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Waltisbuhl v Queensland Racing Integrity Commission[2021] QCAT 132

Waltisbuhl v Queensland Racing Integrity Commission[2021] QCAT 132

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Waltisbuhl v Queensland Racing Integrity Commission [2021] QCAT 132

PARTIES:

WAYNE WALTISBUHL

(applicant)

v

QUEENSLAND RACING INTEGRITY COMMISSION

(respondent)

APPLICATION NO/S:

OCR276-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

21 April 2021

HEARING DATE:

6 April 2021

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

  1. The reconsidered decision of the Queensland Racing Integrity Commission of 2 December 2019 is confirmed.
  2. The twelve (12) month period of suspension imposed for Charges 3 and 5, respectively, is to be served concurrently, commencing fourteen (14) days from the date of this order.

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – where licensed trainer presented a horse for racing – where samples taken and prohibited substances detected ­– where licensed trainer charged for breach of Australian Harness Racing Rules Rule 190  – where penalty imposed – whether penalty correct and preferable

Australian Harness Racing Rules, r 190

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 23

Racing Integrity Act 2016 (Qld), s 246

Briginshaw v Briginshaw (1938) 60 CLR 336

Edmondson v Queensland All Codes Racing Industry Board [2016] QCAT 70

Graham v Queensland Racing Integrity Commission [2019] QCAT 198

Murray v Deputy Commissioner Stewart [2011] QCAT 583

Queensland Racing Integrity Commission v Gilroy [2016] QCATA 146.

Queensland Racing Integrity Commission v Kadniak [2017] QCATA 102

Queensland Racing Integrity Commission v Scott [2019] QCATA 121

Russell v Queensland Racing Integrity Commission [2020] QCAT 329

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

M Johnston, Principal Legal Officer, Queensland Racing Integrity Commission

 

REASONS FOR DECISION

  1. [1]
    Wayne Waltisbuhl presented the horse ‘Drunken Artist’ to four different races in 2019. On each occasion samples of urine were taken from the horse that returned a positive result for the detection of prohibited substances identified as Arsenic and Cobalt.
  2. [2]
    Mr Waltisbuhl as the licensed trainer at the time, was charged with six breaches of rule 190(1) of the Australian Harness Racing Rules (the Rules). Relevantly, rule 190(1) requires a horse to be presented for a race free of prohibited substances.
  3. [3]
    After holding a stewards’ inquiry on 11 June 2019, Mr Waltisbuhl was found guilty of six charges and fined $2,000.00 for two of the charges and disqualified for a period of 18 months to be served concurrently for two of the remaining charges.
  4. [4]
    Mr Waltisbuhl applied to the Queensland Racing Integrity Commission for an internal review of the stewards’ decision.
  5. [5]
    On 15 July 2019, the internal reviewer confirmed the stewards’ decision in respect of the charges and penalties (internal review decision).
  6. [6]
    On 8 August 2019, Mr Waltisbuhl applied to the Tribunal for a review of the internal review decision.[1]
  7. [7]
    The Commission was invited by the Tribunal to reconsider the internal review decision under s 23(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The Commission amended its decision in respect of penalty only. The relevant charges and penalty are set out below:[2]
  • Charge 1: Wayne Waltisbuhl, as the trainer of Drunken Artist did present the horse to a race at Redcliffe on 28 November 2018 when a urine sample was taken from Drunken Artist, upon analysis, was found to contain a prohibited substance, namely Arsenic in excess of the prescribed threshold. No penalty.
  • Charge 2: Wayne Waltisbuhl, as the trainer of Drunken Artist did present the horse to a race at Albion Park on 11 January 2019 when a urine sample was taken from Drunken Artist, upon analysis, was found to contain a prohibited substance, namely Arsenic in excess of the prescribed threshold. $2,000 fine.
  • Charge 3: Wayne Waltisbuhl, as the trainer of Drunken Artist did present the horse to a race at Albion Park on 11 January 2019 when a urine sample was taken from Drunken Artist, upon analysis, was found to contain a prohibited substance, namely Cobalt in excess of the prescribed threshold. 12 months suspension.
  • Charge 4: Wayne Waltisbuhl, as the trainer of Drunken Artist did present the horse to a race at Redcliffe on 17 January 2019 when a urine sample was taken from Drunken Artist, upon analysis, was found to contain a prohibited substance, namely Arsenic in excess of the prescribed threshold. $2,000 fine.
  • Charge 5: Wayne Waltisbuhl, as the trainer of Drunken Artist did present the horse to a race at Redcliffe on 17 January 2019 when a urine sample was taken from Drunken Artist, upon analysis, was found to contain a prohibited substance, namely Cobalt in excess of the prescribed threshold. 12 months suspension
  • Charge 6: Wayne Waltisbuhl, as the trainer of Drunken Artist did present the horse to a race at Redcliffe on 14 February 2019 when a urine sample was taken from Drunken Artist, upon analysis, was found to contain a prohibited substance, namely Arsenic in excess of the prescribed threshold. No penalty
  1. [8]
    It was decided that the 12-month suspension imposed for Charges 3 and 5 was to be served concurrently commencing at midnight 15 July 2019 and to end at midnight 15 July 2020.
  2. [9]
    The Commission’s amended decision was stayed by order of the Tribunal on 4 March 2020 pending the determination of the application to review.
  3. [10]
    At the oral hearing before this Tribunal, Mr Waltisbuhl confirmed that he does not seek to challenge the findings of all six charges of a breach of rule 190(1) of the Rules. Mr Waltisbuhl accepts that he presented the horse Drunken Artist to races with the presence of prohibited substances. Mr Waltisbuhl does, however, seek to challenge on review the penalty imposed in respect of Charges 2, 3, 4 and 5.
  4. [11]
    Mr Waltisbuhl contends that for Charges 2 and 4 and the presence of Arsenic, the horse was eating the wooden rails or Koppers logs that contain Arsenic. Mr Waltisbuhl contends that he requested the stewards take a sample of the wooden rails, but no sample was taken.
  5. [12]
    In respect of Charges 3 and 5 and the presentation of Cobalt, Mr Waltisbuhl submits that he only feeds the horse with a certain feed and he measured out the vitamins identified by him as ‘garage products’ or supplements for the animal as per the guidelines. Mr Waltisbuhl submits that the recommended measurements were obviously incorrect. Mr Waltisbuhl submits that he no longer feeds his horses these particular types of supplements. Further to that, Mr Waltisbuhl submits that training horses is his only livelihood, he has been working as a trainer for fifty years and has won multiple races.

The Tribunal’s role on review

  1. [13]
    The Tribunal on review has all of the functions of the decision-maker, in this case the Commission, and must hear and decide the review by way of a fresh hearing on the merits to arrive at the correct and preferable decision.[3]
  2. [14]
    In Queensland Racing Integrity Commission v Kadniak[4] the Appeal Tribunal observed and I agree that the stewards and appeal boards are comprised of trusted experts with relevant knowledge and experience of racing and are better placed than the Tribunal to decide the importance of central rules and when they are contravened and what the proportionate penalty for proven breaches should be.[5]
  3. [15]
    That said, the Tribunal does, however, have a duty to bring the public perspective to bear and is bound to make its own decision on the evidence before it.[6]
  4. [16]
    In assessing the evidence, the Tribunal applies the common law standard of proof being ‘on the balance of probabilities’.[7]
  5. [17]
    In this matter, Mr Waltisbuhl relies on material filed including, amongst other things, information about Koppers log and vitamin supplements, photographs and the treatment and feed regime for the horse Drunken Artist.[8] Mr Waltisbuhl says the material is relevant to the presentation charges and the presence of prohibited substances such as Arsenic and Cobalt.

What is the correct and preferable decision?

  1. [18]
    The Commission submits and I accept that the operation of rule 190 of the Rules is a strict liability offence.[9] Relevantly, rule 190(4) provides that an offence is committed regardless of the circumstances in which the prohibited substance came to be present in or on the horse.
  2. [19]
    The relevant factors guiding a penalty for a breach of the relevant rules in the racing industry, that I endorse in the present matter before me, were considered by the Appeal Tribunal in Queensland Racing Integrity Commission v Gilroy:[10]

…to maintain the integrity of the industry as a whole and to demonstrate to participants in the industry and the public, that behaviour which breaches the rules will not be tolerated… There is a need to deter participants in the industry from acting in a way that is in breach of the rules, which have been formulated to achieve the purposes which include: maintenance of public confidence, ensuring the integrity of all persons involved in the industry, and safeguarding the welfare of all animals involved in racing.[11]

  1. [20]
    In determining the appropriateness of any penalty to be imposed, I accept that consistency in penalties is desirable in cases involving similar facts.[12]
  2. [21]
    Here, Mr Waltisbuhl presented the horse Drunken Artist for races on four different occasions at which time samples were taken and analysed revealing the presence of Arsenic and Cobalt that was found to be in excess of the permissible levels.
  3. [22]
    In respect of the presence of Cobalt and presentation of the horse on 11 January 2019, a reading of over 200 micrograms per litre was returned; that is double the prescribed threshold amount of 100 micrograms per litre.[13] On 17 January 2019 the same horse returned a reading of 109 micrograms per litre which was a reading just over the prescribed threshold amount for Cobalt.[14]
  4. [23]
    In respect of the presence of Arsenic and the presentation of the horse on 11 January 2019, a reading of 0.6 micrograms per millilitre was returned; that is double the prescribed amount of 0.30 micrograms per millilitre in urine.[15] Further to that, on 17 January 2019, the same horse returned a reading of 0.6 micrograms per millilitre; that is double the prescribed amount for Arsenic.[16]
  5. [24]
    I accept the Commission’s oral submission made at the hearing that the detection of Cobalt in excess of the prescribed amount is serious. Rule 190(1) of the Rules specifically provides that a horse shall be presented for a race free of prohibited substances.
  6. [25]
    At the oral hearing before this Tribunal, Ms Johnston for the Commission submitted that the evidence demonstrates carelessness by Mr Waltisbuhl in the use of products given to the horse. Ms Johnston referred me to Mr Waltisbuhl’s explanation for the detection of the elevated level of Cobalt such as the feeding regime of the horse and the use of a number of products identified as supplements. Ms Johnston submitted that considering the varying degrees of products used, Mr Waltisbuhl has not taken into account the effects of accumulated amounts of Cobalt.
  7. [26]
    On the other hand, Mr Waltisbuhl submits that he was administering the various products to the horse according to directions.[17] Mr Waltisbuhl submits that the use of the ‘off the shelf’ products have led him to having positive swabs in the horse and he is no longer using the products.[18]
  8. [27]
    It is open for me to find on the evidence before me that Mr Waltisbuhl gave a number of supplements to the horse Drunken Artist as part of its feeding regime that contained Cobalt.[19] Mr Waltisbuhl has many years’ experience as a trainer and has presented many horses to races. Mr Waltisbuhl was clearly aware of the Rules and the requirement to present a horse to a race free of prohibited substances.
  9. [28]
    Mr Waltisbuhl has failed to convince me that he took all reasonable care in the administration of various products such as vitamins and supplements to the horse Drunken Artist that contain Cobalt in circumstances where the horse was to be presented to a race.
  10. [29]
    Mr Waltisbuhl does not seek to challenge the sample readings on review that show a presence of Cobalt that exceed permissible limits for the horse. Mr Waltisbuhl presented the horse Drunken Artist for racing on two occasions namely on 11 and 17 January 2019, respectively. On 11 January 2019, the presence of Cobalt was found to be double the prescribed amount.
  11. [30]
    I accept Ms Johnston’s oral submission made on behalf of the Commission at the hearing before me that Mr Waltisbhul’s administration of various products to the horse that contain Cobalt demonstrates a degree of carelessness in the use of products. I accept, as submitted by Ms Johnston, that Mr Waltisbuhl was aware of the prohibition in relation to the use of an excessive amount of Cobalt and he has used a number of products without taking appropriate steps to ensure the use does not exceed permissible limits.
  12. [31]
    In relation to the presence of Arsenic, Mr Waltisbuhl maintained at the oral hearing that he requested a sample of the wooden rails or Koppers logs be taken to establish that the horse Drunken Artist consumed Arsenic from the wooden rails or logs. Mr Waltisbuhl submitted at the oral hearing that he took the tags stapled to the end of the logs to show the stewards that the logs contained Arsenic and the label was simply disregarded by the stewards referring to it (the label) being thrown in the rubbish bin. Mr Waltisbuhl submitted that he has been a trainer for fifty years and has won multiple races. He said that he did, however, have a brief period where he was not training for approximately three years. Mr Waltisbuhl said that a suspension for twelve months would, as stated, ‘finish me’.
  13. [32]
    At the oral hearing, Ms Johnston for the Commission submitted that samples were taken from the wooden rails or logs on Mr Waltisbuhl’s property. Ms Johnston submitted that the samples show minimal presence of Arsenic levels so Mr Waltisbuhl’s explanation for the presence of Arsenic as found in the horse presented for the relevant races does not reflect the same levels of Arsenic detected in the timber. Further to that, Ms Johnston submitted that the evidence does not support Mr Waltisbuhl’s only explanation for the presence of Arsenic that was double the threshold amount.
  14. [33]
    At the oral hearing, Ms Johnston referred me to the evidence of Dr Karen Caldwell, Acting Manager of Veterinary Services Racing Science Centre, who was present at the hearing held before the stewards at first instance and gave evidence in regards to the ingestion of ‘CCA-treated’ meaning ‘copper chrome arsenate treated’ products. Relevantly, Dr Caldwell referred to studies completed by the University of Melbourne in relation to the amount of treated products that needs to be ingested to raise the levels of Arsenic above the permitted threshold. Dr Caldwell said that the results of the study and the pattern of excretion of Arsenic did not suggest an ongoing increase in levels that were then released into the urine. Dr Caldwell said that the levels peaked after about four or five days and then dropped off below the threshold despite ongoing ingestion. Further to that, Dr Caldwell ultimately formed the view that the results from the University study, as stated, ‘[lay] some questions’ as to whether or not ongoing consumption would produce a build-up in terms of what was detected referring to the high levels of excretion in the urine.[20] I accept Dr Caldwell’s unchallenged evidence.
  15. [34]
    Mr Waltisbuhl is an experienced trainer and is clearly aware of the Rules such that a horse must be presented free of a prohibited substance. Mr Waltisbuhl has had an opportunity to present evidence to the Tribunal.  Mr Waltisbuhl has failed to convince me that the presence of Arsenic in the wooden rails or Koppers log said to have been consumed by the horse Drunken Artist has resulted in the horse returning the samples taken on the day when he presented the horse for racing. As I have said the horse Drunken Artist returned positive results for Arsenic that were double the prescribed amount for Arsenic.
  16. [35]
    Further to that, in my view Mr Waltisbuhl as an experienced trainer should have taken more care in the management of the horse prior to presenting the horse for a race. Indeed, Mr Waltisbuhl himself says that there was a tag stapled to the end of the wooden logs to prove the presence of Arsenic. Mr Waltisbuhl was clearly aware that the horse was eating the wooden rails or logs that contain traces of Arsenic which is a prohibited substance. Mr Waltisbuhl should have taken more care in how the horse was kept and maintained prior to being presented for a race.
  17. [36]
    Mr Waltisbuhl was required to present the horse for a race free of prohibited substances. The horse Drunken Artist was presented to four different races on 28 November 2018, 11 January 2019, 17 January 2019 and 14 February 2019, respectively, and on each occasion the horse returned a positive reading for the presence of a prohibited substance that exceeded the prescribed threshold.
  18. [37]
    Turning to the correct and preferable penalty to be imposed including any period of suspension, Ms Johnston submitted at the oral hearing that a period of suspension permits the individual concerned to attend races and to associate with persons within the industry but is not entitled to carry on any activity with licensed animals. Ms Johnston submitted that the usual timeframe for an individual to be given to prepare before commencing any period of suspension is seven days.
  19. [38]
    I am satisfied that the correct and preferable decision in this matter is, as set out in the Commission’s reconsidered decision, a fine of $2,000.00 for each of the presentation charges (Charges 2 and 4) for Arsenic and a period of suspension for twelve months for each of the presentation charges (Charges 3 and 5) for Cobalt, such period of suspension to be served concurrently.
  20. [39]
    In my view a fine and period of suspension as imposed by the Commission in the reconsidered decision reflects the purpose of discipline to maintain integrity of the industry as a whole and to demonstrate to participants in the industry and the public, that behaviour which breaches the Rules will not be tolerated.
  21. [40]
    I am satisfied that the penalty is consistent with other matters involving similar conduct.[21] In Queensland Racing Integrity Commission v Scott[22] the individual was suspended for a period of twelve months for the presentation of a horse to race with Cobalt levels in excess of the threshold. In Scott, like the present matter before me, the individual (Mr Scott) was aware that substances being fed to the horse contained Cobalt.
  22. [41]
    I am also referred to and have considered the decision of Graham v Queensland Racing Integrity Commission[23] which, although subject to an appeal to the Appeal Tribunal, also resulted in a penalty of a twelve month suspension for the presentation of a horse to race with a Cobalt level in the excess of the threshold amount.
  23. [42]
    I have considered Mr Waltisbuhl’s submission that in the event that I confirm the decision to impose a suspension he will require a period of time to make arrangements for the horses that he trains such as to organise auctions. The application for review was filed on 8 August 2019. In my view Mr Waltisbuhl has had sufficient time to make arrangements for his horses on the basis that he may not be successful in the review proceedings. I do accept, however, that a period of time is required for Mr Waltisbuhl to make arrangements for the horses he trains. I am satisfied that a period of fourteen days is appropriate in this matter and will enable Mr Waltisbuhl sufficient time to put in place necessary arrangements for his horses.
  24. [43]
    The correct and preferable decision is that the reconsidered decision of the Queensland Racing Integrity Commission of 2 December 2019 is confirmed. The period of suspension imposed for Charges 3 and 5, respectively, is to be served concurrently, commencing fourteen (14) days from the date of this order.

Footnotes

[1]Pursuant to s 246 of the Racing Integrity Act 2016 (Qld).

[2]See Exhibit 2.

[3]QCAT Act, s 19 and s 20.

[4]Queensland Racing Integrity Commission v Kadniak [2017] QCATA 102.

[5]Ibid, [11].

[6]See Murray v Deputy Commissioner Stewart [2011] QCAT 583, [40] (Hon JB Thomas).

[7]Briginshaw v Briginshaw (1938) 60 CLR 336.

[8]Exhibits 3 and 4.

[9]Submissions of the respondent filed 6 April 2021.

[10][2016] QCATA 146.

[11]Ibid, [24] and citing Edmondson v Queensland All Codes Racing Industry Board [2016] QCAT 70. 

[12]See Russell v Queensland Racing Integrity Commission [2020] QCAT 329 at [29] and the submissions of the respondent filed 6 April 2021, p 6.

[13]Exhibit 1, p 60 and see r 188 and submissions of the respondent filed 6 April 2021, p 5.

[14]Exhibit 1, p 73.

[15]Exhibit 1, p 60 and see rule 188 and submissions of the respondent filed 6 April 2021.

[16]Exhibit 1, p 73 and see rule 188 and submissions of the respondent filed 6 April 2021.

[17]Exhibit 3.

[18]Ibid, also see Exhibit 1 and transcript from the Stewards’ hearing at p 22.

[19]Exhibits 2 and 3.

[20]Exhibit 1, p 19.

[21] See Submissions of the respondent filed 6 April 2021 and supporting authorities.

[22]Queensland Racing Integrity Commission v Scott [2019] QCATA 121.

[23]Graham v Queensland Racing Integrity Commission [2019] QCAT 198.

Close

Editorial Notes

  • Published Case Name:

    Waltisbuhl v Queensland Racing Integrity Commission

  • Shortened Case Name:

    Waltisbuhl v Queensland Racing Integrity Commission

  • MNC:

    [2021] QCAT 132

  • Court:

    QCAT

  • Judge(s):

    Member Browne

  • Date:

    21 Apr 2021

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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