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Law v Queensland Racing Integrity Commission[2021] QCAT 39

Law v Queensland Racing Integrity Commission[2021] QCAT 39

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Law v Queensland Racing Integrity Commission [2021] QCAT 39

PARTIES:

RAYMOND LAW

(applicant)

v

QUEENSLAND RACING INTEGRITY COMMISSION

(respondent)

APPLICATION NO/S:

OCR309-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

13 January 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:

The reviewable decision, being the reconsidered decision of 12 June 2020, is set aside and substituted with the following decision:

  1. The applicant has contravened rule 240(c) of the Australian Harness Racing Rules.
  2. The applicant is disqualified from racing for nine (9) months, from 11 June 2019 to 11 March 2020 and, upon re-instatement of the applicant’s licence, for a further nine (9) months, wholly suspended.

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – where Stewards upheld protest against applicant following race at Albion Park on 11 June 2019 – where applicant went from first place to fourth place - where applicant involved in verbal and physical altercation with other licensees following Stewards’ Inquiry – where applicant also abusive and threatening towards a Steward attempting to assist at time of altercation – whether breach of Australian Harness Rules, rule 240(c) – consideration of appropriate penalty.

Australian Harness Racing Rules, rule 240(c)

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

Racing Integrity Act 2016 (Qld), s 246

Currie v Queensland Racing Integrity Commission [2020] QCAT 240

Hooper v Racing Queensland Limited [2012] QCAT 346

Queensland Racing Integrity Commission v Vale [2017] QCATA 110

Robbins v Harness Racing Board [1984] VR 641

Thomson v Queensland Racing Integrity Commission [2019] QCAT 86

REASONS FOR DECISION

  1. [1]
    This matter arose out of events subsequent to a horse race at Albion Park. The race was race 5 at Albion Park on 11 June 2019. Mr Raymond Law, the applicant, was the driver of a horse, Golddigger Girl, and Mr Matthew Elkins and Mr Chris Frisby were the driver and trainer respectively of another horse in the race, Aunty Bessy.
  2. [2]
    Golddigger Girl was initially placed first in the race. However, Mr Elkins lodged a protest against Mr Law alleging interference. A protest hearing was conducted which upheld the protest, resulting in Golddigger Girl being placed fourth and Aunty Bessy being elevated to third placing. Mr Law reacted badly to that decision and engaged in conduct involving Mr Frisby and members of the Elkins family which led to Mr Law being charged with doing something after a race which was, in the opinion of the Stewards, ‘improper’ within the meaning of rule 240(c) of the Australian Harness Racing Rules (AHRR).
  3. [3]
    Mr Law was asked to attend a Stewards’ Inquiry into this post-race conduct on 11 June 2019 but declined to do so. The Inquiry proceeded on 11 June 2019 with Stewards Messrs L. Wilson, N. Finnigan and J. Hackett conducting interviews with the following witnesses: Mr D.Gatt, Mr C. Cini, Ms C.Turpin, Mr J.Wallace, Mr G.Elkins, Mr C.Frisby, Mr J Elkins, Mr R.Macquire, Mr M Elkins and Ms M Rail.
  4. [4]
    On 15 July 2019 the Inquiry resumed with Stewards Messrs D. Farquharson, N. Torpey, D. Aurisch and P. Kennedy. Mr Law was in attendance and gave evidence on 15 July 2019. He had been given a copy of the transcript of the Stewards’ Inquiry proceedings of 11 June 2019 and a copy of the file notes of the Stewards who were engaged to officiate at that race meeting on that day.
  5. [5]
    The decision of the Stewards on 15 July 2019 was to find Mr Law guilty of a breach of AHRR rule 240(c). The conduct relied upon as the basis for the finding can be summarised as follows:
    1. (a)
      Mr Law hit Mr Frisby to the side of the head as they were walking along a corridor leaving the protest hearing;
    2. (b)
      Mr Law instigated an altercation between Mr Law and members of the Elkins family, which involved Mr Law shoving Mr Matthew Elkins back against a wall, causing him to hit his head on the wall and break his riding glasses; and
    3. (c)
      Mr Law verbally abused and threatened Mr Neil Finnigan, a Steward, who intervened in the altercation with the Elkinses and who was told by Mr Law, in effect, that he ‘didn’t care who he was’ and that he would ‘smash him too’.
  6. [6]
    The QIRC found Mr Law in breach of rule 240(c) due to the conduct outlined above and imposed a two year disqualification commencing from 15 July 2019. Mr Law applied for internal review. The decision was confirmed on internal review on 30 August 2019.
  7. [7]
    On 24 September 2019 Mr Law applied for external review of the internal review decision of 30 August 2019.
  8. [8]
    On 12 June 2020 the QIRC issued a reconsidered decision. On reconsideration the QIRC found Mr Law guilty of breaching rule 240(c) of the AHRR and amended the penalty whereby the applicant was disqualified for a period of 12 months from midnight on 11 June 2019 and expiring on 11 June 2020; and, upon expiration of the period of disqualification and upon the reinstatement of the applicant’s licence, the applicant’s licence was suspended for a period of 12 months, wholly suspended for 12 months.
  9. [9]
    On 24 September 2019 Mr Law applied for external review of the decision of 12 June 2020.

The relevant statutory framework

  1. [10]
    The review process under the Racing Integrity Act 2016 (Qld) begins with an internal review of the original decision. An ‘original decision’ is defined to include, relevantly, a decision to take disciplinary action relating to a licence.[1]
  2. [11]
    The internal review decision is reviewable pursuant to s 246 of the Racing Integrity Act 2016 (Qld).[2] Section 246, which provides that a person may apply for review of an internal review decision, applies to a person who, under s 245(6), must be given a review notice for an internal review decision. As the decision on internal review was not the decision sought by Mr Law, he was entitled, under s 245(6), to receive a review notice, and accordingly, entitled to apply for external review. The reconsidered decision, although made after the application for review, is taken to be the reviewable decision by s 23(4)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
  3. [12]
    The purpose of the review is to produce the correct and preferable decision, which must be arrived at by way of a fresh hearing on the merits.[3] It is not necessary to establish any error in either the process or reasoning of the QIRC that led to the decision and there is no presumption that the reviewable decision was correct.[4]
  4. [13]
    Mr Law was charged and convicted of a breach of AHRR rule 240(c) which provides as follows:

A person shall not, whether alone or in association with others, do, permit or suffer anything before, during or after a race which in the opinion of the stewards or controlling body…

…

(c) is improper.

  1. [14]
    The requisite standard of proof to be applied by the Tribunal is on the balance of probabilities, applying the sliding scale espoused by the High Court in Briginshaw v Briginshaw[5] whereby the seriousness of the allegation or the gravity of the consequences that flow from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the Tribunal.
  2. [15]
    The observations of Gordon J in R v Day[6] are apposite:

[T]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether an issue has been proved to the reasonable satisfaction of the tribunal. Where, as here, fraud is alleged, ‘reasonable satisfaction’ is not produced by inexact proofs, indefinite testimony, or indirect inferences. This does not mean that the standard of persuasion is any higher than the balance of probabilities. It does mean that the nature of the issue necessarily affects the process by which the reasonable satisfaction is reached.[7]

  1. [16]
    The Tribunal, must therefore, be satisfied on the balance of probabilities in accordance with the principles in Briginshaw, that Mr Law engaged in behaviour after race 5 that was improper. It has been held that to be ‘improper’, behaviour must be such that “a right thinking person would regard the conduct as so wrongful and inappropriate in the circumstances that it calls for the imposition of a penalty”.[8] If the Tribunal is so satisfied, then it must determine the appropriate penalty.

Submission of the parties

  1. [17]
    Mr Law concedes that his conduct was “inappropriate”, although not to the extent, nor manner, alleged by the QIRC. Mr Law admits that he engaged in “push and shove” with Mr Frisby after the Stewards’ protest hearing on 11 June 2019 but denies he ever “king-hit” him. Mr Law also denies assaulting Mr Matthew Elkins but says instead that he was set upon by the Elkins brothers in the stabling area, after being verbally provoked by them. He says that he was held by them, that it was three against one and that he reacted in self-defence by throwing off Mr Matthew Elkins who landed against the wall. Mr Law admits to the verbal abuse and threats made to Mr Finnigan.
  2. [18]
    Mr Law submits that, in those circumstances, the penalty imposed was harsh and excessive and that a six month suspension is the appropriate penalty. Mr Law also observes that if a six month penalty had been imposed, he would have been entitled to the automatic reinstatement of his licence after the suspension period.
  3. [19]
    Mr Law, in his application for review, submitted that the internal review decision is flawed because the original penalty notice had the wrong date for the alleged breach and that the two year disqualification was “harsh, unjust and unreasonable in all of the circumstances”. Mr Law also claimed that it was wrong to take into account two previous breaches when, in respect of one of those, he had received no penalty and that he had been denied procedural fairness by not having been given the opportunity to make submissions regarding that history.
  4. [20]
    Following the reconsidered decision, Mr Law submitted that the reconsidered penalty of 12 months’ disqualification and a further 12 months’ suspension was outside the range of appropriate sanctions as cited by the respondent in its submissions (all of which were around six months’ suspension/disqualification).
  5. [21]
    The respondent submitted that the decision, including on penalty, should be confirmed.

Consideration

  1. [22]
    There is a factual issue about whether Mr Law “king-hit” Mr Frisby. Mr Law denies this occurred and claims that all the respondent’s witnesses (apart from Mr Frisby) contradict this claim. The respondent submits that the direct evidence of Mr Frisby is supported by the evidence of Matthew Elkins and Ms Mandy Rail who was at the Acceptance Desk near the Stewards’ room and saw pushing and shoving and heard Mr Frisby call out “stop it”.
  2. [23]
    The alleged “king-hit” occurred when the men, Mr Law, Mr Matthew Elkins and Mr Frisby were walking, single-file down the corridor away from the protest hearing. Mr Frisby gave evidence as follows:

Mr Frisby: When I went past the counter here, Mr Law king hit me, and young Matt grabbed hold of him to –

Chairman: So he king hit you?

Mr Frisby: Yes.

Chairman: Whereabouts did he hit you?

Mr Frisby: Right on the side of the head. He king hit me.[9]

…

He [Mr Matthew Elkins] was trying – he was trying to restrain him to because he – he grabbed him when he king hit me, because he sort of knocked me half arse overhead, if you know me. I got up and – and then they were sort of wrestling. I just grabbed him: “Come on, mate. Settle down. Don’t be stupid.”[10]

  1. [24]
    Mr Matthew Elkins gave evidence as follows:

…there were words being thrown from Mr Law, and then he – we were sort of walking out in single file. I didn’t actually see the punch but I heard something hit Mr Frisby, and then he just threw Mr Frisby up against the wall, and that’s when I came in. I just – had no intention of throwing punches, nothing like that. All I was there to do was get Mr Law off Mr Frisby. I mean, it’s not a fair match up walking through that hallway and someone comes from behind at you.

…I was just trying to calm him down and make sure he wasn’t going to hit Mr Frisby again.[11]

  1. [25]
    Mr Law gave evidence as follows:

Mr Law: And then we’d walked down the hallway, and Mr Frisby – I said to Mr Frisby, “You really had to protest.” Like, he’s quite a wealthy man. He’s got a good business and horses and all this kind of stuff. Then he said to me, “Well, I had a bet so I had to protest.” …

…

Chairman: So you reacted because he said he had a bet –

Mr Law: Because he said that to me, and I felt – as I said, all the stress and pressure I have been under leading into this – the end of financial year, trying to – this horse owes me 14, 000 still. …And all of that has just got me angry as why – you know, I’ve lost 4, 000 of what I could have earned then of that money she owes me back. The owner know [sic] it and I’ve got to earn that back to get my money back, and that sort of just made me – made me angry. I pushed him. I know he said in the transcript that I king hit him, but I can tell you right now that’s not how I work. I don’t king hit anyone. If I’m going to deal with someone I deal with them front on, and to king hit an old man like Mr Frisby – like he’s 50 years old or something. I would never king hit someone - [12]

  1. [26]
    Mr Law also states on oath:

To put the matter beyond any doubt – I hereby say on oath that I did not king-hit, punch or assault Chris Frisby or any other person at Albion Park Raceway on 11 June 2019, nor at any other time.[13]

  1. [27]
    The term “king-hit” is not one of exactitude. I accept that Mr Law came up from behind Mr Frisby and punched him. Mr Frisby continued to walk down the corridor and spoke to Mr Law in a way to try to settle him down. I accept Mr Frisby was punched without warning. I am satisfied the behaviour was improper.
  2. [28]
    With respect to the incident in the stabling area several minutes later, I accept that comments made by Mr Elkins were provocative. I also accept that there were three of the Elkinses and only one of Mr Law. I accept that Mr Law was still in an aggressive, angry frame of mind, and that he made the first move towards Mr Greg Elkins. I accept that the two Elkins sons took hold of Mr Law to try to restrain him and to stop him from harming their father. I accept that in the ensuing melee, Mr Matthew Elkins was thrown against a wall where he hit his head (though was wearing a helmet) and broke his riding glasses. This behaviour, although provoked to some extent, was nonetheless also unjustified and ‘improper’.
  3. [29]
    Mr Law concedes that he behaved inappropriately towards Mr Finnigan, a Steward, by using abusive and threatening language towards him. This conduct was also ‘improper’.
  4. [30]
    I find therefore, that Mr Law is guilty of a breach of AHRR rule 240(c) by his aggressive, physically violent conduct towards Mr Frisby and later towards Mr Greg Elkins, Mr Matthew Elkins and Mr Justin Elkins and by his verbally abusive conduct towards Mr Finnigan, an official.
  5. [31]
    I turn to consider the appropriate penalty for such conduct, viewed as a whole. Mr Law has now served his 12 month period of disqualification. Upon reinstatement of his licence, Mr Law would, under the reconsidered decision, be subject to a further period of 12 months’ suspension, wholly suspended for a further 12 months.
  6. [32]
    In arriving at the appropriate penalty I take into account that Mr Law’s conduct occurred in more than one incident and over a period of some minutes. I take account of the fact that Mr Law was physically aggressive towards a number of people, including Mr Frisby and members of the Elkins family. Mr Law was also abusive and threatening towards a Steward, towards whom he should, as a licensee, show a degree of respect and restraint. I accept that the conduct was, at times, in view of other racing participants and the general public.[14] I also accept the submissions of the respondent to the effect that the conduct was serious in that it affected the safety of participants in the industry generally and specifically while race meetings were being conducted; affected the integrity of race meetings themselves; and undermined confidence in the decisions of Stewards on race days.[15] I also take into account that Mr Law has two prior conduct related matters, one of which resulted in a reprimand.
  7. [33]
    On the other hand, I accept that Mr Law was upset by the protest that was made against him, which he considered unjustified and which resulted in him losing his first place winnings, and by taunting from members of the Elkins family. I also find that Mr Law was outnumbered when he proceeded to the stabling area which could also have further aggravated the situation. I also find that, although Matthew Elkins was pushed into a wall in the stabling incident, there were no punches thrown[16] and that it quickly became a situation, as described by a witness, where they “all had each other by the collar” and were “talking a bit of smack”.[17] Further, I accept that Mr Law and his partner have suffered financial hardship as a consequence of his disqualification, which has prevented him from assisting his partner track-side with the unloading, preparation, rigging, farrier work, driving, hosing down and other duties associated with training and racing. Finally, I take into account that Mr Law fully accepts that his behaviour on 11 June 2019 was improper, though not to the extent alleged.
  8. [34]
    In Currie v Queensland Racing Integrity Commission[18] the Tribunal said that, as a matter of fairness and natural justice, the Tribunal should strive to achieve the greatest degree of consistency as is possible. Further, that although previous penalty decisions are not binding on the Tribunal, they may be followed by the Tribunal deciding factually similar cases, unless plainly wrong.[19] Having regard to comparable cases helps to ensure that similar principles are applied consistently so, as a matter of systemic fairness, like cases are treated alike and different cases distinguished.
  9. [35]
    The respondent has referred to three decisions, not by the Tribunal, where the licensee was found guilty of improper conduct as a result of physical violence. In each of those cases the disqualification period was six months. In the first, a decision of the Tasmanian Racing Appeal Board, the licensee was disqualified for assaulting a racing official at a social function when a fight broke out on the dance floor. In the second, an internal review decision, the licensee was disqualified for striking another licensee to the side of the head when he had his back turned and was walking to his car. In both cases the licensee had a record of previous similar breaches. In the third, a decision of the Victorian Racing Appeal Board, the licensee became violent towards two Stewards who had attended his stables to talk to him about administering an anabolic androgenic steroid to two of his horses and in the course of that, discovered the offending steroid. In that case the Appeal Board took into account that the licensee wrote a letter of apology the following day and that he suffered from an anxiety disorder.
  10. [36]
    The respondent submits that a period of 12 months’ disqualification is within range given the “protracted course of conduct engaged in by the applicant, which involved offering violence and abuse towards a number of people including a steward following a decision regarding a protest that did not go his way.”[20] The respondent also submits that the offending is “further aggravated by the applicant’s previous history of breaching the Rules and his plea of not guilty”.[21]
  11. [37]
    Mr Law refers to a further two cases, one involving a head-butt and ensuing altercation where the offending licensee received a $2,000 fine, and another which involved a head-butt resulting in significant injury to the victim’s nose, where the licensee received a six month disqualification.[22]
  12. [38]
    I also refer to Hooper v Racing Queensland Limited[23] where the licensee berated a Steward, swore and made offensive comments and was found guilty of conduct that was designed to intimidate, scare and undermine the Steward. The conduct was witnessed by others and, at the time of the offending, the licensee was subject to a good behaviour bond for an earlier disciplinary breach and was said to have had a history of outbursts and aggression at the track. There, a period of disqualification of three months and four months (served concurrently) was imposed and upheld by the Tribunal. I take note also of Auld v Queensland Racing Limited[24] where a six week disqualification was imposed when a male licensee struck a female licensee in the face after being hit by her in the face with a lead rope and to Queensland Racing Integrity Commission v Vale[25] where the licensee was suspended for six months for incidents of swearing, threats and abuse directed at a number of Stewards following a decision to swab one of his horses.
  13. [39]
    I consider Mr Law’s conduct more serious than the conduct of the licensee in each of the precedents referred to above (except arguably in Auld), in particular because the relevant conduct was not an isolated one-off incident but a series of events of physical aggression and other improper behaviour. The conduct also occurred after, and as a consequence of, the Stewards upholding a protest against Mr Law’s horse.
  14. [40]
    It is important that licensees show respect for decisions made by Stewards at protest hearings and/or Inquiries and towards race officials generally. To react the way Mr Law did undermines the authority of the decisions made by Stewards and threatens the integrity of the racing industry in general. It also threatens the safety of participants in the industry. That said, I consider a 12 month disqualification, followed by a 12 month suspension, to be outside the demonstrated range of penalties for similar offending behaviour as demonstrated by the precedents above.
  15. [41]
    In my view, the appropriate penalty is a nine month disqualification and, upon re-instatement of Mr Law’s licence, a further period of nine months’ disqualification fully suspended.
  16. [42]
    Accordingly, I set aside the reconsidered decision and substitute a decision that AHRR rule 240(c) was breached and impose a nine month disqualification, having effect from 11 June 2019 to 11 March 2020 to be followed, upon re-instatement of the applicant’s licence, by a further period of nine months’ disqualification wholly suspended.

Footnotes

[1]Racing Integrity Act 2016 (Qld), s 240(1)(b).

[2]If the internal review decision confirms the original decision, the original decision is taken to be the internal review decision: s 245(4) Racing Integrity Act 2016 (Qld).

[3]QCAT Act, s 20.

[4]Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [8] cited in Thomson v Queensland Racing Integrity Commission [2019] QCAT 86, [7].

[5](1938) 60 CLR 336.

[6][2017] HCA 2; 91 ALJR 262.

[7]Ibid, [15].

[8]Robbins v Harness Racing Board [1984] VR 641, 646 (O'Bryan J).

[9]T, 17.

[10]T, 19.

[11]T, 30.

[12]T, Day 2, 6.

[13]Affidavit of Raymond Law dated 6 January 2020.

[14]Robbins v Harness Racing Board [1984] VR 641, 646-647.

[15]Submissions of the respondent dated 30 June 2020, [34].

[16]T, Day 1, 15 [35] (Greg Elkins).

[17]T, Day 1, 10 [25] (Jacob Wallace).

[18][2020] QCAT 240, [38] citing Abbott v Racing Queensland [2012] QCAT 230.

[19]Queensland Racing Integrity Commission v Vale [2017] QCATA 110, [74] citing Lacey v Attorney-General (Qld) (2011) 242 CLR 573, 596.

[20]Submissions of the respondent dated 30 June 2020, [40].

[21]Ibid.

[22]Submissions by the Applicant dated 6 July 2020, [61]-[62].

[23][2012] QCAT 346.

[24][2013] QCAT 446.

[25][2017] QCATA 46.

Close

Editorial Notes

  • Published Case Name:

    Law v Queensland Racing Integrity Commission

  • Shortened Case Name:

    Law v Queensland Racing Integrity Commission

  • MNC:

    [2021] QCAT 39

  • Court:

    QCAT

  • Judge(s):

    Member Traves

  • Date:

    13 Jan 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Abbott v Racing Queensland Limited [2012] QCAT 230
1 citation
Jump To
Cite 1 - [2012] QCAT 230
Auld v Queensland Racing Ltd [2013] QCAT 446
1 citation
Jump To
Cite 1 - [2013] QCAT 446
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
Currie v Queensland Racing Integrity Commission [2020] QCAT 240
2 citations
Jump To
Cite 1 - [2020] QCAT 240
Cite 2 - [2020] QCAT 240
Hooper v Racing Queensland [2012] QCAT 346
2 citations
Jump To
Cite 1 - [2012] QCAT 346
Cite 2 - [2012] QCAT 346
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
1 citation
Jump To
Cite 1 - [2010] QCATA 58
Lacey v Attorney-General (Qld) (2011) 242 CLR 573
1 citation
Jump To
Cite 1 - (2011) 242 CLR 573
Queensland Racing Integrity Commission v Vale [2017] QCATA 46
1 citation
Jump To
Cite 1 - [2017] QCATA 46
Queensland Racing Integrity Commission v Vale [2017] QCATA 110
2 citations
Jump To
Cite 1 - [2017] QCATA 110
Cite 2 - [2017] QCATA 110
Re Day [2017] HCA 2
1 citation
Jump To
Cite 1 - [2017] HCA 2
Robbins v Harness Racing Board [1984] VR 641
3 citations
Jump To
Cite 1 - [1984] VR 641
Cite 2 - [1984] VR 641
Cite 3 - [1984] VR 641
Thomson v Queensland Racing Integrity Commission [2019] QCAT 86
2 citations
Jump To
Cite 1 - [2019] QCAT 86
Cite 2 - [2019] QCAT 86

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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