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Schultz v Queensland Racing Integrity Commission QCAT 152
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Schultz v Queensland Racing Integrity Commission  QCAT 152
denis John Schultz
queensland racing integrity commission
Occupational regulation matters
22 April 2022
16 November 2021
(closing written submissions filed 17 December 2021, 28 January 2022 and 11 February 2022).
The charge that Denis John Schultz breached Australian Rules of Racing AR231(1)(b)(iii) is not substantiated.
PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – where licensed trainer responsible for horse – where complaint received about the horse – where licensed trainer charged and found guilty for breach of Australian Rules of Racing AR231(1)(b)(ii) and (iii) – where penalty imposed by the stewards – where trainer applied for an internal review – where decision upheld on internal review – where trainer applies for review – whether charges proven – whether the Australian Rules of Racing apply – whether the involvement of the stewards was beyond the boundaries of the functions of the Queensland Racing Integrity Commission
Australian Rules of Racing, AR 231
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 23
Racing Act 2002 (Qld), s 101
Racing Integrity Act 2016 (Qld), s 246
Statutory Instruments Act 1992 (Qld), s 7
Briginshaw v Briginshaw (1938) 60 CLR 336
Graham v Queensland Racing Integrity Commission  QCATA 125
Queensland Racing Integrity Commission v Kadniak  QCATA 102
J E Murdoch QC instructed by South Geldard Lawyers
A Freeman instructed by Queensland Racing Integrity Commission
REASONS FOR DECISION
- Denis Schultz is a licensed trainer of thoroughbred horses who was responsible for ‘Citiwyse x Lady Long Legs’, a three year old filly (‘the filly’).
- On 27 August 2020, the RSPCA received an anonymous report about the filly. This prompted the Stewards to visit Mr Schultz’s stables on 31 August 2020 at which time he was directed to have a vet attend the filly. Sadly, the filly was euthanised on 3 September 2020.
- Following a Stewards’ inquiry on 9 September 2020, Mr Schultz was found guilty of a breach of Australian Rules of Racing (‘the Rules’) AR231(1)(b) and his licence suspended for 12 months. The relevant AR231(1)(b) provides that a person in charge of a horse must not fail at any time to provide veterinary treatment to the horse where such treatment is necessary for the horse.
- Mr Schultz applied to the Commission for an internal review of the Steward’s decision but was unsuccessful in having the decision over tuned.
- Mr Schultz now applies to this Tribunal to review the Commission’s decision of 30 April 2021, to confirm a decision of the Stewards that Mr Schultz breached Australian Rules of Racing AR231 and to impose a penalty of suspension of his licence for 12 months.
- At the oral hearing before this Tribunal, the Commission amended the charge presented against Mr Schultz to identify a breach of AR231(1)(b)(iii). The particulars of the relevant charge are now set out below:
That between the 25th July 2020 to 1 September 2020, Denis John Schultz being a person in charge of the filly, identified as ‘Citiwyse x Lady Long Legs’, failed to provide veterinary treatment to the filly where such treatment was necessary for the filly.
Particulars of the failure-
The veterinary treatment was necessary because, on or about 26 July 2020 the filly suffered an injury which resulted in the filly being assessed by a veterinarian on 1 September 2020 as Grade 5/5 lame.
Between the 25th July 2020 to 1 September 2020 Denis John Schultz failed to take reasonable steps to obtain veterinary treatment for the filly.
- At the oral hearing, Mr Murdoch QC appearing for Mr Schultz raised an issue about jurisdiction and whether the Rules apply to the present matter. At the conclusion of the oral hearing, the parties were directed to file and exchange written submissions to address the issues to be determined by the Tribunal on review.
The Tribunal’s role on review
- Section 246 of the Racing Integrity Act 2016 (Qld) (‘RI Act’) confers jurisdiction on the Tribunal to review the Commission’s decision of 30 April 2021.
- In reviewing a matter in the Tribunal’s racing jurisdiction, the relevant disciplinary body who made the decision below, in this case the Stewards, are comprised of experts with relevant knowledge and experience and are therefore well placed to decide the importance of rules and when they are contravened. That said, upon the filing of an application for review in the Tribunal, Mr Schultz is entitled to review the Commission’s decision. In reviewing the Commission’s decision, the Tribunal has all of the functions of the decision-maker and conducts a fresh hearing on the merits to arrive at the correct and preferable decision.
- In assessing the evidence, the Tribunal applies the common law standard of proof being ‘on the balance of probabilities’. The Tribunal has a duty to bring the public perspective to bear and is bound to make its own decision on the evidence before it.
The jurisdiction issue – do the Rules of Racing apply here?
- The issue raised by Ms Murdoch QC appearing for Mr Schultz at the oral hearing, about the applicability of the Rules to the present matter is now set out below:
The interpretation of the rules as at the time of the incident, whether the rules applied to a filly that was registered for the studbook, not named and not subject to what’s known as a stable return.
- Put simply, it is argued by Mr Schultz that the filly was not involved in racing and the Steward’s involvement in the matter is beyond the boundaries of QRIC’s functions and it follows that the Stewards had no power to lay the charges. This raises a question of jurisdiction to be determined by reference to the relevant Rules and the construction of the relevant statute as a whole.
- The provisions of the Rules must be construed in the context of the legislative scheme established by those Rules as enacted at the relevant times. The legislative scheme applicable to the present matter is the RI Act that confers power on the Tribunal to review certain decisions, as provided under s 246.
- I accept the Commission’s submission that it has a broad range of functions as conferred on it under the RI Act and by application of the Racing Act 2002 (Qld) (‘Racing Act’) and the Rules of Racing themselves.
- Under the RI Act, the Commission is established to oversee the racing industry and is empowered to, amongst other things, license animals and participants that are suitable to be licensed for a code of racing, to conduct investigations into breaches of the RI Act or the Racing Act, to safeguard the welfare of any animal involved, whether directly or indirectly and whether lawfully or unlawfully in racing, to make decisions about disciplinary matters, to make all necessary inquiries it believes necessary to fulfill a function and to perform certain functions.
- Relevant to the present matter and subject to my finding about the jurisdiction issue discussed above, the suspension of Mr Schultz’s licence would be a ‘disciplinary matter’ and therefore falls within the scope of s 10 of the RI Act.
- The Commission’s broad functions is also apparent by operation of the Racing Act that requires a control body have rules of racing for the good management of each of its codes of racing and provides, amongst other things, that the entity may perform a function or take action including appointing stewards and penalising participants.
- Section 113A(2) of the Racing Act provides that without limiting subsection (1), in applying the Rules of Racing, a reference to the ‘Principal Racing Authority’, ‘control body’, ‘controlling body’ or ‘Racing Queensland’ in a rule about a matter relevant to the performance of a function of the commission is taken to be a reference to the commission.
- Turning to the applicability of the Rules of Racing, AR 3 requires that a person who takes part in any matter or race meeting coming within these Rules agrees to be bound by and comply with the Rules. The relevant AR 3 is now set out below:
Any person who takes part in any matter or race meeting coming within these Australian Rules agrees with Racing Australia and each PRA to be bound by and comply with them.
- In the present matter, Mr Schultz is clearly not a person who took part in a ‘race meeting’. The question that now arises is whether Mr Schultz is a person who took part ‘in any matter’ coming within the Rules and is therefore bound by and must comply with the Rules.
- In my view, Mr Schultz is a person who took part ‘in any matter’ coming within the Rules and is therefore bound by and must comply with the Rules. Mr Schultz is a trainer with many years’ experience and is responsible for relevant horses such as the filly.
- It is noncontentious that the filly was never registered for a name and that the filly was unbroken. The filly was, however, registered with the Australian Stud Book, a document kept by Racing Australia. Relevantly, a horse cannot be registered for racing without first being accepted into the Australian Stud Book.
- The Commission submits that for the purposes of the Stud Book the filly was not a registered horse. The Commission contends and I accept that the filly was an ‘eligible horse’ under the Rules. Relevantly, AR 26 requires, amongst other things, that a horse be registered with Racing Australia. The Rules clearly identify three different categories of horses such as ‘eligible horse’, ‘named horse’ and ‘unnamed horse’. An ‘eligible horse’ is a horse ‘eligible to be registered’ but has not been registered under the Rules. In my view AR 26 clearly contemplates that ‘registration of a horse’ includes an ‘eligible horse’, or a named or an unnamed horse.
- In the present matter, there is evidence before me that the filly was accepted for inclusion in the Stud Book and a Foal Identification Card issued. I accept the Commission’s uncontested fresh evidence contained in the affidavit of Timothy North that includes a copy of the Foal Ownership Declaration, Mare Return and DNA sample and microchipped identification for the filly. The evidence of Timothy North is relevant to the issue of whether the Rules apply to this matter. The Commission is therefore permitted to rely upon the affidavit of Timothy North in the proceedings and I order accordingly.
- As provided under the Stud Book, any person taking part in ‘any matter’ coming within the Rules is required to be bound by the Rules and the requirements of the Stud Book. For each horse owned or leased the person is ‘bound by the Rules of Racing’ and relevant to the present matter for the purposes set out in AR 34, the relevant authority has the jurisdiction to enforce those rules. On a fair reading of AR 34, the Rules apply to all eligible horses including, amongst other things and only if certain circumstances are established, the observation of ‘other horses for health and welfare reasons’.
- I find that the filly fell within the definition of ‘eligible horse’ and the Rules apply to the filly. The filly meets the requirements for registration under the Rules such that it was accepted for inclusion as a foal in the Australian Stud Book as required by AR 27. Further to that, the filly was branded and microchipped as required by AR 29 and the filly’s biological constitution was able to be derived because its DNA had been tested as required for inclusion in the Stud Book. In my view, the reference to the ‘care and welfare of horses’ in AR 231 includes an ‘eligible horse’ and an unnamed horse.
- I find that Mr Schultz as the owner of the filly that was a horse registered in the Stud Book was subject to and agreed to be bound by the Rules including AR 34. Relevantly, AR 34(6) provides that upon action being taken in certain circumstances, the eligible horse and its owner agree to be bound by the Rules for the purpose of the observation of the horse for health and welfare reasons.
- The Commission submits and I accept that the care and welfare of horses is clearly a matter which comes within the ambit of the Rules. Relevantly, AR 5 provides that a person breaches the Rules if they are required to do something under a rule and does not do it or is prohibited from doing something under a rule but does it. Further to that, AR 231 prohibits a person from doing something and a person in charge of a horse who fails to provide veterinary treatment to the horse where such treatment was necessary is in breach of the Rules and may be subject to penalty.
- I find that Mr Schultz’s conduct does come within the ambit of the Rules in particular AR 231. Further to that, I find that the Rules applied to both Mr Schultz as an owner of the filly and as a participant in racing and that the filly is an eligible horse for the purposes of the Rules.
- Mr Schultz’s submission that the involvement of the Stewards in this matter is beyond the boundaries of the Commission’s functions is rejected. As discussed above, the filly was eligible to be registered with Racing Australia to race and was registered in the Stud Book. Mr Schultz was the owner of the filly and a participant in racing.
- In my view, the Commission and therefore the Stewards acted within the broad powers conferred upon it under the Rules and the relevant RI Act to investigate a complaint received about the filly and to make decisions about a disciplinary matter as a consequence of any breach of the Rules.
What is the correct and preferable decision?
- The Commission submits and I accept that the purpose of AR 231 is to ensure that the care and welfare of horses is taken seriously by those in charge of a horse who have an obligation to provide such care to horses under their control.
- Further to that, the Commission submits that the rule is intended to prevent conduct as is demonstrated in this case, whereby a horse is left for a period of time with an injury that caused pain and discomfort to the horse without receiving treatment from a vet. The rule is said to be designed to ensure that those in charge of horses are proactive with respect to the care and welfare of their horses. The Commission submits that the rule seeks to uphold the integrity of the racing industry in Queensland in ensuring that animal welfare is of paramount importance.
- In the present matter the filly sustained an injury on 13 June 2020 and further injury on 26 July 2020. The Commission submits that the charge being considered by the Tribunal relates to the re-injury which occurred on or about 26 July 2020 and the failure to provide veterinary treatment to the filly for that particular injury.
- The Commission contends that the evidence before the Tribunal demonstrates that Mr Schultz for a period of up to 5 weeks, made a deliberate decision to treat the filly by way of his own methods such as, the administration of intermittent phenylbutazone at varying doses, rather than having the filly examined by and its true condition diagnosed by a veterinarian.
- The Commission argues that Mr Schultz made a ‘deliberate choice’ not to have the filly examined and treated by a veterinarian in circumstances where the treatment was necessary because the injury caused the horse pain and discomfort. This is evidenced, as submitted by the Commission, by the fact that the eventual examination of the filly by a veterinarian, Dr Yasmine Flohr resulted in the filly being euthanised.
- In responding to the charges, Mr Schultz says that he had been taking steps to treat the filly following an injury on 13 June 2020. Further to that, Mr Schultz says that he had arranged for a specialist equine veterinarian (Dr Kris Thomson) to call to examine the filly on 3 September 2020. Mr Schultz says, amongst other things, that the Tribunal could not be comfortably satisfied that the charge has been made out.
Consideration of the evidence
- In the present matter it is non-contentious that the filly injured her left mid pastern on 13 June 2020. Further to that, Mr Schultz obtained penicillin from a Veterinary Clinic at that time and administered it to the filly.
- There is evidence before the Tribunal in relation to the action taken by Mr Schultz with respect to the filly after she was re-injured on or about 26 July 2020 that in my view demonstrates that Mr Schultz did take steps to treat the filly and arrange for the filly to be examined by a veterinarian.
- Mr Schultz’s evidence about the filly is that he was aware the horse was sore and he gave the filly a non-steroidal, anti-inflammatory drug known as ‘Bute’. Mr Schultz already had the drug from a previous occasion for another horse. Mr Schultz administered the drug to the filly on 31 August 2020.
- The steps taken by Mr Schultz in relation to addressing the filly’s injury included the administration of Bute over approximately a week at about 10ml per day, decreased back to 5 ml per day for two to three days and then increased back to 10ml per day when the filly became worse.
- Mr Schultz was questioned at the hearing about his decision to administer Bute to the filly. Mr Schultz accepted when questioned at the hearing that the drug (Bute) can mask the underlying injury or problem that is causing the pain or lameness in a horse. Mr Schultz said that in his years’ of experience he did know what was wrong with the filly. Mr Schultz said that the filly had an abscess in the foot referring to the horse as having a bruise from galloping around.
- I accept Mr Schultz’s evidence given in the review proceeding about the condition of the filly after it sustained the second injury on 26 July 2020. Mr Schultz says that the filly was slightly lame when the second injury was first sustained but was very sore and walking on the point of its toe as of 30 August 2020. Mr Schultz’ evidence about the condition of the filly is consistent with what he told the stewards on 31 August 2020. Relevantly, when the stewards attended Mr Schultz’s property on 31 August 2020, Mr Schultz told the stewards that after breaking out of its paddock and running around with other horses, the filly had ‘pulled up lame like this’ referring to the condition it was in as of 31 August 2020.
- I accept Mr Schultz’s evidence given at the hearing that the condition of the filly as of 31 August 2020 was not the same as it was when it was injured on 26 July 2020.
- Mr Schultz accepted when questioned that on 31 August 2020 the filly was unable to bear weight on the left-front foreleg and was presenting as lame. Mr Schultz also accepted when questioned that the filly might have to be put down if it did not get any better. Mr Schultz maintained his evidence that he did not know what the injury was and that is why he was, as stated, ‘getting Thompson [Dr Kris Thompson, a vet] in…to…work that out’.
- In my view, it matters not that the drug Bute was not prescribed for the filly following an injury on 26 July 2020. There is evidence before me from the veterinarian, Dr Flohr, about the condition of the filly and Mr Schultz’s administration of a drug (Bute) to the filly. Dr Flohr attended Mr Schultz’s property to examine the filly on 1 September 2020 and determined the injury as severe, Grade 5 out 5 lame and reports ‘swelling from pastern through to fetlock, old mid-pastern wound from wire injury sustained in June. Suspect tendon infection and damage’. Dr Flohr was available for cross-examination at the oral hearing before this Tribunal.
- Dr Flohr said that Mr Schultz had been a client since 2017 and seen on regular intervals and had, as stated, ‘a bona fide client relationship’ which meant that they were able to dispense medication under a verbal consultation. Dr Flohr confirmed that Mr Schultz obtained penicillin for a horse and she had no hesitation in dispensing the drug to Mr Schultz. Dr Flohr confirmed during cross-examination that she was aware that Mr Schultz was in possession of Bute paste.
- Dr Flohr agreed during cross-examination that administering Bute paste is veterinary treatment referring to it as ‘prescribed medication’.
- Dr Flohr found that the filly was showing signs of significant lameness. Dr Flohr accepted when questioned that the filly was in good physical condition. Dr Flohr confirmed that she was happy for the filly’s owner to use Bute past. When asked if she had prescribed Bute paste, Dr Flohr said ‘No, they already had some on hand”.
- I accept Dr Flohr’s evidence about the administration of a drug (Bute) to the filly, in particular that the drug (Bute) is a prescribed medication and she was happy for Mr Schultz to give the drug.
- It matters not whether Mr Schultz confirmed with Dr Thompson that she was coming to see the filly on 3 September 2020. Mr Schultz’s evidence is that he spoke to his friend Mr Ian Seeds because he knew Dr Thompson was attending his (Mr Seeds) stables on 3 September 2020. Mr Schultz asked Mr Seeds to get Dr Thompson to contact him (Mr Schultz). Mr Schultz maintained his evidence given to stewards in the hearing below about the arrangement made with Mr Seeds, in the oral hearing before this Tribunal. Mr Schutz’s evidence is that he thought Mr Seeds knew what the problem was because he thinks he had talked to him about it.
- Senior Steward Mr Adams gave evidence for the Commission in the oral hearing. Mr Adams accepted when questioned that Mr Seeds and Dr Thompson corroborated Mr Schultz’s evidence given to the stewards in the hearing below about the arrangements for Dr Thompson to see the filly.
- I accept Mr Schultz’s evidence that he had a conversation with his friend Mr Seeds indicating that he wanted Dr Kris Thompson to come and see him when she was at Mr Seed’s property on 3 September 2020.
- I am not satisfied that the evidence supports a finding that Mr Schultz failed to provide veterinary treatment to the filly which was necessary and that such failure resulted in the filly being euthanised. Indeed, Dr Flohr accepted when questioned at the hearing that further investigation of the filly’s injury was required such as a referral to a specialist for arthroscopic lavage and intensive treatment. Dr Flohr also recommended the filly be euthanised due to the severity of discomfort and poor prognosis for a return to pain-free function. The cost of the specialist investigation and treatment for the filly could have ranged from $5,000 to $10,000.
- In my view Mr Schultz has taken steps to treat the filly following the reinjury on 26 July 2020. Mr Schultz was administering Bute to the filly and made arrangements for the filly to be seen by a veterinarian, Dr Thompson. Mr Schultz’s evidence about the steps taken by him to manage the filly’s injury is supported by his friend and former licensed trainer, Margaret Stafford. Ms Stafford’s evidence is that the filly completely healed from the first injury on 13 June 2020 and when the re-injury occurred she ‘guessed’ the filly had got a stone bruise’. Ms Stafford said that she commenced administering Bute to the filly and this continued for a couple of weeks. Ms Stafford said that in her opinion ‘they’ referring to herself and Mr Schultz, were doing everything they could for the filly. I accept Ms Stafford’s evidence.
- It is open for me to find on the evidence that at the relevant time the filly was severely lame but was otherwise in good condition. Ms Stafford’s observations about the filly is that she was in good condition, eating well and playing with other horses over the fence and she was not observed to be in any pain.
- Dr Flohr also gave evidence about the condition of the filly. When asked by the stewards in the hearing below whether the horse was in severe discomfort when she examined it, Dr Flohr said that the filly was otherwise bright, alert, responsive and still trying to as stated ‘trot up and down the fence and carry on’. Dr Flohr said the filly was ‘not dull, depressed, lethargic’ but was 5/5 lame.
- This is not a case where the filly was left for a period of time with an injury without treatment. Further to that, this is not a case were the person in charge of the horse has failed to take the care and welfare of the horse seriously. On balance, I am satisfied that Mr Schultz took steps to treat the horse by administering Bute and arranging for a vegetarian to see the filly.
- I am not satisfied based on the evidence before me that Mr Schultz failed to provide veterinary treatment to the filly in circumstances were such treatment was necessary for the filly.
- The correct and preferable decision is to set aside the Commission’s decision of 30 April 2021 confirming the decision of the Stewards who found Mr Schultz breached the AR 231(1)(b)(ii) and (iii) and the penalty of suspension of Mr Schultz’s licence for 12 months and by way of a substituted decision order that the charge that Denis John Schultz breached Australian Rules of Racing AR231(1)(b)(iii) is not substantiated. I order accordingly.
Commission’s decision of 30 April 2021, see Exhibit 1, p 40.
Application for review filed 5 May 2021. Decision of the Commission was stayed by order of the Tribunal on 26 May 2021.
Tribunal’s Directions dated 16 November 2021 and 17 January 2022. See also the respondent’s outline of submissions filed 17 December 2021, applicant’s external review submissions filed 28 January 2021 and respondent’s submissions in reply filed 11 February 2022.
Queensland Racing Integrity Commission v Kadniak  QCATA 102, .
QCAT Act, s 19 and s 20.
Briginshaw v Briginshaw (1938) 60 CLR 336.
Transcript, p 90, L 37.
Applicant’s (external review) submissions filed 28 January 2022, p 9.
See s 101 of the Racing Act 2002 (Qld) and s 7 of the Statutory Instruments Act 1992 (Qld).
It was accepted at the oral hearing that the Rules as at 1 April 2020 apply. See also respondent’s submissions filed 11 February 2022 and applicant’s submissions filed 28 January 2022.
Graham v Queensland Racing Integrity Commission  QCATA 125, .
Respondent’s submissions in reply filed 11 February 2022, .
RI Act, s 10.
See schedule 1of the Racing Act.
See AR 27.
Respondent’s outline of submissions filed 17 December 2021, p 8. See the term ‘registered’ as defined under the Stud Book and the reference to the horse being ‘named and accepted under that name by Racing Australia to compete under the Rules of Racing’. See also AR 27.
See Dictionary under the Rules.
See application for miscellaneous matters (for leave to adduce fresh evidence) filed by the respondent on 20 December 2021.
Affidavit of Timothy North filed 20 December 2021.
Application for miscellaneous matters (for leave to adduce fresh evidence) filed by the respondent on 20 December 2021 for leave to rely upon fresh evidence pursuant to s 28(4) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and see Tribunal’s Directions dated 17 January 2022 and the applicant’s response (not objecting) to the Commission’s application for fresh evidence, by letter dated 31 January 2022.
See section 1 of the rules of the Australian Stud Book.
Ibid, see also Respondent’s outline of submissions filed 17 December 2021, p 8.
See AR 28.
Applicant’s submissions filed 28 January 2022, p 9.
See dictionary under the Rules.
Respondent’s outline of submissions filed 17 December 2021, p 6.
Applicant’s (external review) submissions filed 28 January 2022, p 5.
Ibid, p 7.
Respondent’s submissions in reply filed 11 February 2022, .
Transcript, 1-66, L32 to 1-67, L1.
Transcript, 1-67, L3-26.
Ibid, 1-67, L40 to p 68, L17.
Exhibit 1, tab 11, affidavit of Denis Schultz, .
Exhibit 3, video footage of 31 August 2020.
Transcript, 1-70, L1-3.
Exhibit 1, p 6.
Ibid, 1-40, L35-40.
Ibid, 1-49, L10-21.
Respondent’s submissions filed 17 December 2021, p 21.
Transcript, 1-74, L7.
See Transcript 1-73, L13 to 47.
Transcript, 1-70, L19 and 1-73, L 13.
Transcript 1-60, L 19-24.
Ibid, p 23.
Transcript, 1-35, L 35.
Transcript 1-96, L37.
Ibid, 1-97, L 23.
Exhibit 1, tab 12, affidavit of Margaret Stafford,  and see transcript 1-31, L37.
Exhibit 2, p 47.
- Published Case Name:
Schultz v Queensland Racing Integrity Commission
- Shortened Case Name:
Schultz v Queensland Racing Integrity Commission
 QCAT 152
22 Apr 2022