In response to the applicant’s submission that the Tribunal should not consider the COVID-19 pandemic it was submitted that the Tribunal should most definitely take into account the relevance of the COVID-19 pandemic. Additionally, it was submitted that it is of importance that this direction made by the steward was in the context of COVID-19. Such a direction was designed to maintain the integrity of the industry. The racing industry had been impacted during the pandemic. It was in an attempt to continue racing in Queensland, so all those connected with the industry could continue to earn a living, that led Racing Queensland to set out the rules relating to zones and travel between those zones. This response was to maintain the confidence of the community and integrity of the entire industry.
- [18]It was accepted by the respondent that Ms White’s breach did not expose anyone to a risk of COVID-19. It was submitted that it was important to consider the timing of when the direction was given, which was on 30 March 2020, and this was at the height of the pandemic restrictions in Queensland. The purpose of the direction was relevant as it was to give effect to the arrangements that have been put in place to allow racing to continue in Queensland. These are arrangements that required Ms White to return to the zone that her master was in and prior to doing that she was required to enter into self-quarantine for a period of 14 days. She needed to complete these steps. Whether Ms White said she wanted to stay in Rockhampton was irrelevant to these protocols as the zone rules did not provide for an apprentice, as Ms White was at the time, to self-select a zone.
Case law
- [19]I was referred by both the applicant and respondent to several cases said to be relevant. Given the relative newness of this situation nothing exactly on point came to the attention of either side. The respondent referred the tribunal to a decision of Vander Sanden v Johnson.[2]
- [20]Other cases the respondent referred the tribunal to were Queensland Racing Integrity Commission v Gilroy[3] - this case dealt with a key consideration in determining a penalty with regard to a failure to comply with the steward’s direction, which was to maintain the integrity of the industry and to demonstrate as a whole and to demonstrate to participants and the public that behaviour which breaches the rules will not be tolerated.
- [21]The respondent in the submissions filed on 15 September 2020 (paragraphs 47 through 49) set out a number of cases that they considered to be relevant. The first three were set out in paragraph 47. These all dealt with New South Wales situations[4] that involved breaches of COVID-19 related regulations, e.g. a jockey embraced a stable hand after a win, this contact was in breach of the directions and the jockey was fined $2,000 and the stable hand $500. In another case a stable hand travelled from Victoria to New South Wales to attend a race meeting without quarantining; in this case a six month disqualification was considered to have been appropriate but given the particular circumstances, the guilty plea and personal circumstances, a four month disqualification was imposed. In Re Laura McCallum, Racing Appeal Panel (NSW) a licensee rode in Victoria and then in New South Wales without self-isolating for 14 days and lied to the stewards about having attended the track in Victoria. The charge was false or misleading evidence. The licensee said she could not afford the financial strain of self-isolating for 14 days. It was noted that her behaviour occurred in the context of very important protocols set in place to protect the sport from the worst consequences of the pandemic. On this appeal the disqualification for a period of four months was confirmed.
- [22]Paragraph 48 of the submissions dealt with other racing industry breaches of stewards’ directions;[5] these appeared to underline what was seen as the importance of obeying a steward’s direction. The penalties discussed ranged from periods of disqualification for 18 months, also six months and to a period of three months (having been reduced from four months for a plea of guilty). The most severe of the penalties related to a refusal to disclose the location of a horse to a steward and also removal of a horse at the same time.
- [23]At the other end of the spectrum of less serious penalties, I was referred to two decisions.[6] One of these concerned two apprentice jockeys who had failed to attend apprentice school on a particular date and they were suspended for one week. In the second case three trainers failed to present horses three hours prior to the scheduled start time. They were given a fine of $1,000 and half of that was suspended for a period of 12 months.
- [24]Ultimately the applicant made submissions that these cases were other either not on point or not relevant and reiterated that the tribunal should disregard the issue of COVID-19 restrictions and just deal with this as a person who did not comply with the steward’s direction. Ultimately I find that although these cases have some aspects of relevance to the current circumstances none of them of are totally on point in the facts and circumstances. I have adopted the reasoning found in paragraph 50 of the respondent’s submissions of 15 September 2020 where it is stated “that each case, of course, must be assessed on its own facts and circumstances”. Accordingly in coming to a decision in this case I have assessed the appropriate penalty on its own facts and circumstances as well as having regard to the relevant legislation and case law.
Discussion
Consideration of Covid 19 situation or not?
- [25]I have been urged by the applicant not to look at this matter in the light of COVID-19 restrictions and/or if I do, to consider that no-one became unwell due to Ms White’s failure to obey Mr Zimmermann’s direction of 30 March 2020. However I cannot accept this submission as the context of COVID-19 is relevant in that the direction was given as a result of restrictions put in place to protect the industry and indeed the wider community at the time of a largely unprecedented potential health crisis in Queensland. These rules relating to zoning and self-quarantine were central to the maintenance of the industry’s integrity and the public’s faith in the industry. It follows that I cannot ignore the context that this direction was given in.
- [26]The direction was made on the basis of safety for the racing industry. The reason zones and rules and other procedures had been put in place was to try to protect the industry. Without such precautions the racing industry may not have been allowed to keep going. The purpose of these precautions also appears to have been to protect the wider community as well. Why Ms White thought she could absent herself from compliance with quarantine is unclear apart from her own misguided belief that as she was staying in Rockhampton she would not need to quarantine. This is not a message that had been conveyed to her by Mr Zimmermann . In fact he had been told in the clearest terms what was required of her. Perhaps she could have continued to discuss this matter with the stewards over the coming period of days, however she did not even give the direction more than lip service by agreeing to it and then immediately breaching it.
Ms White’s decision to remain in Rockhampton
- [27]Ms White’s submissions were that she had no intention of going back to Ipswich or Brisbane to ride and that she had made the choice to remain in Rockhampton. This was not necessarily a choice available to her if she wished to continue working at that time. Zones were put in place for the protection of the industry of racing and the wider community. At the time the direction was given actions outside of the precautions requested may well have resulted in a very serious and real risk to public health as well as the racing industry. The fact that something adverse did not occur is a matter of good luck rather than good management on the part of Ms White. At that point of the unfolding of the pandemic’s trajectory Ms White was in no position to declare whether she may well have been exposed and therefore could not take matters into her own hands and make a decision that potentially affected others.
- [28]It may have been that in the fullness of time that she was able to remain in Rockhampton, however she did not give the relevant authorities the opportunity to decide that. She took matters into her own hands very quickly after she was told that she needed to self-quarantine. Even if she did not receive the text (as she has denied receiving it from Mr Zimmermann) saying “no Zoe you can't ride trackwork” it is still relevant that she was told to self-quarantine. Self-quarantine means she was to stay in her own premises away from others. I conclude that it is stretching reality too far to determine that one's understanding of that term could mean that you can mingle with other people at a racetrack when you are riding trackwork. This is a clear breach of self-quarantining conditions.
- [29]Whether or not Ms White would have been successful in gaining approval to stay in Rockhampton is a matter of speculation. What I needed to assess was what was the appropriate penalty for what Ms White did. I considered what the relevant circumstances were at the time that she disobeyed the steward’s direction. It is impossible to separate out the breach from the surrounding context of the direction being made based on restrictions in place in the industry due to COVID-19.
- [30]In coming to a conclusion about the appropriate penalty I have taken into account the applicant’s guilty plea at an early stage; the applicant’s age; her good record; her honesty in her dealing with the investigative phase of the process and that no serious consequences (in terms of a Covid 19 transmission) that have resulted from the applicant's breach of the steward’s direction. However, as previously mentioned in these reasons, I have formed the view that the fact no dire consequences flowed from the applicant’s failure to self-quarantine is more a matter of good luck than any responsible behaviour on the part of the applicant. The applicant did eventually obtain formal approval to stay in Rockhampton, the applicant had no history of failing to comply with stewards’ directions previously and I note that she depends on her work in the industry for an income. All of these considerations were urged upon me by the applicant as well as other mitigating factors including the forthright and honest manner in which the applicant had dealt with racing authorities throughout the entire process.
- [31]It was submitted at paragraph 53 of the material of the respondent[7] that the giving of a steward’s direction is a very serious matter and noncompliance is also very serious. The steward’s direction was given in a clear and precise form i.e. Ms White was told to self-quarantine for a period of 14 days commencing from midnight on the day of the direction, which was 30 March 2020. Ms White confirmed that she understood the direction. It is demonstrated from her text messages to and from Racing Queensland or with the stewards that she knew and understood that she needed to get the stewards’ permission to ride trackwork.
- [32]The applicant has made no submissions that amount to proof that Ms White found herself in exceptional and/or urgent circumstances that required her to ride track work on 1 April 2020. Even if I accept that the applicant genuinely needed to remain in Rockhampton for financial and family reasons it was still the case that on 1 April 2020 Ms White was an apprentice jockey and therefore she was subject to Racing Queensland's policy that apprentices were allocated to riding in their master’s zone. Apprentices were not given a choice in this. So even if Ms White asked for a different zone her master was in a separate area and she was attached to his area. Picking your own zone to ride in was not open to an apprentice such as Ms White. The fact she had been open about nominating a zone is of little relevance to my decision as she had no opportunity to nominate a zone other than her master’s. Her zone was dictated to her by the Racing Queensland policy and she failed to understand the significance of that. Due to the requirement for her to return to her master’s zone she was required to self-quarantine and the detail of the steward’s direction made this very clear to her.
- [33]Given this factual background I find that it is nonsensical to request that I completely ignore the circumstances of COVID-19 and rules put in place to combat the risk it presented. It was due to the threat of the COVID-19 pandemic that the zoning and self-quarantine rules were put in place. They were designed to try and protect individuals, the industry and the wider community. This core mission was the sole reason that the steward gave the direction to Ms White. I accept that Ms White did not in any way cause injury to the health of others. I reiterate this is not something that was within her control. These rules, which were in keeping with public health regulations, requirements and restrictions, were aimed at keeping the community safe and the racing industry functioning. The only way such precautions would be successful was if they were properly followed by the entire industry including Ms White.
- [34]I am not unsympathetic to the situation the applicant found herself in. However, her personal circumstances are no excuse for her failing to comply with the steward’s direction. It is unrealistic to say that the tribunal should not consider the COVID-19 situation; this is the very reason that the steward’s direction was given. At the time of the directions the risks caused by failing to comply with the steward’s direction were very serious. The rules that caused the steward to give the direction to Ms White were designed to protect the health and safety of the racing industry and its associated participants and ultimately the wider community as well.
- [35]In coming to a decision about the appropriate penalty I must consider specific deterrence to Ms White; general deterrence to the wider community of licensees and the need to uphold the good name and integrity of the industry. It is essential that directions that relate to matters of public health such as the COVID-19 pandemic must be complied with to the letter. It was not Ms White’s or any other licensee’s position to second guess these directions and make their own decisions about what was required for the safety of themselves, the industry and the wider community.
- [36]Having taken into account Ms White’s early plea I also consider the following: her honest and forthright demeanour with not only the stewards but also with the tribunal; her previously unblemished record in the area of following stewards’ directions; her youth; that she was under financial stress; that she had family commitments that required her to return to Rockhampton; that she was in the process of attempting to remain in Rockhampton and that no one was physically harmed as a result of her actions. These are all factors of mitigation.
- [37]Based on all of the factors discussed above I find that the appropriate course of action is to set aside the original review decision that Ms White is disqualified for three months . The original decision is replaced with a penalty of disqualification for three months on the following terms: the appellant continues to be disqualified for the remaining seven weeks of the three months’ disqualification.
- [38]Further under Australian Rule of Racing AR263(1) I authorise the appellant under AR263(1)(a) and (b) to enter on racecourses, training tracks or training premises, complexes or establishments, however only for the purposes contemplated by subrule AR263(j), that is, for preparation or training of horses.
- [39]On the 18 December 2020 the following orders were issued by the Tribunal:
- The decision of 23 April 2020 is set aside and, in its place, the following penalty is ordered:
- (a)That pursuant to Australian Rule of Racing AR283, the penalty imposed on the Applicant is disqualification of three (3) months in total of which five (5) weeks is taken to have been served and a period of seven (7) weeks remains to serve from the date of this decision.
- (b)Further under Australian Rule of Racing AR263(1) I authorise the appellant under AR263(1)(a) and (b) to enter on racecourses, training tracks or training premises, complexes or establishments, however only for the purposes contemplated by sub rule AR263(j), that is, for preparation or training of horses.
- [40]After this date both parties filed an application for a consent order and attached with that application a copy of a consent order. This application was made due to the what the parties described as the difficulty experienced by the applicant in having the South Australian Horse racing authorities interpret the Tribunal’s orders in the plain terms in which they appeared.
- [41]I have treated this application and attached consent order as a renewal application.
- [42]The jurisdiction for renewal arises under s 133 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act). It provides for a procedure to address the situation where final orders of the Tribunal either cannot be complied with, or there are problems in interpreting, implementing or enforcing them. Thus it is distinct from either an appeal or a re-opening. As referred to by Member Hughes in Wood v Kenyon:[8]
a party to a proceeding may apply to the Tribunal to renew a decision if there are problems with interpreting, implementing or enforcing the Tribunal’s final decision
- [43]On 18 January 2020 the Tribunal issued the following orders:
IT IS THE DECISION OF THE TRIBUNAL, BY CONSENT:
- That the decision of 23 April 2020 be set aside, and, in its place, the following penalty is ordered:
- (a)Pursuant to Australian Rule of Racing 283, the penalty imposed on Zoe Maree White is:
- (i)A disqualification of seven (7) weeks and four (4) days is taken to have been served by Zoe Maree White; and
- (ii)A four (4) week and three (3) day suspension of Zoe Maree White’s jockey licence to ride in races is to be served from the date of this renewed decision.
- (i)
- (a)
Footnotes
[1] Section 21 material, pp 33-34.
[2] [2020] WASC 331, [38] – [41].
[3] [2016] QCATA 146, [24].
[4] Re Tom Marquand (Stewards’ Report, Racing NSW, 15 April 2020); Re Kylie Taylor (Stewards’ Report, Racing NSW, 24 July 2020); Re Laura McCallum (Racing Appeal Panel, 20 August 2020).
[5] Re Stephen Godfrey (Stewards’ Report, Racing Qld, 9 September 2011); Re Michael Vardy (Stewards’ Report, Racing Qld, 21 August 2015); Re Daniel Riley (Stewards’ Report, Racing NSW, 11 December 2019); and Dean Slattery (Stewards’ Report, Thoroughbred Racing NT, 12 February 2020).
[6] Re Beau Dene Appo and Matthew Mcgillivray (Stewards’ Report, Racing Qld, 13 April 2016); Re Lauren Herne, Adrian Coombe and Steven Trega (Stewards’ Report, Racing Qld, 6 July 2019).
[7] The Respondent’s submissions dated 15 September 2020.
[8] [2020] QCAT 119 [9].