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Queensland Racing Integrity Commission v Gilroy[2016] QCATA 146

Queensland Racing Integrity Commission v Gilroy[2016] QCATA 146

CITATION:

Queensland Racing Integrity Commission v Gilroy [2016] QCATA 146

PARTIES:

Queensland Racing Integrity Commission

(Applicant)

v

Desmond Gilroy

(Respondent)

APPLICATION NUMBER:

APL214-16

MATTER TYPE:

Appeals

HEARING DATE:

12 September 2016

HEARD AT:

Brisbane

DECISION OF:

Justice DG Thomas, President

DELIVERED ON:

17 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. There was an error of law in the decision of the Racing Disciplinary Board dated 2 June 2016.
  2. That decision be set aside in respect of penalty imposed.
  3. The respondent, having been found guilty of an offence under rule 83(2) of the Greyhounds Australasia Rules 2013 is liable to a penalty under rule 95.
  4. Effective from 17 March 2016, Desmond Gilroy is disqualified for a period of 15 months.
  5. The period of disqualification is suspended after 7 months (being after 17 October 2016).
  6. If Desmond Gilroy engages in any conduct for which he might be subject to a disciplinary charge (under rules 79A, 83, 84, 84A or 84B of the Greyhounds Australasia Rules) for a prohibited substance during the period of disqualification, the period of disqualification that is suspended will immediately be re-activated and the disqualification be served in full. The matters which are the subject of any new charge will be treated and dealt with as a separate proceeding.
  7. There will be no order as to costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the respondent was found to have contravened rule 83(2) of Greyhounds Australasia Rules 2013 – where the Queensland Racing Disciplinary Board made a decision to vary the suspension period from 18 months to 4 months – where the Queensland Racing Integrity Commission appealed this decision –where the parties made joint submissions –whether penalty imposed by the Queensland Racing Disciplinary Board was manifestly inadequate

GAMING AND LIQUOR – ADMINISTRATION – RACING – RACING COMMISSIONS, BOARDS AND TRIBUNALS – GREYHOUND RACING – effect of suspension on disqualification – where prior disciplinary action – whether the decision should be set aside

Greyhounds Australasia Rules 2013 rr 1, 95, 99

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146

Racing Act 2002 (Qld) ss 4, 146, 155(5)

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; CFMEU v Director, Fair Work Building Industry Inspectorate [2015] HCA 46

David Crawford v Stewards of Greyhound Racing Victoria Racing Appeals and Disciplinary Board (13 July 2016)

Edmondson v Queensland All Codes Racing Industry Board [2016] QCAT 70

Lovell v Lovell (1950) 81 CLR 513

Medical Board of Australia v Martin [2013] QCAT 376

Queensland All Codes Racing Industry Board v Abbott [2015] QCATA 92

Racing Queensland Ltd v Dixon [2013] QCATA 172

APPEARANCES and REPRESENTATION:

 

APPLICANT:

AR Forbes of Lander & Rogers appearing on behalf of the Queensland Racing Integrity Commission

RESPONDENT:

Desmond Gilroy appearing on behalf of himself

REASONS FOR DECISION

Background

  1. [1]
    Desmond Gilroy is the trainer of greyhounds, including “Mugged on Tour”.
  1. [2]
    On 29 December 2015, a urine sample was taken from Mugged on Tour after it raced in race 5 at an Ipswich Race Meeting. In two tests, a urine sample was found to contain cobalt, at a mass concentration greater than 200 nanograms/millilitre.
  2. [3]
    On 17 March 2016, a Stewards’ Inquiry concluded that Mr Gilroy had contravened rule 83(2) of Greyhounds Australasia Rules 2013 (“GAR”) and imposed an 18-month period of suspension.
  3. [4]
    Mr Gilroy appealed to the Queensland Racing Disciplinary Board (“Board”) which dismissed the appeal as to the finding of conviction but varied the period of suspension from 18 months to 4 months.
  4. [5]
    The Queensland Racing Integrity Commission (“Commission”) seeks to appeal the decision of the Board.

Nature of Appeal

  1. [6]
    The Appeal may only be on a question of law.[1]
  2. [7]
    The Commission asserts that the Board made an error of law in setting aside the decision of the Stewards’ Inquiry and imposing a penalty that was manifestly inadequate in all the circumstances.[2]
  3. [8]
    The imposition of a penalty which is manifestly inadequate is an error of law.[3] It must be shown that the decision is plainly unjust or unreasonable and involved a clear misapplication of discretion.[4]

Orders Sought

  1. [9]
    The Commission originally sought orders that:
  1. The decision of the Board be set aside;
  2. The decision of the Stewards’ Inquiry to impose a penalty of Mr Gilroy be confirmed; and
  3. Mr Gilroy pay the Commission’s costs.[5]

Joint Proposal

  1. [10]
    Following a compulsory conference between the parties, the parties agreed a joint submission that:
  1. There was an error of law in the decision of the Board dated 2 June 2016, and the decision be set aside in respect of the penalty imposed.
  2. Desmond Gilroy having been found guilty of an offence under rule 83(2) of the GAR is liable to penalty under rule 95(3). The appropriate penalty to be imposed under rule 95 as a substituted decision under section 146(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) is:
  3. Effective from 17 March 2016, Desmond Gilroy is disqualified for 15 months;
  4. That the period of disqualification is suspended after 7 months being 17 October 2016; and
  5. There be no order as to costs as to the proceedings.
  1. [11]
    Whilst the parties have reached agreement in principle, it remains a matter for the Tribunal to decide the appeal.
  2. [12]
    As to the implications of the agreement between parties, particularly in the context of disciplinary cases, the Tribunal has made the observation that it ought not to depart from an agreed sanction unless it falls outside the permissible range of possible sanctions for the conduct.[6]
  3. [13]
    This matter was also considered in Commonwealth v Director, Fair Work Building Industry Inspectorate; CFMEU v Director, Fair Work Building Industry Inspectorate,[7] where it was decided at [46]:

“There is an important public policy involved in promoting predictability of outcome in civil penalty proceedings and that the practice of receiving and if appropriate, accepting agreed penalty submissions increases the predictability of outcome for regulators and wrongdoers”.

  1. [14]
    These observations support the approach adopted by the Tribunal. That is the correct approach.

Penalty

  1. [15]
    Mr Gilroy was convicted of a very serious offence.
  2. [16]
    Cobalt is a substance, which is capable of affecting a greyhound by its action on the cardiovascular system and so is a “prohibited substance” as that term is defined in rule 1 of GAR.
  3. [17]
    The main purposes of the Racing Act 2002 (Qld) (“Racing Act”) are:
    1. To maintain public confidence in the racing of animals in Queensland for which betting is lawful;
    2. To ensure the  integrity of all persons involved with racing or betting under the Racing Act; and
    3. To safeguard the welfare of all animals involved in racing under the Racing Act.[8]
  4. [18]
    The way in which these main purposes are achieved includes:
  1. Controls relating to the welfare of animals involved in racing, including the control of drugs;[9]
  2. The establishment of the Racing Disciplinary Board to hear and decide appeals against appealable decisions;[10]
  3. Offences and legal proceedings generally.[11]
  1. [19]
    Under rule 95 of the GAR penalties can include fines, suspension, disqualification, cancellation of registration and warning off.[12]
  2. [20]
    Any portion of any penalty imposed may be suspended.[13]
  3. [21]
    In many ways, the penalty of disqualification is more serious than that of suspension.[14] For example, disqualification means that the person cannot enter or go or remain on, at any time, any place where greyhounds are trained, kept or raced.[15]
  4. [22]
    Under section 146 of the QCAT Act, the Tribunal may amend or confirm the decision, set aside the decision and substitute its own decision, set aside the decision and return the matter to the Board for reconsideration or make any other order it considers appropriate, including a combination of those just mentioned.[16]
  5. [23]
    In this case, the parties have asked that the Tribunal not return the matter to the Board as, under recent amendments to the Racing Act, the Board will no longer exist.
  6. [24]
    A key consideration in determining penalty is to maintain the integrity of the industry as a whole and to demonstrate to participants in the industry and the public, that behaviour which breaches the rules will not be tolerated.[17] There is a need to deter participants in the industry from acting in a way that is in breach of the rules, which have been formulated to achieve the purposes which include: maintenance of public confidence, ensuring the integrity of all persons involved in the industry, and safeguarding the welfare of all animals involved in racing.
  7. [25]
    The Tribunal agrees with the observations made in the Victorian case of David Crawford v Stewards of Greyhound Racing Victoria[18] where it was said

“The Board is guided by principles of specific deterrence, general deterrence and the upholding of the good name of the industry by creating a level playing field… on the topic of general deterrence a message needs to be sent to the trainers that the cobalt threshold must not be breached as it is not satisfactory that performance enhancing substances are used especially those which may impact on the welfare of greyhounds. Public confidence in the industry will also exist if prohibited free substance racing is ensured.”

  1. [26]
    In assessing the penalty, it is also appropriate to take into account all the particular circumstances. These may include matters such as:
    1. the concentration of the prohibited substance;
    2. the number of animals involved;
    3. the number of races involved;
    4. any prior disciplinary history;
    5. co-operation with the authorities; and
    6. insight demonstrated by the trainer.
  2. [27]
    It is also appropriate to take into account sanctions, which have been imposed across Australia, with respect to similar offences.
  3. [28]
    The Applicant referred to similar offences and the sanction imposed in a number of cases. Those cases have included:
  1. Terrance Gahlan v Greyhound Racing South Australia Ltd Stewards[19] – 6 month period of disqualification.
  2. Isaac v Greyhound Racing South Australia Ltd Stewards[20] (Greyhound Racing) – 8 month period of suspension in addition to a fine of $5000.00.
  3. Stewards of Greyhound Racing South Australia v Ivor Dowdell (9 June 2016) (Greyhound Racing) – 12 month period of disqualification.
  4. Stewards of Greyhound Racing Victoria v Fred Bickerton (19 July 2016) (Greyhound Racing) – 12 month period of disqualification (with 9 months suspended for 12 months).
  5. Alexia Isaac v Greyhound Racing South Australia Ltd Stewards (6 May 2016) (Greyhound Racing) – two 8 month periods of disqualification (served concurrently) and a $5000.00 fine.
  6. Greyhound Racing South Australia Ltd Stewards v Michael Delorenzo (14 May 2016) (Greyhound Racing) – 8 month period of disqualification and a $1000.00 fine.
  7. Stewards of Greyhound Racing Victoria v Charles Mizzi (1 August 2016) Victorian Racing and Disciplinary Board (Greyhound Racing) – two 15 month periods of disqualification (served concurrently) with 9 months suspended for a period of 12 months.
  8. Stewards of Greyhound Racing South Australia v Kenneth Newlyn (16 August 2016) (Greyhound Racing) – 6 month period of disqualification and a $2000.00 fine.
  9. Stewards of Greyhound Racing Victoria v John Musselwhite,[21] Racing Appeals and Disciplinary Board (26 July 2016) (Greyhound Racing) – 12 month period of disqualification (with 9 months suspended for a period of 12 months).
  10. David Crawford v Stewards of Greyhound Racing Victoria[22] Racing Appeals and Disciplinary Board (13 July 2016) (Greyhound Racing) – 15 month period of disqualification (12 months was suspended for a period of 12 months).
  11. Greyhound Racing New South Wales Stewards v Desmond Heilbronn (18 August 2016) (Greyhound Racing) – 15 month period of disqualification.
  1. [29]
    Mr Gilroy has had a previous offence for a prohibited substance where on 4 February 2013, he breached rule 83(2)(a) and was fined $1000.00.[23] In this case, the level of concentration was high (it exceeded 200 nanograms/millilitre) and was twice the minimum threshold.[24] The offence involved one animal and one race and Mr Gilroy admitted to giving the dog livermol and conferta. He did not co-operate with the authorities fully as he contested the matter before the Board, although he did participate in the compulsory conference where it was agreed that a joint submission would be filed.
  2. [30]
    At the hearing, there was some discussion regarding the effect of the suspension on the disqualification.
  3. [31]
    The Tribunal is of the opinion that the suspension which has been agreed by the Commission should only continue provided that Mr Gilroy does not engage in any conduct for which he may become liable for a disciplinary charge with respect to use of a prohibited substance.
  4. [32]
    Having regard to the comparative authorities and also bearing in mind Mr Gilroy’s prior disciplinary history, the level of cobalt concentration, that one animal was involved in one race, the Tribunal considers that the penalty imposed by the Board was manifestly inadequate so as to amount to an error of law, and that decision should be set aside.
  5. [33]
    Bearing those factors in mind, the Tribunal considers that the sanction agreed by the parties and put as a joint submission is appropriate in the all the circumstances.
  6. [34]
    The Tribunal orders are as follows:
  1. There was an error of law in the decision of the Racing Disciplinary Board dated 2 June 2016.
  2. The decision be set aside in respect of penalty imposed.
  3. The respondent, having been found guilty of an offence under rule 83(2) of the Greyhounds Australasia Rules 2013 is liable to a penalty under rule 95.
  4. Effective from 17 March 2016, Desmond Gilroy is disqualified for a period of 15 months.
  5. The period of disqualification is suspended after 7 months (being after 17 October 2016).
  6. If Desmond Gilroy engages in any conduct for which he might be subject to a disciplinary charge (under rules 79A, 83, 84, 84A or 84B of the Greyhounds Australasia Rules) for a prohibited substance during the period of disqualification, the period of disqualification that is suspended will immediately be re-activated and the disqualification will be served in full. The matters which are the subject of any new charge will be treated and dealt with as a separate proceeding.
  7. There will be no order as to costs.

Footnotes

[1] Racing Act 2002 (Qld) s 155(5). The relevant legislation is that which was in force on 1 May 2016, prior to the amendments, which commenced on 1 July 2016.

[2]  Submissions of the applicant filed 2 September 2016, paragraph 9.

[3]Racing Queensland Ltd v Dixon [2013] QCATA 172 at [5].

[4] Queensland All Codes Racing Industry Board v Abbott [2015] QCATA 92 at [49]; Lovell v Lovell (1950) 81 CLR 513.

[5]  Submissions of the applicant filed 2 September, paragraph 11.

[6] Medical Board of Australia v Martin [2013] QCAT 376.

[7]  [2015] HCA 46.

[8]Racing Act 2002 (Qld) s 4.

[9]  Ibid s 4(2)(f).

[10]  Ibid s 4(2)(i).

[11]  Ibid s 4(2)(m).

[12]Greyhound Australasia Rules 2013 r 95(1).

[13]  Ibid r 95(3).

[14]  Ibid r 99.

[15]  Ibid r 99(3)(g).

[16]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146.

[17]Edmondson v Queensland All Codes Racing Industry Board [2016] QCAT 70.

[18]  Racing Appeals and Disciplinary Board (13 July 2016).

[19]  RAT 13/16.

[20]  RAT 4/16.

[21]  Racing Appeals & Disciplinary Board (26 July 2016).

[22]  Racing Appeals & Disciplinary Board (13 July 2016).

[23]  Agreed Bundle of Documents, Document 24 ‘Respondent’s Disciplinary History’.

[24]  Submissions of the Applicant filed 2 September 2016, paragraph 32.

Close

Editorial Notes

  • Published Case Name:

    Queensland Racing Integrity Commission v Gilroy

  • Shortened Case Name:

    Queensland Racing Integrity Commission v Gilroy

  • MNC:

    [2016] QCATA 146

  • Court:

    QCATA

  • Judge(s):

    Thomas P

  • Date:

    17 Oct 2016

Appeal Status

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

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