Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2023
  4. Waldron v Queensland Racing Integrity Commission - [2023] QCAT 191

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Waldron v Queensland Racing Integrity Commission[2023] QCAT 191

Waldron v Queensland Racing Integrity Commission[2023] QCAT 191

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Waldron v Queensland Racing Integrity Commission [2023] QCAT 191

PARTIES:

Benjamin waldron

(applicant)

v

queensland racing integrity commission

(respondent)

APPLICATION NO/S:

OCR278-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

16 May 2023

HEARING DATE:

20 March 2023

HEARD AT:

Brisbane

DECISION OF:

Member D. Katter

ORDERS:

The decision of the Respondent dated 1 July 2019 is set aside in respect of penalty and in substitution it is ordered that no penalty is imposed on the Applicant for contravention of rule 178 of the Australian Rules of Racing.

CATCHWORDS:

PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – OTHER PROFESSIONS, TRADES AND CALLINGS – where administration of prohibited substance – where consideration of factors related to penalty – whether appropriate penalty includes suspension

Queensland Civil and Administrative Tribunal Act 2009

Australian Rules of Racing

Morrisey v Queensland Racing Integrity Commission [2018] QCAT 161

Queensland All Codes Racing Industry Board v Thomas [2016] QCATA 83

Queensland Racing Integrity Commission v Scott [2019] QCATA 121

R v Morrison [1999] 1 Qd R 397

Wallace v Racing Queensland [2007] QDC 168

APPEARANCES &

REPRESENTATION:

 

Applicant:

M. White instructed by P. Boyce, Solicitor, Butler McDermott Lawyers

Respondent:

D. Payard instructed by M. Johnston, in house solicitor for the Respondent

REASONS FOR DECISION

  1. [1]
    The Applicant had been a trainer of racehorses for some 17 years[1], based in Roma, Queensland[2]. 
  2. [2]
    In 2017, the Applicant was a licensed trainer with the Respondent[3]. 
  3. [3]
    The horse, Reverse Logic, was trained by the Applicant for some 11 or so weeks in 2017, before being nominated for a race at Rockhampton, Queensland, on 13 July 2017[4]. 
  4. [4]
    Reverse Logic won the Benchmark 55 Handicap at Rockhampton on 13 July 2017.  This was the first start for this horse under the Applicant’s training. 
  5. [5]
    After the race on 13 July 2017 a sample of urine was taken from Reverse Logic. 
  6. [6]
    A urine sample was received at the Racing Science Centre on 14 July 2017. The consignment number of that sample matched the consignment number on the sample as recorded after the race on 13 July 2017.   
  7. [7]
    The Racing Science Centre tested the urine sample and found the sample to have a cobalt reading of greater than 200 micrograms per litre, with a ‘measurement of uncertainty of plus or minus 8 micrograms per litre at greater than or equal to 99.7 percent confidence’. 
  8. [8]
    Another sample from Reverse Logic was sent to Racing Analytical Services in Melbourne, Victoria.  That sample was received with the seal intact on 1 August 2017.  The result of the analysis at Racing Analytical Services was that the sample had cobalt at greater than 200ugl. 
  9. [9]
    An inquiry was conducted by the Stewards on 18 April 2018. 
  10. [10]
    On 1 July 2019 the Stewards by a written report ‘issued a charge pursuant to AR178’:

“Subject to AR178G, when any horse that has been brought to a racecourse for the purpose of engaging in a race and a prohibited substance is detected in any sample taken from it prior to or following its running in any race, the trainer and any other person who was in charge of such horse at any relevant time may be penalised.

The specifics of the charge being that as the trainer of REVERSE LOGIC, he brought the gelding to Rockhampton for the purpose of engaging in a race and [a] urine sample taken after winning the Benchmark 55 Handicap 1050 metres, was found to contain Cobalt above the threshold set out in AR178C(1)(l).

[The Applicant] pleaded not guilty to the charge and his legal representative made lengthy written submissions in defence of the charge which included a further report from Mr Major.

… [T]he Stewards made the following finding[s]:

1.  The Stewards were satisfied that the sample was properly taken by the [Respondent’s] Sample Collection Official, also evidence[d] by [the Applicant’s] employee signing the Sample Security Document.

2.  The panel rejected the comparison drawn to the Ron Quinton case with the Phar Lap feed being found to contain more than double the amount of Cobalt contamination that the Race N Win feed contained. 

3.  The RSC has statistics that continue to grow, of the many thousands of samples analysed to date, which would include horses that have travelled and have varying degrees of hydration, the mean is under 10ug/L.  Subsequently, the Stewards reject that factors raised by Mr Major would result in Reverse Logic recording a Cobalt level in excess of 200ug/L. 

For the above-mentioned reasons the Stewards were satisfied to the requisite standard that the charge could be sustained and formally found [the Applicant] guilty.

… the Stewards were of the view that the following were the appropriate considerations:

1.  [The Applicant] has an unblemished record as a licensed trainer over a long period;

2.  [T]he submissions made in relation to the personal circumstances of Mr Waldron and the impact any penalty will have on his training operation;

3.  The cobalt reading of the urine sample of >200ugl;

4.  The submissions made by Derek Major regarding the feeding regime of Reverse Logic and the comparisons to the Quinton case;

5.  Penalty precedents in relation to Cobalt;

6.  Need for a penalty to serve as a specific deterrent to [the Applicant] and a general deterrent to the wider industry to illustrate that breaches of this kind tarnish the image of the sport.

… [The Applicant] be disqualified for a period of nine (9) months.  [The] Stewards will defer the commencement of this disqualification for a period of 7 days under the provisions of AR283(7), however under sub-rule (8) of the same rule, [the Applicant] will not be permitted to start a horse in a race during this time.

Furthermore, under the provisions of AR240(1) Reverse Logic was disqualified from winning the Benchmark 55 Handicap 1050m at Rockhampton on 13 July 2017… ”

  1. [11]
    The Applicant made Application for an internal review of the decision dated 3 July 2019.  As to the outcome sought by that Application for internal review, the Applicant stated:  1.  That the finding of guilt be overturned.  2.  That the penalty imposed, if the finding of guilt is not overturned, be set asid[e], and no punishment imposed.  3.  This matter has been ongoing since July 2017 and it is also very unfortunate and unfair to have a finding of guilt made on 30 January 2019 and a penalty not issued until 1 July 2019. 
  2. [12]
    An application to review a decision of the Respondent was filed with the Tribunal on 13 August 2019 by the Applicant.    
  3. [13]
    At part B of that application form filed on 13 August 2019, there is reference to the decision of 1 July 2019.  At part C of that application form there is reference to Annexure A to the form, which states: 

“1.  The decision of the Stewards and the [Respondent] Internal Reviewer is unreasonable and fails to take into account all of the evidence.

2.  … submissions set out the basis upon which a finding of not guilty ought to have been made and there are also submissions on penalty.  Stewards and the [Respondent] Internal Reviewer have failed to take these submissions into account.

3.  The Stewards and the Internal Reviewer failed to take into account and reflect upon:

a)  Contradictory evidence that the feed was contaminated through no fault of the Applicant; and

b)  Evidence of Dr Derek Major which if considered would result in a finding of not guilty. 

4.  The Stewards and the [Respondent] Internal Reviewer failed to reflect upon the fact that a finding of guilty was made in the exceptional circumstances of this case and that in the circumstances there should be [a] finding of not guilty.  There should be no penalty imposed in the circumstances of this case.  If any penalty is to be imposed it should be [a] fine.”

  1. [14]
    An Application to stay the decision was also filed on 13 August 2019:

“I have pleaded not guilty to the charges. 

I seek a stay to continue operating my business as a horse trainer.”

  1. [15]
    On 16 August 2019 the Tribunal ordered that ‘[t]he decision of the Queensland Racing Integrity Commission Stewards on 1 July 2019 is stayed pending the determination of the Application to review a decision filed on 13 August 2019’.
  2. [16]
    Rule 178 of the Australian Rules of Racing states:

“Subject to AR.178G, when any horse that has been brought to a racecourse for the purpose of engaging in a race and a prohibited substance is detected in any sample taken from it prior to or following its running in any race, the trainer and any other person who was in charge of such horse at any relevant time may be penalised.”

  1. [17]
    Rule 178G is not submitted by the parties to be applicable.  Rule 178G of the Australian Rules of Racing is not relevant, in that it refers to the ‘case of the presence of testosterone (including both free testosterone and testosterone liberated from its conjugates)’.
  2. [18]
    The Australian Rules of Racing in rule 178C(1)(l) state relevantly: “The following prohibited substances when present at or below the concentrations respectively set out are excepted from the provisions of AR178B and AR178H … Cobalt at a mass concentration of 100 micrograms per litre in urine or 25 micrograms per litre in plasma.”  It is not in contention that cobalt at the concentration identified in the certificates of analysis, referred to above, was a prohibited substance, as that phrase is used in rule 178.
  3. [19]
    Reverse Logic had been brought to a racecourse, Rockhampton, for the purpose of engaging in a race and a prohibited substance was detected in any sample taken from that horse prior to or following its running in any race.  The Applicant does not contend otherwise.
  4. [20]
    The Applicant makes no contrary submission as to the words:  “ … the trainer and any other person that was in charge of such horse at any relevant time … ”.
  5. [21]
    The parties make different submissions as to the phrase “ … may be penalised” in rule 178.  The Applicant submits that no penalty be imposed for the Applicant’s contravention of rule 178 of the Australian Rules of Racing.  The Respondent submits that the decision of the Respondent should be set aside as to penalty.  At the hearing, the Respondent did submit, amongst other submissions as to alternative penalties, that the penalty be a suspension for a period of time wholly-suspended.  On 20 March 2023 it was then directed that the Respondent was to file and provide to the Applicant within 7 days a submission as to relevant authorities and of the proposed form of an order.  In written submissions filed following the hearing, further to that direction, the Respondent submits alternative penalties, without specifying a particular form of an order as to the penalty to be made[5].
  6. [22]
    Rule 196 of the Australian Rules of Racing states:

“(1) Subject to subrule (2) of this Rule any person or body authorised by the Rules to penalise any person may, unless the contrary is provided, do so by qualification, suspension, reprimand, or fine not exceeding $100,000.  Provided that a disqualification or suspension may be supplemented by a fine. …

(4) Any person or body authorised by the Rules to penalise in respect of any penalty imposed on a person in relation to the conduct of a person, other than a period of disqualification or a warning off, suspend the operation of that penalty either wholly or in part of a period not exceeding two years upon such terms and conditions as they see fit.

(6)(a)  Any person or body authorised by these Rules to suspend or disqualify any trainer may defer the commencement of the period of suspension or disqualification for no more than seven Clear Days following the day on which the suspension or disqualification was imposed, and upon such terms and conditions as seen fit.

(b) Notwithstanding that the commencement of a period of disqualification may be deferred pursuant to AR.196(6)(a), a trainer must not start a horse in any race from the time of the decision to disqualify that trainer until the expiration of the period of disqualification.”

  1. [23]
    The Applicant submits that a penalty in the form of a fine and/or a wholly-suspended period of licence suspension is within the appropriate range for a presentation offence, where there is no explanation for how the elevated levels of cobalt came to be present in the relevant sample and therefore no indication as to whether or not there is any personal blameworthiness on the part of the trainer[6].  The Applicant submits that if there is no explanation for how the elevated levels of cobalt came to be present in the relevant sample that that is within the second of the three categories identified in Wallace v Racing Queensland [2007] QDC 168 at [69]:

“ … there is a difference between a case where there is evidence to show a specific mitigating circumstance, and simply an absence of evidence of an explanation, either mitigating or aggravating depending on the extent to which it shows an absence or presence of blameworthiness on the part of the trainer.[[7]]  Cases where the trainer was able to show a specific explanation which did not involve any blameworthiness on his part are really examples of the situation where the trainer has for the purpose of penalty been able to show a mitigating circumstance.  It may well be appropriate for such cases to be treated more leniently than what might be described as the ordinary case, where there is no explanation for the elevated reading, and therefore no indication as to whether or not there is any personal blameworthiness on the part of the trainer. Obviously the third category of case would be one where there was some explanation which did show moral blameworthiness on the part of the trainer, which I would expect would justify a more severe penalty.  But I do not think that there was an error of law in failing to equate the present case with one where there was a specific exculpatory explanation for the elevated reading demonstrated either before the stewards or before the tribunal.  Accordingly, I would reject the specific criticisms of the tribunal made on behalf of the appellant, but, for the reasons given earlier, I consider that the tribunal made an error of law in applying the wrong test to the appeal in respect of penalty.”

  1. [24]
    The Applicant refers to using a feed product at the relevant time prior to this particular race, known as Race N Win, which is a product made by Barastoc[8]. The Applicant stated that he purchased the Race N Win from Sunshine Hardware & Rural (Mitre 10) on specific dates (19 May, 28 June and 6 July 2017), with the invoices as to those particular purchases being exhibited to an Affidavit[9].  The label at that time for the Race N Win feed stated: “Cobalt (added) 0.35mg/kg”.  There is then a testing certificate document from Symbio Laboratories which refers to the testing of five samples of Barastoc Race N Win. The certificate is dated 28 September 2017.  There are handwritten dates on each of the five samples tested:  20 April, 22 May, 14 June, 14 July and 14 September 2017.  The cobalt unit on 20 April 2017 is 6.47mg/kg.  The cobalt unit on 22 May 2017 is 6.47mg/kg.  The cobalt unit on 14 June 2017 is 0.34mg/kg.  The cobalt unit on 14 July 2017 is 0.45mg/kg and the cobalt unit on 14 September 2017 is 0.35mg/kg. 
  2. [25]
    The Applicant submits that those test results of the samples provided by Ridley to Symbio Laboratories identify that those particular batches of Race N Win in the relevant period in 2017 contained 19.14 times the label amount of “added cobalt”[10]. 
  3. [26]
    Dr Major provided a report for the Applicant and stated that on 11 September 2017 he received blood and urine samples from the horse Reverse Logic, which were then submitted for analysis by him.  Dr Major stated that the blood level of 2.5 in this sample is less than the plasma level of 2.8.  Cobalt accumulates over time in red blood cells and after long term exposure will exceed plasma levels.  Dr Major further stated that the most likely explanation for this horse’s urinary cobalt level on 13th July 2017 is a combination of: exposure to a cobalt containing substance, including registered mineral supplements, vitamin B12 injections or feedstuffs, close to the time of testing.  The horse’s individual tendency to produce concentrated urine, or its hydration status on race day.  There is no prospect that the horse has received what has been termed “doping doses” of cobalt between early July and September 2017.  Dr Major states in his second report that, based on the data, Reverse Logic would have been consuming between 26.8 and 40.2 milligrams of cobalt per day[11].  Dr Major concludes that feeding that amount of cobalt to the horse for at least 6-weeks explains Reverse Logic’s urinary cobalt reading[12].  It was Dr Major’s opinion that the Race N Win feed was the dominant factor in the elevated cobalt level of Reverse Logic[13]. 
  4. [27]
    The Applicant submits that the elevated level of cobalt detected in Reverse Logic’s urine samples was caused by an ingestion over a 6-week period of the Race N Win feed which contained, unbeknownst to the Applicant, elevated levels of cobalt, demonstrating an absence of blameworthiness on the part of the Applicant.  The Applicant submits that that is within the first of the three categories identified in Wallace v Racing Queensland [2007] QDC 168 at [69]:  “ … there is evidence to show a specific mitigating circumstance … ”.
  5. [28]
    The Respondent submits that the Applicant’s use of other cobalt supplements on 9 July 2017 is the more likely explanation for the urinary cobalt reading of Reverse Logic[14]. 
  6. [29]
    Professor Mills provided a report for the Respondent and stated that the likely explanation for the high cobalt reading in the urine collected from Reverse Logic on 13 July 2017 was exposure to a cobalt containing substance.  As to the Symbio Laboratories testing, Professor Mills states that he ‘does not understand why only one horse exceeded the urinary cobalt threshold if the Applicant was giving this same batch of feed to all of his horses’.  As to ‘the feeding of this feed for at least 6 weeks’, Professor Mills states that it would appear that no other horse trained by the Applicant, despite having the same diet as Reverse Logic, exceeded the cobalt threshold in the 6-week period before or after the 13th of July 2017 and that that included subsequent samples from Reverse Logic.
  7. [30]
    As referred to above, there is no dispute between the parties that the Applicant contravened rule 178 on 13 July 2017.  As to the penalty for the contravention, rule 178 is discretionary as to penalty by the use of the word “may”[15]. 
  8. [31]
    There is evidence to ‘show a specific mitigating circumstance’.  The Applicant ‘has been able to show a specific explanation for the elevated cobalt level identified as to Reverse Logic, which does not involve any blameworthiness on the Applicant’s part’.  For the purpose of penalty, the Applicant has been ‘able to show a mitigating circumstance’.  There is no ‘evidence as to moral blameworthiness on the part of the Applicant’.  This is not a circumstance where there is no explanation for the elevated reading, and therefore no indication as to whether or not there is any personal blameworthiness on the part of the Applicant.  It is therefore appropriate, having regard to the discretion (“may”) as to penalty, that the Applicant be treated more leniently as to penalty than what might be the ordinary circumstance. 
  9. [32]
    There is no indication of any previous contraventions by the Applicant before these circumstances.  There is no indication of any contraventions by the Applicant since 2017. 
  10. [33]
    Neither party is submitting that there should be any change to the disqualification of Reverse Logic from the Benchmark 55 Handicap race in 2017, as stated to by the Stewards on 1 July 2019, as referred to above.
  11. [34]
    As to the submission of the Respondent at hearing that an appropriate order is a suspension wholly suspended, in Queensland Racing Integrity Commission v Scott [2019] QCATA 121 it was stated: “As noted in Morrisey v Queensland Racing Integrity Commission [2018] QCAT 161, [61]], while suspension does not have the broad impact of disqualification in terms of rule 259 AHRR, it is a severe penalty”.  
  12. [35]
    Where the Applicant has been able to show a specific explanation for the elevated cobalt level identified as to Reverse Logic, which does not involve any blameworthiness on the Applicant’s part, no further penalty will be imposed for the Applicant’s contravention of rule 178 of the Australian Rules of Racing, other than the disqualification from the race.
  13. [36]
    It is ordered that:

The decision of the Respondent dated 1 July 2019 is set aside in respect of penalty and in substitution it is ordered that no penalty is imposed on the Applicant for contravention of rule 178 of the Australian Rules of Racing.

Footnotes

[1]  Section 21(2) Documents, page 88, paragraph 11(e). 

[2]  Transcript of Inquiry dated 18 April 2018, page 2, paragraph 20.

[3]  Transcript of Inquiry dated 18 April 2018, page 2, paragraph 25.

[4]  Transcript of Inquiry dated 18 April 2018, page 3, paragraph 5.

[5]  Respondent’s further written submissions filed 27 March 2023, paragraphs 2 and 3.

[6]  Paragraph 2 of the Applicant’s supplementary outline as to penalty filed 3 April 2023.

[7]  cf.  R v Morrison [1999] 1 Qd R 397 at 422.

[8]  Affidavit of the Applicant, filed 7 September 2022, page 2, paragraph 12(ii).

[9]  Affidavit of the Applicant, filed 7 September 2022, page 2, paragraph 12(iii)(a-c).

[10]  Paragraph 29 of the Applicant’s outline of argument filed 20 March 2023.

[11]  Second expert report of Dr Major dated 29 May 2018.

[12]  Second expert report of Dr Major dated 29 May 2018.

[13]  Further report of Dr Major dated 4 February 2019.

[14]  Paragraphs 35-40 of the Respondent’s submissions filed 20 March 2023.

[15] Queensland All Codes Racing Industry Board v Thomas [2016] QCATA 83, [72]-[77] (Carmody J).

Close

Editorial Notes

  • Published Case Name:

    Waldron v Queensland Racing Integrity Commission

  • Shortened Case Name:

    Waldron v Queensland Racing Integrity Commission

  • MNC:

    [2023] QCAT 191

  • Court:

    QCAT

  • Judge(s):

    Member D. Katter

  • Date:

    16 May 2023

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
Beamond v Top Investments Pty Ltd [2016] QCATA 83
2 citations
Jump To
Cite 1 - [2016] QCATA 83
Cite 2 - [2016] QCATA 83
Morrisey v Queensland Racing Integrity Commission [2018] QCAT 161
2 citations
Jump To
Cite 1 - [2018] QCAT 161
Cite 2 - [2018] QCAT 161
Queensland Racing Integrity Commission v Scott [2019] QCATA 121
2 citations
Jump To
Cite 1 - [2019] QCATA 121
Cite 2 - [2019] QCATA 121
The Queen v Morrison[1999] 1 Qd R 397; [1998] QCA 162
2 citations
Jump To
Cite 1 - [1999] 1 Qd R 397
Cite 2 - [1999] 1 Qd R 397
Wallace v Queensland Racing [2007] QDC 168
3 citations
Jump To
Cite 1 - [2007] QDC 168
Cite 2 - [2007] QDC 168
Cite 3 - [2007] QDC 168

Cases Citing

Case NameFull CitationFrequency
Suli v Queensland Racing Integrity Commission [2024] QCAT 1492 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.