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William Peter Hulbert v Queensland Racing Integrity Commission[2022] QCAT 130

William Peter Hulbert v Queensland Racing Integrity Commission[2022] QCAT 130

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

William Peter Hulbert v Queensland Racing Integrity Commission [2022] QCAT 130

PARTIES:

WILLIam Peter hulbert

(applicant)

v

Queensland Racing Integrity Commission

(respondent)

APPLICATION NO/S:

OCR170-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

12 April 2022

HEARING DATE:

22 February 2022

HEARD AT:

Brisbane

DECISION OF:

Member Lee

ORDERS:

The decision of the Queensland Racing Integrity Commission of 31 May 2021 is confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – OTHER PROFESSIONS, TRADES AND CALLINGS – licensed trainer in thoroughbred racing industry – offensive language used about a jockey in an audio recording which became public – found guilty of misconduct, improper conduct or unseemly behaviour – whether Tribunal has jurisdiction when charge different on review – whether charge substantiated on review – whether penalty proportionate and appropriate. 

Australian Rules of Racing, rule 228

Human Rights Act 2019 (Qld), s 8, s 13(1), s 21, s 58

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19(c), s 20(1)(2), s 24(1)

Racing Act 2002 (Qld), s 4(1), s 100(2)(a)(b), s 101

Racing Integrity Act 2016 (Qld), s 3(b), s 24, s 63(a)(b), s 240(1), s 243(1), s 245, s 246

DA v Deputy Commissioner Martin [2018] QCAT 10

Coleman v Power (2004) 220 CLR 1

Couchy v Birchley [2005] QDC 334

Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480

Johnson v Miller (1937) 59 CLR 467

Jones v Acting Assistant Commissioner Horton [2021] QCAT 209

Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273

APPEARANCES &

REPRESENTATION:

Applicant:

Tim Ryan, instructed by Howden Saggers Lawyers

Respondent:

Matt Black, instructed by Queensland Racing Integrity Commission

REASONS FOR DECISION

Introduction

  1. [1]
    Mr William Peter Hulbert (Mr Hulbert) has applied to the Tribunal[1] for a review of the Internal Review Decision of the Queensland Racing Integrity Commission (QRIC) which upheld the finding that Mr Hulbert engaged in misconduct[2] together with the issuance of a penalty by way of a fine in the sum of $1,000 (the decision).
  2. [2]
    The decision was made on 31 May 2021[3] after Mr Hulbert sought a review of the earlier decision of the QRIC Stewards Panel of 28 April 2021[4] which found him guilty of a charge of misconduct and the issuing of a penalty by way of a fine in the sum of $1,000 (the original decision).
  3. [3]
    The issues to be determined in these proceedings is whether a ground for disciplinary action is established and if so, the appropriate sanction to be taken.

Background

  1. [4]
    On 30 January 2021 Mr Hulbert, a licenced trainer within the thoroughbred racing industry in Queensland of some years, made an audio recording about the performance of a jockey he engaged (Mr Andrew Mallyon) on the riding of a horse Mr Hulbert trained (the gelding ‘Criminal Defence’) in a race at the Sunshine Coast Turf Club that day.
  2. [5]
    The language used in the audio recording[5] as stated in the decision, is as follows:

‘Well what a waste of a fucking day that was, putting the so-called in form fucking Brisbane jock on. He is a fucking brain dead cunt that will never fucking sit on one of our horses ever again. All day here you’ve gotta get off the fence, at least five horses off the fence. He was on the winner’s back at the 600 and the brain dead cunt went into the fucking inside fence into quicksand and fucking noodles still had the audacity to hit the line. If he come around ‘em then he would have fucking won but the brain dead cunt went into the fucking quicksand, like, just a waste of a fucking day for everyone involved. I just feel sorry for the horse. He’s fucking flying and he has to fucking cop shit like that. It’s a fucking joke. Oh well, more luck next prep boys. Fucking unbelievable, I am fucking ropable. I’ll fucking kill that cunt.’

  1. [6]
    About an hour after the race and after viewing footage, Mr Hulbert provided the audio recording to the owners of the horse by uploading it to an electronic platform, ‘My Stable’.[6] The audio recording thereafter found its way into the public domain.

Legal Framework

  1. [7]
    The legal framework under which this proceeding operates is the Racing Act 2002 (Qld) (‘the Racing Act’) and the Racing Integrity Act 2016 (Qld) (‘the Racing Integrity Act’).
  2. [8]
    The main purpose of the Racing Act is provided in section 4(1) as follows:

‘to manage, operate, develop and promote codes of racing in a way that ensures public confidence in the racing industry in Queensland’

  1. [9]
    One of the roles of the control body (Racing Queensland Board) is to make policies and rules of racing.[7] Relevant to these proceedings are the Australian Rules of Racing (‘Rules’).[8]
  2. [10]
    Relevantly, Rule 228 (‘Conduct detrimental to the interests of racing’) provides as follows:

‘A person must not engage in:

  1. (a)
    conduct prejudicial to the image, interests, integrity, or welfare of racing, whether or not that conduct takes place within a racecourse of elsewhere;
  2. (b)
    misconduct, improper conduct or unseemly behaviour;
  3. (c)
    improper or insulting behaviour at any time towards a PRA, the Stewards, a Club, or any official, employee, contractor or agent of any of them in relation to the relevant person’s functions, powers or duties;
  4. (d)
    publishing or posting on any social media platform or channel any material, content or comment that is obscene, offensive, defamatory, racist, threatening, harassing, discriminatory or abusive to or about any other person involved in the racing industry;
  5. (e)
    conduct which threatens, disparages, vilifies or insults another person (‘other person’) on any basis, including but not limited to, a person’s race, religion, colour, descent, national or ethnic origin, special ability/disability, or sexual orientation, preference or identity, while the other person is acting in the course of his or her duties in the racing industry.
  1. [11]
    One of the functions of the Racing Integrity Act is licensing of racing participants. One of the main purposes of this Act is provided in section 3(b) as follows:

‘(b) to ensure the integrity of all persons involved with racing or betting under this Act or the Racing Act’

  1. [12]
    Relevant to the licensing scheme, the purposes are achieved in section 63 (a) and (b) for a code of racing that ensures as follows:

‘(a) the integrity of racing activities conducted as part of the code; and

(b) the safety of persons involved in racing or training licensed animals…’

  1. [13]
    In this case, the relevant powers exercised were that disciplinary action was taken by the Stewards relating to Mr Hulbert’s licence[9] and, following an application by Mr Hulbert as ‘an interested person’[10] for a review of the original decision,[11] the QRIC  made an Internal Review decision that confirmed the original decision.[12]
  2. [14]
    Pursuant to section 246 of the Racing Integrity Act, a person dissatisfied by the decision can apply to the Queensland Civil and Administrative Tribunal for a review of the decision. In doing so, the Tribunal:
    1. (a)
      Has all the functions of the respondent in respect of the internal review decision;[13]
    2. (b)
      Must hear and decide the review by way of a fresh hearing on the merits;[14] and
    3. (c)
      May confirm or amend the decision under review, may set aside the decision and substitute its own decision or may set aside the decision and return it for reconsideration to the Respondent.[15]
  3. [15]
    The purpose of the Tribunal’s review now is provided in section 20(1) of the QCAT Act, that is to produce the correct and preferable decision.

Jurisdiction

  1. [16]
    At the hearing oral submissions made on behalf of Mr Hulbert about a preliminary issue. As I understand those submissions, given the charge giving rise to the referral had now shifted from a charge based on a threat to kill to a charge based on language alone, the Tribunal has no jurisdiction to make a correct and preferable decision. The submission was that the threat to kill component was fundamental to the decision under review.
  2. [17]
    In essence, it was advanced that the case before the Tribunal is a different case to the case that was before the internal reviewer and because the charge now cannot be established without the threat to kill, it should be dismissed.
  3. [18]
    That submission was based upon counsel for the QRIC conceding the threat to kill aspect of the charge was no more than a ‘colloquial idiom’ used to express anger such that it was accepted there was no threat of violence.[16]
  4. [19]
    Reliance was placed upon authority which outlined the nature of a merits review in an administrative context, to the following effect:

On the proper application of the authorities it is necessary, therefore, to consider the same question as the original decision maker.[17]

  1. [20]
    In determining the same question as the original decision maker, it was submitted on behalf of Mr Hulbert that particulars of the charge is fundamental to that exercise, as follows:

For a defendant is entitled to be apprised not only of the legal nature of the office with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge.[18]

  1. [21]
    In reply, counsel for QRIC orally submitted that it was clear in the original decision that the Stewards issued the charge based upon Mr Hulbert’s engagement in ‘misconduct, improper conduct or unseemly behaviour’[19] by the making of an audio recording which was ‘inappropriate and offensive’. On this basis, it was submitted that the Stewards did not confine their decision on the threat to kill and that whilst it was true that the internal reviewer focussed on the threat to kill component, there was no basis to ‘transform’ that charge solely into the threat to kill charge. Ultimately, the submission was that the charge under review before the Tribunal is the same charge such that the Tribunal had jurisdiction to review the matter.
  2. [22]
    In determining the preliminary issue, it is first necessary to examine the particulars of the charge said to constitute misconduct, improper conduct or unseemly behaviour.
  3. [23]
    The charge issued by the Stewards in the original decision was pursuant to Rule 228(b), as follows:

‘A person must not engage in misconduct, improper conduct or unseemly behaviour’

  1. [24]
    The Stewards set out the specifics of the charge, as follows:

‘being that following Criminal Defence competing at the Sunshine Coast on 30 January 2021, Mr Hulbert misconducted himself by making an audio recording to the registered owners of the gelding regarding Mr Mallyon’s riding of Criminal Defence, which was inappropriate and offensive.’

  1. [25]
    In the Internal Review decision, it was orally submitted on behalf of Mr Hulbert that the finding of substantiation of the charge was based solely upon particulars of the threat to kill[20] and on that basis, it was unchallengeable that the finding was based on the threat to kill.
  2. [26]
    I do not accept that submission. On my interpretation of the internal review decision, the finding of substantiation of the charge was based not only upon a threat to kill but also in the context of and use of ‘multiple expletives’ in an audio recording.[21] Whilst it is true that the threat to kill was highlighted in the decision, it was in the context of consideration of the totality of the evidence including the ‘degree and circumstances of the Applicant’s conduct’.[22] Put another way, the particulars which founded the substantiation of the charge was not expressed in a way that excluded the language component of the charge. Indeed, counsel for Mr Hulbert admitted as much when I put this to him at the conclusion of his oral submissions.
  3. [27]
    I note that in making his decision, the internal reviewer stated in the context of the threat to kill that ‘proof of a deliberate action particular to expletives is not a mandatory requirement’.[23] This is consistent with the concession made on behalf of QRIC in this respect.
  4. [28]
    Finally, the internal reviewer found that the ‘specified charge the subject of the review’ was proven.[24] I find that this comprised a review of the complete charge before the Stewards.
  5. [29]
    I therefore find the charge before the Tribunal is the same charge as previously, such that the Tribunal has jurisdiction to review the decision.
  6. [30]
    In reaching this decision, I find the question is the same question as that which was confronted previously, namely whether the language used by Mr Hulbert in an audio recording to the owners an hour after the race amounts to misconduct, improper conduct or unseemly behaviour. This is not a case like Johnson wherein the accused faced penalties for licensing breaches of some 30 unidentified persons allegedly attending his premises during prohibited hours over a period of time. Since the outset, Mr Hulbert has known precisely the foundation of the charge against him and the question to be determined.
  7. [31]
    Having now determined the preliminary issue, I now address the substantive issues.

Is a disciplinary ground established?

  1. [32]
    Mr Hulbert has consistently maintained that he is not guilty of the charge, on the basis that the recording was akin to a private conversation between mates (‘pub talk’).[25]
  2. [33]
    Mr Hulbert admits he used ‘colourful and, at times, very salty language’;[26] the purpose of which was to convey his thoughts to the owners about the jockey not following race instructions[27] and to express his ‘disappointment and frustration’.[28]
  3. [34]
    Although Mr Hulbert says it was never his intention that the audio be circulated to anyone outside of the owners[29] on the grounds it was a private conversation between mates,[30] the audio soon thereafter found its way into the public domain following which it came to the attention of Stewards.[31] There is no direct evidence as to the source of the leak.[32] In general terms however, Mr Hulbert explains how it may have leaked, by either one or more of the owners or that My Stable was an unsecure platform.[33]
  4. [35]
    Submissions on behalf of Mr Hulbert[34] are summarised as follows:
    1. (a)
      Mr Hulbert has not contravened rule 228(b) of the Rules, that the finding of the internal reviewer was wrong and that the correct and preferable decision is that the charge against him be dismissed. Alternatively, that the penalty imposed be reduced to a reprimand; and
    2. (b)
      The applicant’s use of colourful language including the ‘colloquial’ expression ‘I’ll kill him’ was nothing more than an expression of his frustration with the jockey who failed to ride the horse in accordance with his instructions at a time when the applicant thought the horse had a winning chance, in a private communication to the owners.
  5. [36]
    These submissions were expanded upon as follows:
    1. (a)
      Mr Hulbert’s use of language in a private communication did not involve wrongdoing. To be guilty of the charge it must be established that there was a deliberate act of wrongdoing such that it amounted to a real and genuine threat to the life of the jockey, according to the relevant standard of proof;[35]
    2. (b)
      The unchallenged evidence was that Mr Hulbert never intended to cause any physical harm to Mr Mallyon, nor did he intend that his words would ever be made known to Mr Mallyon. Nor is there evidence to challenge or contradict that the language used was anything other than a spontaneous expression of frustration, including the colloquial expression ‘I’m going to kill him’. Such expression was nothing more than a commonly used idiom to emphasise one’s profound disappointment and frustration with another;
    3. (c)
      In the context of a private communication when the language was never intended to be made known to Mr Mallyon, Mr Hulbert’s words were therefore not capable of possessing a threatening quality such as to constitute misconduct for the purposes of rule 228(b) of the Rules;
    4. (d)
      No complaint was made by Mr Mallyon or any other industry participant, official or member of the public;
    5. (e)
      The fact that the audio recording was disseminated and became public was not Mr Hulbert’s intent and outside of his control;
    6. (f)
      Mr Hulbert’s language in a private communication was not prejudicial to the public image of racing, given by its very nature the communication was private;
    7. (g)
      Mr Hulbert’s right to freedom of expression in a private communication ought not be restricted, particularly since he did not disclose the communication to the media or in a public forum; and
    8. (h)
      In essence, it was nothing more than a man telling his mates what happened after a race.
  1. [37]
    Submissions made on behalf of QRIC are summarised as follows:
    1. (a)
      Acceptance by QRIC that the threat to kill was not an actual threat of violence towards Mr Mallyon by Mr Hulbert does not mean that the other language used by Mr Hulbert in the audio recording did not breach rule 228(b) of the Rules, particularly in the context of phases used such as ‘brain dead cunt’ and ‘I’ll fucking kill that cunt’;
    2. (b)
      The report to the owners about the race was not a private communication unrelated to Mr Hulbert’s professional conduct as a licensed trainer, because it was an assessment of the race after having viewed footage for the purposes of conveying to the owners Mr Mallyon’s professional performance as a jockey. Further, the choice of forum utilised by Mr Hulbert to submit the report was ‘MyStable’, an app commonly used in the racing industry. Accordingly, it was a professional race report by a licensed industry participant (trainer) about another licensed participant (jockey) and communicated to other racing participants (horse owners);
    3. (c)
      The report was inherently a professional communication and not a private one, because:
      1. it existed only because of and in the context of Mr Hulbert’s pursuit of his profession as a licensed trainer;
      2. as a race related communication from the trainer to the owners, the report would reasonably be expected to form part of the business records of both the trainer and the owners;
      3. it would be relevant and disclosable to the Stewards in relation to any inquiry or investigation that they might have made independently of this nature, for example in relation to the race more generally; and
      4. even Mr Hulbert acknowledges the owners were not just his mates, but were his ‘clients’;[36]
    4. (d)
      The language used by Mr Hulbert was incontrovertibly and gratuitously offensive;
    5. (e)
      There is risk associated with any online communication. Once submitted on the platform by Mr Hulbert, it was entirely outside of his control. The risk eventuated in that the audio recording was leaked to the public by others;
    6. (f)
      While some swearing in the workplace or by a regulated professional might not be thought to be improper[37], the language in this case was used in the context of a race related assessment and submitted to other industry participants. It is not analogous to a private conversation between mates at a pub. In that context, Mr Hulbert’s choice of language is ‘unseemly’, improper’ and amounts to ‘misconduct’.[38]
  2. [38]
    In reply, counsel for Mr Hulbert orally submitted that the authorities to which counsel for QRIC referred could be distinguished, on the basis that the context in which such language was used was different such that the conduct in this case falls somewhat short. For example, in Jones, the language used was in an exchange between police officers in the workplace and in DA, the language used by a police officer was directed to a minor in the presence of another minor. Other authorities about context were briefly referred to, in oral submissions.[39] For the reasons given below, I am not persuaded by this submission.
  3. [39]
    Having carefully reviewed all the evidence, including an audio recording of the oral evidence given at the Stewards Inquiry, I am not persuaded by Mr Hulbert’s contention and submission that he is not guilty of the charge, on the following grounds:
    1. (a)
      Whilst the recording may well have been intended as a private communication to 4 individuals who were mates, it is difficult to ignore the fact that Mr Hulbert chose to place it on a platform which, like most platforms, is unsecure. Mr Hulbert seems to concede that technology has its limitations[40] and is associated with inherent risk.[41] To contend otherwise after having been found guilty of a charge by QRIC is, with respect, unconvincing. Relevantly, once the audio was uploaded, Mr Hulbert lost control over the information and in that sense I do not accept the publication was entirely outside of his control. It is my view that Mr Hulbert, an experienced trainer in the racing industry, ought to have avoided placing himself in such a vulnerable position so as to avoid the potential for dissemination of ‘colourful’ and ‘salty’ information into the public domain; such unsavoury language having the capacity to bring the racing industry into disrepute;
    2. (b)
      The purpose of the report to the owners was to provide feedback on the race performance of the jockey on their horse, which failed to achieve a place. Against that background, it could hardly be argued that this was a private conversation unrelated to his professional role in the racing industry. In this sense, it matters little that Mr Hulbert and the owners were mates. I accept the submissions made on QRIC’s behalf, that the report is properly characterised as a professional race report by one licenced industry participant (trainer) about another licensed participant (jockey) and communicated to other professional industry participants (the owners). I reject the applicant’s submissions that the recording ought to be viewed in a different context, as it was not made directly to the jockey or made in a public place or that no complaints were made, on the same basis;
    3. (c)
      On any reasonable view of it, the repeated use of language including ‘brain dead cunt’ and ‘I’ll fucking kill that cunt’ and other expletives is inappropriate. It is no defence to contend that this is how mates speak to each other or to express frustration in a professional context, intentional or not, when the clear purpose of both Acts and Rules requires a higher standard for racing participants. It is not disputed that the context of the incident occurred in a racing setting and that Mr Hulbert, Mr Mallyon and the owners were racing participants. Current societal standards do not tolerate language of this nature in a professional industry such as this. I have applied the Briginshaw standard of proof accordingly;
    4. (d)
      Mr Hulbert’s lack of insight about the wider industry implications of his behaviour, including potential impact on other jockeys who may not have had the same fortitude as the jockey in this case.[42] In this context, it matters little that the participants involved in this case were unperturbed by the language used. Demonstrative of the lack of insight is Mr Hulbert’s interpretation of Mr Mallyon’s reaction to the incident after the audio recording became public, which was attributed as ‘a joke’. Whilst it is true Mr Mallyon gave evidence to the Stewards that he did not ‘lose any sleep’ over it, he was nevertheless disappointed that it ended up being made so publicly. There was no evidence other than from Mr Hulbert, that Mr Mallyon found the incident humorous;[43]
    5. (e)
      There was an appropriate avenue for Mr Hulbert to express his frustration, namely Rule 105 ‘Matters that may affect the running of a horse in a race’. Wherein:
  1. (2)
    The owner and/or trainer of a horse must:
  1. (a)
    as soon as practicable after a race, report to the Stewards anything which might have affected the running of their horse in a race…’

Mr Hulbert’s explanation for not utilising this avenue is unconvincing; [44] and

  1. (f)
    In the circumstances of this case, to find that the conduct was not substantiated is to essentially condone the use of offensive language in professional communications and reports.
  1. [40]
    I am therefore satisfied that the charge as particularised has been established on the evidence and find accordingly. 

Penalty

  1. [41]
    As I understand the combination of oral and written submissions made on behalf of Mr Hulbert, the position argued is as follows:
    1. (a)
      that because the penalty is referable to the conduct found by the internal reviewer (which on the applicant’s case, was confined to language alone), any penalty ought be a different penalty in these review proceedings;
    2. (b)
      that because Mr Hulbert had already been ‘put through a 12 month process’, it was submitted that no more than a reprimand was appropriate; and
    3. (c)
      that if ‘at worst’ a finding of guilt was made by the Tribunal, that only a nominal penalty was warranted. In these circumstances, it was submitted that the penalty be reduced to a reprimand.
  2. [42]
    It was submitted on behalf of QRIC that the fine of $1,000.00 imposed was proportionate and appropriate and should be confirmed by the Tribunal. It was submitted that it is reflective of the seriousness of the case and serves as a suitable personal and general deterrent, particularly given the applicant’s apparent lack of insight on the impact of his language in the context in which it was used. Equally, it also took into account factors such as there being no intent in the threat to kill, that Mr Hulbert had blurred the lines between private and professional settings and that he was not aware the audio recording had become public.
  3. [43]
    Having considered all the circumstances and evidence above, I agree with the submissions of QRIC and find that a fine of $1,000.00 is proportionate and appropriate and in particular, that it serves as a deterrent to other like behaviour occurring again in these settings.

Human Rights

  1. [44]
    With respect to the Human Rights Act 2019 (Qld) (HRA), the applicant submits that his freedom of speech has been impacted by the internal review decision and further, that Rule 228(b) is incompatible with the objects of the HRA.
  2. [45]
    On behalf of the QRIC, it was submitted as follows:
    1. (a)
      that reasonable limits that can be demonstrably justified in a free and demographic society can be placed on human rights. Limitation on Mr Hulbert’s freedom of expression by restriction of language such as ‘brain dead cunt’ and ‘I’ll fucking kill that cunt’ amounts to no more than a modest curtailment of such right and is therefore reasonable;[45]
    2. (b)
      the consequences of imposing the limit on freedom of expression are minor. Trainers and other industry professionals will not be substantially curtailed in their work. They will still be able to submit reports to others, to be critical of the conduct of others, to express disappointment and frustration and to use robust language. They will merely have to confine themselves to language that does not cross the line into ‘improper conduct’ or ‘unseemly behaviour’; and
    3. (c)
      conversely, the consequences of not imposing such a limit are potentially more serious for participants who may not have the same fortitude as the jockey did in this case.[46]
  3. [46]
    Section 21 of the HRA provides as follows:
  1. (1)
    Every person has the right to hold an opinion without interference.
  2. (2)
    Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside of Queensland and whether-
    1. a.
      orally; or
    1. b.
      in writing; or
    1. c.
      in print; or
    1. d.
      by way of art; or
    1. e.
      in another medium chosen by the person.
  1. [47]
    The Tribunal acknowledges this human right and considers that it has been engaged and potentially limited by the decision of the Tribunal.
  2. [48]
    However, at law Mr Hulbert’s right to freedom of expression may be subjected to ‘reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom’,[47] and that decision makers can make decisions that limit freedom of expression to the extent that is reasonably and demonstrably justifiable.[48] I accept the Respondent’s submissions in this respect.
  3. [49]
    I am satisfied and find that the limitations on Mr Hulbert’s human rights in this respect is lawful, proportionate to the circumstances and compatible with the HRA because:
    1. (a)
      As a statutory instrument, Rule 228(b), is lawful and within the jurisdiction of the Acts and the Tribunal;
    2. (b)
      It is aimed at penalising conduct detrimental to the interests of racing[49];
    3. (c)
      The application of Rule 228(b) is a modest curtailment of his right of freedom of expression and is accordingly the least restrictive means by which to achieve the objects of the Acts;
    4. (d)
      In a professional racing context, curtailment of language such as ‘brain dead cunt’ and ‘I’ll fucking kill that cunt’ is reasonable and proportionate; and
    5. (e)
      The human right engaged has been balanced against the risk to the wider racing community if the unrestricted use of otherwise offensive language is not curtailed.
  4. [50]
    Accordingly, in making the above findings and decision, I am satisfied the Tribunal has made the correct and preferable decision.

Footnotes

[1]Application to review a decision filed 14 June 2021.

[2]In accordance with the Australian Rules of Racing 228 (b) which provides that a person must not engage in misconduct, improper conduct or unseemly behaviour.

[3]  Exhibit 1.7.

[4]  Exhibit 1.2.

[5]  Exhibit 1.1.

[6]  Agreed Statement of Facts, paragraph 8.

[7]  Section 100 (2) (a) and (b) of the Racing Act.

[8]  Rules are statutory instruments: section 101 of the Racing Act.

[9]  Section 240(1) (b) of the Racing Integrity Act.

[10]  Ibid, section 24.

[11]  Ibid, section 243(1).

[12]  Ibid, section 245.

[13]  Section 19 (c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

[14]  Ibid, section 20(2).

[15]  Ibid, section 24(1).

[16]  QRIC’s submissions dated 16 February 2022 at [20], [21].

[17]Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480 at [40].

[18]Johnson v Miller (1937) 59 CLR 467 at [489] (Johnson).

[19]  Stewards Report (exhibit 1.2).

[20]  Referring to the second last paragraph of page 5 and the top paragraph of page 6 of the Internal Review Decision (exhibit 1.7).

[21]  Ibid at page 5, paragraph 6.

[22]  Ibid at page 6, top paragraph.

[23]  Ibid at page 5, paragraph 9.

[24]  Ibid at page 6, second paragraph.

[25]  Audio recording (exhibit 1.1).

[26]  Agreed Statement of Facts, paragraph 6 (exhibit 4).

[27]  Applicant’s submissions to the Stewards Panel on 28 April 2021, paragraph 10 (exhibit 2).

[28]  Agreed Statement of Facts, paragraph 5.

[29]  Applicant’s submissions to the Stewards Panel on 28 April 2021, paragraph 11 (exhibit 2).

[30]  Applicant’s submissions to the Stewards Panel on 28 April 2021, paragraphs 14 and 16 (exhibit 2) and audio recording of Stewards Inquiry (exhibit 1.1).

[31]  Agreed Statement of Facts, paragraph 9.

[32]  The results of the cyber investigation referred to at page 5 of the decision was not in evidence at that review or subsequently (exhibit 1.7).

[33]  See for example, exhibit 2, paragraph 17.

[34]  Applicant’s submissions (exhibit 5).

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

[36]  Audio recording (exhibit 1.1).

[37]Jones v Acting Assistant Commissioner Horton [2021] QCAT 209, [92]-[99], where the word ‘cunt’ was used in an exchange between police officers in the workplace (Jones).

[38]  For example- DA v Deputy Commissioner Martin [2018] QCAT 10, where the Tribunal found that the police officer’s language (’Get off cunt’ and ‘Get off you little shit’) could readily be described as ‘disgraceful, improper or unbecoming an officer’ such as to constitute conduct as not meeting the standard of conduct the community reasonably expects of a police officer (at [15],[16],[45] (DA).

[39]Coleman v Power (2004) 220 CLR 1, Couchy v Birchley [2005] QDC 334

[40]  Submissions to Stewards Inquiry, paragraph 22 (exhibit 1.6).

[41]  Ibid, paragraph 17.

[42]  The oral evidence of both Mr Hulbert and Mr Mallyon at the Stewards Inquiry (audio recording: exhibit 1.1)

[43]  In oral evidence at the Stewards Inquiry (exhibit 1.1).

[44]  Ibid. Mr Hulbert stated there was no point as the Stewards always took the jockey’s side (exhibit 1.1).

[45]Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273 at [105]-[110].

[46]  Oral evidence by Mr Mallyon given at the Stewards Inquiry (exhibit 1.1).

[47]  Section 13(1) HRA.

[48]  Ibid, section 8, 58.

[49]  Section 101 Racing Act.

Close

Editorial Notes

  • Published Case Name:

    William Peter Hulbert v Queensland Racing Integrity Commission

  • Shortened Case Name:

    William Peter Hulbert v Queensland Racing Integrity Commission

  • MNC:

    [2022] QCAT 130

  • Court:

    QCAT

  • Judge(s):

    Member Lee

  • Date:

    12 Apr 2022

Appeal Status

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