Thomas v Queensland Racing Integrity Commission
[2023] QCAT 106
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- Unreported Judgment
- Thomas v Queensland Racing Integrity Commission[2023] QCAT 106
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Thomas v Queensland Racing Integrity Commission[2023] QCAT 106
Thomas v Queensland Racing Integrity Commission[2023] QCAT 106
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Thomas v Queensland Racing Integrity Commission [2023] QCAT 106 |
PARTIES: | Nathan Thomas (applicant) v Queensland racing integrity commission (respondent) |
APPLICATION NO/S: | OCR 063-21 |
MATTER TYPE: | Occupational regulation matters |
DELIVERED ON: | 21 March 2023 |
HEARING DATE: | 6 September 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Member Paratz AM |
ORDERS: | The Internal Review decision made on 5 March 2021 is confirmed. |
CATCHWORDS: | ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – where the meaning of improper riding was discussed – where a jockey sought to move his horse across to a favoured position – where two horses buffeted against each other – whether a dangerous or potentially dangerous situation was created Australian Rule of Racing, 131(a) Schofield: Racing Appeals and Disciplinary Board Victoria, 26 September 2014 Holland: Racing New South Wales Appeal Panel, 5 October 2018 Bullock: New South Wales Appeal Panel, 4 February 2022 Racing Queensland Ltd v Cullen [2011] QCAT 393 |
APPEARANCES & REPRESENTATION: | |
Applicant: | P. O'Sullivan of Shotters Lawyers, Newcastle, NSW |
Respondent: | C. Johnstone of Counsel, instructed by the Queensland Racing Integrity Commission |
REASONS FOR DECISION
- [1]Mr Thomas was found guilty of a charge of improper riding in a horse race held at the Sunshine Coast Turf Club on 5 February 2021, at a Steward’s enquiry conducted that day, and a penalty of a three week suspension was imposed.
- [2]Mr Thomas sought an Internal Review of the Steward’s decision by the Queensland Racing Integrity Commission (the Commission), which confirmed the original decision on 5 March 2021.
- [3]Mr Thomas filed an Application to review the Internal Review decision on 10 March 2021.
- [4]The Internal Review decision was stayed by an Order of the Tribunal on 10 March 2021 pending the final determination or withdrawal of the Application to review a decision.
- [5]The matter was heard by me on 6 September 2022, and I reserved my decision. These are my Reasons.
The charge
- [6]Mr Thomas was the rider of a horse named Duble Gaze in Race 6 at the Sunshine Coast Turf Club on 5 February 2021.
- [7]Ms Stephanie Thornton was the rider of another horse in the race named Parangas.
- [8]After the race concluded, Mr Thomas attended a Steward’s enquiry where he was found guilty of a charge of improper riding pursuant to Australian Rule of Racing 131(a) which provides as follows:
A rider must not, in the opinion of stewards, engage in careless, reckless, improper, incompetent or foul riding.
- [9]The specifics of the charge were described by the Stewards at the enquiry as being that:[1]
The improper riding being that you, as the rider of Duble Gaze, in Race 6 here tonight at the Sunshine Coast Turf Club on 5 February 2021, did ride in an improper manner, in that you directed your mount, Duble Gaze, inwards near the 1200 metres, initiating contact with Parangas in an attempt to force that horse towards the fence.
You then continue to direct your mount inwards for approximately 300 m, to deliberately force Parangas towards the fence, placing that horse and its rider in a dangerous position, on heels, causing jockey S Thornton to steady away from the heels of Alpendurada, causing - sorry, to steady Parangas away from the heels of Alpendurada. As a result of your actions, Parangas lost its rightful running.
- [10]The Stewards suspended Mr Thomas’s licence for three (3) weeks to commence at midnight on 14 February 2021 and to expire at midnight on 7 March 2021.
The hearing
- [11]The commission called evidence from James Williamson, a Racing Steward; and from Ms Thornton; and provided video of the race from two different positions, and a transcript of the proceedings of the Steward’s enquiry on 5 February 2021.
- [12]Mr Thomas gave evidence on his own behalf.
Mr Williamson
- [13]Mr Williamson said that he was the Chairman of Stewards for the race. He identified two videos of the race, one of which was a head-on view, and the other which was a lateral view, and described what he saw as happening in the videos.
- [14]Mr Williamson said that Video 1 was taken from the tower at the 800 metre mark. He described the actions in Video 1 (the head on view) at various times in seconds, as follows:
15 seconds – front on view
21 seconds – the head of Duble Gaze turns in
22 seconds – contact between the shoulders of Duble Gaze and Parangas
23 seconds – Ms Thornton’s racing room reduced
25 seconds – Ms Thornton being forced to the heels of the horse in front
25 seconds – Mr Thomas moved out
28 seconds – Mr Thomas’s horses head continuing to be turned in
34 seconds – Ms Thornton turns her horses head out, and cannot remain there, she steadies her mount, the horse lifts its head in the air, and the rider lifts her hand
36 seconds – the 900 metre mark: Mr Thomas assumes Ms Thornton’s prior position
- [15]Mr Williamson said that Video 2 was taken from the main tower at the judges box, and was televised to the Sky Channel. He described the actions in Video 2 (the lateral view) as follows:
44 seconds – the 1200 metre mark: the front feet of Ms Thornton’s horse (number 4) are outside horse 5, and are following horse 7
52 seconds – Ms Thornton’s horse is next to Mr Thomas’s horse
1 minute – approaching the 900 metre mark: Ms Thornton is trying to follow
1 minute 1 second – Ms Thornton is steadying her horse
1 minute 3 seconds – Ms Thornton has lost a length
- [16]Mr Williamson said that Ms Thornton was being buffeted for 300 metres, and that this could be seen at the 21 second time at the 1200 metre mark on Video 1; and that buffeting can be seen at the 27 second time.
- [17]He described buffeting as being dangerous.
- [18]Mr Williamson said that Ms Thornton was placed in a dangerous predicament by having to follow the heels of the horse in front as she got to the fence, and there was a danger of the horses legs contacting, as the front legs of her horse were next to the hind heels of the horse in front.
- [19]He said that riders want to be ‘one-off the fence’ initially, as the horse has to travel a shorter distance, and that changes in the home straight.
- [20]Mr Williamson said that he considered that Ms Thornton had attempted to hold her position when there was resistance from Mr Thomas which goes beyond competitive, and that the actions of Mr Thomas were deliberate and therefore improper.
Ms Thornton
- [21]Ms Thornton said that she now used the married name of Ms Thompson. She was asked about her evidence at the Steward’s enquiry where she described the incident as follows:[2]
Ms Thornton: Yes. As stated, I made – I established a position one off the rail, which – I was intending to hold there. I was, sort of, right on the back of the horse in front of me, with Michael Rodd to my inside, but I wasn’t in a position to go back to the fence behind his heels at the time and I didn’t want to. I wanted to stay one-off, which I am entitled to do, and there was continuous pressure for a long time from Nathan (Thomas) outside me. It wasn’t just testing the waters. And eventually I had to check my mount off Michael Rodd’s heels to get to the fence.
Mr Williamson: Alright. Now, what distance of the race – how far – what period of time would you say that this occurred over?
Ms Thornton: I’d say it was over at least 150 metres, but I’d have to watch the film to confirm that.
- [22]Ms Thornton said that she wanted to be one-off because her horse was a big mare, and she wanted to have her in a position where ‘I could give her daylight’.
- [23]She was asked about her evidence at the Steward’s enquiry where she described contact between the horses as follows:[3]
Unidentified speaker: Well, to Steph Thornton, was – did you attempt to resist to go down to the fence?
Ms Thornton: Yes. I actually – our horses made contact a number of times. Mine got off balance, particularly, on one occasion when Nathan (Thomas) gave me a really good bump. I never intended on going to the fence.
Unidentified speaker: And you were forced down to the fence?
Ms Thornton: Yes
- [24]Ms Thornton said that their horses made contact a number of times, and brushed, but she couldn’t put a number on it, but that Mr Thomas ‘wasn’t just testing the waters’. She said that she yelled to Mr Thomas, and told him to ‘Fuck off’ numerous times.
- [25]She said that her mare was not coping with the bumping, and that ‘it wasn’t by choice’ that she ended up on the fence.
- [26]In cross-examination, Ms Thornton agreed that Mr Thomas’s horse was over-racing, and that he was trying to steady his horse on multiple occasions.
- [27]She said that she was taken off her line, and tried to take it back, and the horses bumped and brushed.
- [28]It was put to Ms Thornton that she called out to Mr Thomas that ‘you can’t take my run’. She said that she did not recall saying that, but had yelled ‘No’ and told Mr Thomas to ‘Fuck off’.
- [29]In re-examination, Ms Thornton said that in her observation Mr Thomas was ‘in a battle with his horse’, and he was trying to find cover to get his horse to settle.
Mr Thomas
- [30]Mr Thomas said that he had ridden Duble Gaze in two races previously and on some trackwork, and that she had over-raced in Beaudesert, and had got herself in a dangerous position.
- [31]He described over-racing by a horse as being very zealous, or keen or fierce, or trying too hard, and was also described as erratic or generous.
- [32]He said that the horse started to over-race, and that there were no firm instructions on how to ride her. He said that the horse never gave up on over-racing for more than half the race, and was definitely over-racing for the whole 300 metres being discussed.
- [33]He said that he tried to move Ms Thornton to the rails when it was safe to do so, and that she responded by pushing back.
- [34]He said that ‘we race close and tight’, and that he could see that Ms Thornton did not have a rider inside her, and that she was not in danger of making contact with the heels of the horse in front.
- [35]He said that the first contact between the horses was at the 1200 metre mark. He described the contact as touching or brushing, and that it was not uncommon to see contact between horses.
- [36]He said that Ms Thornton had taken her line back, and that there was nothing wrong with that, it was competitive riding. He said ‘we were racing neat’, and he couldn’t move Ms Thornton closer to the fence, and she pushed back.
- [37]He said that his horse was continuing to over-race, and that the video showed ‘an example of a rider having great difficulty with a horse’.
- [38]He said that Ms Thornton was in no danger, and he did not see any danger between her and the horse in front.
- [39]He said that he didn’t think there was much buffeting, and that early on he tried to move Ms Thornton to the fence but she then ‘did the same to me’.
- [40]He agreed that there was contact when he attempted to shift Ms Thornton to the rails at 1200 metres, as she ‘stood her position’ and there was contact.
- [41]Mr Thomas disagreed completely as to the need for Ms Thornton to ‘check’ her horse.
Submissions for the Commission
- [42]Counsel for the Commission submitted that there were two risks in the way the race was run – one was from the buffeting, and the other was whether Ms Thornton had to ‘check’ her horse to avoid clicking heels with the horse in front.
- [43]He submitted that for the conduct to be ‘improper’ there has to be an element of intention to create danger, and referred to the decision of the Racing Appeals and Disciplinary Board of Victoria in the matter of Schofield[4].
- [44]It was submitted that if the tribunal was not satisfied actual danger was created, it could accept that there was potential danger.
- [45]It was submitted that Schofield was authority that it was relevant to consider the state of mind of the rider, and that Mr Thomas wanted the one-off position and wanted to go there.
Submissions for Mr Thomas
- [46]It was submitted for Mr Thomas that the Tribunal could not be satisfied that Mr Thomas directed his mount in for 300 metres.
- [47]It was submitted that having commenced from the widest barrier, Mr Thomas wanted to move across; that Ms Thornton was in a favoured one-off position, and there was space between her and the rails; and that in Mr Thomas’s mind there was no danger as Ms Thornton could have moved inside, but she resisted, and moved in but then went back to her run; and that the horses ran neatly and contact was made, which is often made in a race.
- [48]It was submitted that the video shows it was clear that Ms Thornton was not behind the horse in front when she steadied her own horse, and that there was no danger, and referred to the decision of the Racing New South Wales Appeal Panel in Holland[5], where the actions of the rider were held to have put the other rider’s mount in some minor danger, but not great danger, and was not sufficient to satisfy the test of improper riding set out in Schofield.
- [49]It was submitted that the video does not support a continuous directing inwards by Mr Thomas for 300 metres, and that there was nothing to show that after the initial contact he persisted in directing his mount inwards.
- [50]It was submitted that this race was an illustration of competitive riding, which did not give rise to danger.
- [51]It was submitted that the charge did not say that Ms Thornton had to ‘check’ her horse, but to merely ‘steady’ it; that checking is more severe, and that jockeys steady every day, which doesn’t give rise to a charge of improper riding; and referred to the decisions in Bullock[6] (where one jockey elbowed the other) and Cullen[7] (where moving the position of a horse from a five wide position to a four wide position was held not to be shown to be careless riding to the required standard).
Discussion
- [52]There is no substantial disagreement in this matter as to what occurred during the race. The essential question is whether the riding of Mr Thomas was ‘improper riding’ or simply competitive riding.
- [53]It is common ground that the two horses bumped against each other to some extent, and that this occurred when Mr Thomas was trying to move his horse across and into a one-off position from the fence.
- [54]Mr Thomas contends that his riding did not place Ms Thornton in a dangerous situation, as she had room to move into the fence position, and that the bumping between the horses only occurred because Ms Thornton resisted his attempt to move into his desired position.
- [55]Mr Thomas contends that it was a situation of ‘racing neat’, and expressed the view that ‘we race close and tight’.
- [56]Ms Thornton said that she resisted moving across, as she wanted to stay one-off which she was entitled to do, and that she never intended going to the fence, but was forced to do so by Mr Thomas.
- [57]In order to move across to the fence, Ms Thornton said that she had to steady her horse, which caused her to drop back a length behind the horse in front.
- [58]Mr Williamson, the Chief Steward for the race, said that the buffeting was dangerous in itself, and that Ms Thornton was further placed in a dangerous predicament by having to follow the heels of the horse in front as she got to the fence, as there was a danger of the horse’s legs contacting, as the front legs of her horse were next to the hind heels of the horse in front.
- [59]It is clear that Mr Thomas was determined and deliberate in seeking to move his mount closer to the fence.
- [60]Mr Williamson did not make any criticism of Ms Thornton for staying in her position when Mr Thomas was trying to move her across to the fence, and said that she was entitled to remain there.
- [61]The effect of Mr Thomas’s conduct was that the horses did come into contact by buffeting with each other. Mr Williamson assesses the horses were buffeting for up to 300 metres, which he described as very unusual.
- [62]The meaning of the expression ‘improper riding’ was discussed in Schofield by the Chair of the panel, Judge Lewis, who said:[8]
The initial question in this appeal is whether the Stewards have satisfied the Board that the appellants riding was improper, rather than an example of competitive riding. The standard of proof is that laid down in the well-known case of Briginshaw v Briginshaw, that is, the Board must be comfortably satisfied that the charge has been proved, taking into account inter alia the gravity of the charge and the consequences which flow from the conviction.
There is no definition of ‘improper riding’ in the Rules of Racing. However, the Board accepts Dr Pannam’s characterisation that it involves an element of deliberate or intentional conduct which creates danger or potential for danger.
The stewards took the view that in all the circumstances, the Appellant’s riding took him outside the boundaries of competitive riding and represented an egregious example of improper riding.
The appellant argues that what he did was simply an example of competitive riding involving himself and an experienced rider, Ms Payne, who he has alleged for the first time today was partly responsible for the first bump and fully responsible for the second bump.
It is clear that the Rules of Racing as they apply to riders are primarily about safety. They are not penal. The safety of horse and rider in the conduct of racing is paramount. Riders have an obligation to observe the rules of safety which include not to interfere with the right of another horse to its running, as well as the rules under which they ride and are licensed.
The standard of care is that of a rider of reasonable competence, skill and ability. Whether a rider rides improperly will depend upon the extent to which that rider departs from the standard of care imposed on him.
The question of whether a right is improper will be answered by an examination of and an evaluation of all the circumstances of the case.
- [63]Where the evidence of Ms Thornton conflicts with that of Mr Thomas, I prefer the evidence of Ms Thornton. I accept the evidence of Mr Williamson.
- [64]The distinction between competitive riding and improper riding is one of judgement. Horse racing is by nature competitive, and the horses and riders travel at high speed in close proximity. There is an accepted level of danger in that situation. There is however a line between conduct of a rider that is safe within the nature of horse racing, and conduct that ‘crosses the line’ to be potentially, or actually, dangerous.
- [65]Once conduct of a rider involves deliberate or intentional conduct which creates danger or potential for danger, it becomes improper riding as described by Judge Lewis in Schofield.
- [66]I have closely viewed both videos of the race on many occasions. I have been aided by the evidence of the witnesses at the hearing, and their descriptions of what is shown in the videos.
- [67]Both Mr Thomas and Ms Thornton were aware at the time that Mr Thomas was trying to force Ms Thornton to change her position, and that Ms Thornton was maintaining her position.
- [68]Mr Thomas was aware that his horse was over-racing at the time, which he described as behaving in an erratic way, and that he was having great difficulty with the horse, which was something he should have been cautious about in bringing his horse close to Ms Thornton’s horse.
- [69]Mr Thomas rode his horse so close to Ms Thornton’s horse that they came into contact, and buffeted, for a distance which I accept was at least over 150 metres as recalled by Ms Thornton, and up to 300 metres as described by Mr Williamson.
- [70]Mr Thomas continued to attempt to force Ms Thornton across, despite the horses buffeting against each other.
- [71]I am satisfied that Mr Thomas’s conduct ‘crossed the line’ from competitive riding, by his deliberate action in attempting, and continuing to attempt, to force Ms Thornton to the fence, in that he created actual danger by the buffeting of their horses, and potential danger of Ms Thornton clipping the heels of the horse in front if she were to move across.
- [72]The riding of Mr Thomas on the day therefore constituted ‘improper riding’ as found by the Internal Review decision.
- [73]No challenge was raised as to the penalty initially imposed by the Stewards and confirmed by the Internal Review decision.
- [74]I confirm the Internal Review decision made on 5 March 2021.
Footnotes
[1] Transcript of the Steward’s enquiry, P 9, L 21.
[2] Transcript of Steward’s enquiry, P 2 L 31.
[3] Ibid P 4 L 31.
[4] Racing Appeals and Disciplinary Board Victoria), 26 September 2014 – Jockey: Chad Schofield.
[5] Racing New South Wales Appeal Panel, 5 October 2018: Jockey Holland.
[6] Racing New South Wales Appeal Panel, 4 February 2022: Jockey Bullock.
[7] Racing Queensland Ltd v Cullen [2011] QCAT 393.
[8] Op Cit, p 2.