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Queensland Racing and Integrity Commission v Kunde[2017] QCATA 133

Queensland Racing and Integrity Commission v Kunde[2017] QCATA 133

CITATION:

Queensland Racing and Integrity Commission v Kunde [2017] QCATA 133

PARTIES:

Queensland Racing and Integrity Commission

(Appellant)

v

Tracy Kunde

(Respondent)

APPLICATION NUMBER:

APL419-16

MATTER TYPE:

Appeals

HEARING DATE:

11 August 2017

HEARD AT:

Brisbane

DECISION OF:

Member Allen

Member Traves

DELIVERED ON:

14 December 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

IT IS THE DECISION OF THE TRIBUNAL THAT:

  1. The appeal in respect of grounds 1, 2 and 3 is dismissed.
  2. Leave to appeal is refused in relation to grounds 4 and 5.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – whether error of law in original tribunal decision

GAMING AND LIQUOR – ADMINISTRATION – RACING – RACING COMMISSIONS, BOARDS AND TRIBUNALS – GREYHOUND RACING – Rules of Greyhound Racing – interpretation – whether omission to report requires first a correlative duty to report – whether an error to import “tests” from the criminal law – whether misapplication of strictness of proof principles in Briginshaw v Briginshaw – whether error to interpret rule to require direct knowledge of the matter omitted to report

Greyhound Australasia Rules, rule 3, rule 86(q)

Racing Act 2002 (Qld), s 4, s 91, s 111, s 112, s 149S, s 152A

Arnold v Racing Queensland [2015] QSC 293

Briginshaw v Briginshaw (1938) 60 CLR 336

Commonwealth Director of Public Prosecutions v Poniatowska [2011] HCA 43

He Kaw Teh v The Queen (1985) 157 CLR 523

Racing Victoria Limited v Kavanagh [2017] VSCA 334

Riley v Racing Victoria Ltd [2015] VSC 527

Wallace v Queensland Racing [2007] QDC 168

APPEARANCES AND REPRESENTATION:

 

APPELLANT:

Mr J Horton QC and Mr D Purcell of Counsel instructed by Clayton Utz Lawyers

RESPONDENT:

Ms S McGee of Counsel instructed by Levitt Robinson Solicitors

REASONS FOR DECISION

  1. [1]
    This is an appeal from a decision of the Tribunal on 15 November 2016 setting aside:
    1. the decision of the Racing Disciplinary Board of 25 November 2015; and
    2. the original decision by the Queensland All Codes Racing Industry Board (now the Queensland Racing and Integrity Commission) trading as Racing Queensland of 28 April 2015.
  2. [2]
    Both the original decision and the decision by the Racing Disciplinary Board found Tracy Kunde to have breached rule 86(q) of the Greyhound Australasia Rules (GAR). The Racing Disciplinary Board reduced the penalty from warning off racecourses for life to warning off racecourses for 10 years.
  3. [3]
    It was found that Mr Kunde breached rule 86(q) by witnessing live baiting and failing to report it to the control body or other law enforcement authorities. Mr Kunde is a trainer of greyhounds and on the day when the offence was alleged to have occurred, had been trialling his dogs at an unregistered trial track at Wotan Road, Churchable. It was agreed that the alleged live baiting did not involve Mr Kunde’s dogs and that he was not an active participant.[1]
  4. [4]
    Mr Kunde applied to QCAT for review pursuant to s 152A of the Racing Act 2002 (Qld) (Racing Act).[2] Under s 152A, an aggrieved person who is given a QCAT information notice for a decision of a constituted board may apply, as provided under the QCAT Act, to the tribunal for review. Section 149R provides that a “constituted board” for an accepted appeal means the disciplinary board as constituted to hear and decide the appeal.
  5. [5]
    The jurisdiction of the Disciplinary Board was limited to Mr Kunde’s appeal against an “appealable decision”, being Racing Queensland’s decision under rule 3A of the Local Rules, that Mr Kunde should be warned off for life from all Queensland greyhound racecourses.[3]
  6. [6]
    The effect of the Tribunal’s decision on review was to hold Mr Kunde not liable for the alleged conduct on the basis that:
    1. GAR rule 86(q) placed no positive obligation on Mr Kunde to report the “incident”; and
    2. The failure to report live baiting “could not constitute conduct actionable under GAR Rule 86(q)”.
  7. [7]
    The grounds of appeal, as amended, are as follows:

Ground One:

  1. [8]
    The learned Member erred in construing rule 86(q) of the GAR by finding that sub-rule:
  1. Not to be capable of extending to observers with direct knowledge who omit to report live baiting;
  2. Not to have the effect which the Supreme Court in Arnold v Racing Queensland [2015] QSC 293 found it to have.

Ground Two:

  1. [9]
    The learned Member erred in deciding the matter by reference to standards and tests from the criminal law, being ones that none of the QCAT Act, the Racing Act nor the GAR, import.

Ground Three:

  1. [10]
    The learned Member erred in the application of Briginshaw v Briginshaw[4] as introducing a “standard of proof” different from that applicable to civil proceedings.

Ground Four:

  1. [11]
    The learned Member misunderstood the evidence and the effect of the evidence as to the Respondent’s awareness that live baiting was taking place.

Ground Five:

  1. [12]
    The learned Member erred in failing to find the evidence showed the Respondent to have witnessed live baiting.

Issue of leave

  1. [13]
    The grounds of appeal raise both questions of law and questions of fact. Leave to appeal is therefore required under s 142(3)(b) of the QCAT Act.
  2. [14]
    The appellant is required to show that it may bring an appeal as a matter of right on question of law, or that it should have leave to appeal on a question of fact, or a mixed question of law and fact.[5]
  3. [15]
    At the Hearing it was resolved by consent that the Tribunal would first consider the grounds of appeal concerning questions of law. This confined the appeal to Grounds 1, 2 and 3. Grounds 4 and 5 concern questions of fact.

Ground One

  1. [16]
    Section 4 of the Racing Act sets out the main purpose of the Act:
  1. The main purpose of this Act is to provide for control bodies to manage, operate, develop and promote codes of racing in a way that ensures public confidence in the racing industry in Queensland.
  2. The main purpose is primarily achieved through the establishment of:
  1. the Racing Queensland Board as the control body for the thoroughbred, harness and greyhound codes of racing; and
  2. a process by which an eligible corporation may be approved as a control body for another code of racing; and
  3. a framework for how all control bodies are to undertake the management, operation, development and promotion of codes of racing, including the licensing of clubs and venues in the code; and
  4. a cooperative approach among entities under this Act with the commission.
  1. [17]
    Section 111 of the Racing Act provides that a control body must have rules of racing for the good management of each of its codes of racing. These rules must be made in accordance with s 112. These rules must be publicly available and a copy provided to a person who asks for one.[6]
  2. [18]
    The rules of racing made under s 91 of the Racing Act by the Racing Queensland Board for the greyhound code of racing are statutory instruments within the meaning of the Statutory Instruments Act 1992 (Qld).[7] The rules made for the code include the GAR and the local rules. In the event of any inconsistency between the GAR and the local rules, the local rules take precedence.[8]
  3. [19]
    In making its rules of racing, Racing Queensland must have regard to whether the rules have sufficient regard to the rights and liberties of individuals as mentioned in the Legislative Standards Act 1992 (Qld), s 4(3).[9]
  4. [20]
    The rules form a contract between Racing Queensland and those granted a licence to participate in the greyhound racing industry in Queensland.[10] The agreement is formed when Mr Kunde accepted a licence on condition that he abide by the Greyhound Rules. Mr Kunde was therefore bound to abide by the rules.
  5. [21]
    Rule 3(1) provides that the rules apply to:

… every person who takes part in any event or attends any race meeting or trials or wagering at race meetings or any other proceeding or matter purporting to be conducted pursuant to or which is governed by these Rules and any greyhound registered with or appearing in the records of a controlling body in any capacity.

  1. [22]
    Rule 3(2) provides that:

A person to whom these Rules apply, in the absence of any other provisions that serve to bind that person to these Rules in the manner indicated in this Rule, is deemed –

  1. (a)
     to have knowledge of and to consent to be bound thereby…
  1. [23]
    The GAR are to be interpreted in accordance with well-established principles of interpretation as applied in Riley v Racing Victoria Ltd.[11] The principles applied there included that:

as a contract, the Rules were to be interpreted by reference to the plain and ordinary meaning of the words used;[12] the Rules were to be read as a whole;[13] effect was to be given to all parts of the Rules;[14] where alternative interpretations were available, unreasonable interpretations and interpretations consistent with protecting fundamental rights and liberties[15] and avoiding the enlargement of penal provisions should be preferred;[16] and the objective intention of the parties as revealed by the words of the Rules must be the focus of attention, as to which extrinsic materials were not admissible.[17] (footnotes included).[18]

  1. [24]
    In view of the fact that the interpretation of the GAR may affect the rights of individuals to carry on the business of a greyhound trainer and result in a penalty of disqualification, two further principles of interpretation have been held to be engaged. They are the principle of legality and the principle that applies when the provision in question is penal in nature or operation.[19]
  2. [25]
    In Riley it was held:

For the purposes of the application of the principle of legality, the clauses of the Rules may be seen to be analogous to the provisions of legislation. Indeed, as I have observed, the Rules are required by and recognised under the Racing Act….

More recently, in Lacey  French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ stated that, according to the principle, it is presumed that, “in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms, or immunities“.  The principle ensures that such rights, freedoms and immunities are not infringed by judicial supposition. In the language of French CJ in Momcilovic v R, it requires that “statutes be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law”.

It is established that the principle of legality applies to the interpretation of legislation which abrogates or curtails the right or freedom of a person “to carry on his business in his own way within the law“.  Mr Riley carries out the business or occupation of a licensed horse trainer and the Rules govern his right or freedom to do so. If he has properly been found guilty of breaching the Rules in question, disqualification of his capacity to carry out the business or occupation of a licensed horse trainer for three years is the known result. The principle of legality that applies to the interpretation of provisions of legislation therefore applies to the interpretation of the relevant clauses of the Rules, recalling that the Rules are recognised under the Racing Act. According to that principle, for the court to adopt an interpretation resulting in the termination of Mr Riley’s business or occupation as a licensed horse trainer for three years, the language of the Rules must be unmistakable or unambiguous.[20]

  1. [26]
    The second principle that applies to penal and like provisions was summarised as follows in Riley:

… the rule requires a penalising provision or clause to be unambiguously clear as to the scope of the prohibition that is imposed. Where an interpretation in favour of a wider prohibition and another in favour of a narrower prohibition are both reasonably open, the court will refuse to make a selection that enlarges the prohibition by adopting the wider interpretation. But the court should, if it can, resolve the issue by the application of the ordinary rules of interpretation and apply this rule only in the last resort.[21]

  1. [27]
    Having outlined the relevant principles of interpretation we turn now to consider the construction issues raised by the appellant in relation to rule 86(q) of the GAR.
  2. [28]
    Rule 86(q) provides:

A person shall be guilty of an offence if the person:

Commits or omits to do any act or engages in conduct which is in any way detrimental or prejudicial to the interests, welfare, image, control or promotion of greyhound racing.

  1. [29]
    “Person” is defined in the GAR as “any person or body corporate whether registered by the Controlling Body or not”.
  2. [30]
    The Appellant submits that the Member erred in law in construing the rule so that it could only apply to observers with direct knowledge of the incident and only if there was a requirement to report it.
  3. [31]
    The Member said:

The Respondent submits that caught in the purview of GAR86(q) are observers with direct knowledge of live baiting who omit to report it to Racing Queensland as the regulatory body.

There are two factual findings that are required to be made. Firstly, did the Applicant have direct knowledge of live baiting and, if so, was he under any particular rule, obliged to report it?[22]

  1. [32]
    In relation to whether the rule requires “direct knowledge” the Appellant submitted:

To require direct knowledge was for the Member to have committed an error of law: it is no part of the test that rule 86(q) requires. The question is only whether he knew live baiting was occurring. The test the Member imposed was unduly narrow and was to misapply GAR rule 86(q).

Consideration of Ground 1

  1. [33]
    The rule does not refer to “knowledge”, nor does it refer to whether “knowledge” must be “direct”, or otherwise. The rule proscribes an act or omission which is any way detrimental or prejudicial. If a failure to report an incident or event otherwise constitutes an “omission”, in our view it may do so, depending on the circumstances, whether or not there exists “direct knowledge” or, for example, a belief honestly held based upon that which a Member has read, or been told. It would be to introduce an unwarranted gloss on the words of the rule to constrain its effect to require, in circumstances of an alleged omission, that there be “direct knowledge”.[23]
  2. [34]
    In our view it was an error for the Member to require that Mr Kunde have “direct” knowledge of the relevant incident.
  3. [35]
    The Appellant also argued that the Member was in error by not finding the rule to have the effect which the Supreme Court in Arnold v Racing Queensland[24] found it to have.
  4. [36]
    The Member in referring to Arnold said:

The Tribunal was referred to the decision of Arnold v Racing Queensland & Another (2015) QSC 293. In that case the Applicant’s Solicitors had made an admission, in a letter showing cause, that witnessing live baiting was a contravention of GAR 86 (q). Justice Dalton thought the admission was properly made. It appears that the issue was not fully argued before Her Honour and she did not have the benefit of considering the decisions referred to above. Her Honours decision, although persuasive is not binding on the Tribunal.[25]

  1. [37]
    While it is true that Dalton J thought the admission properly made it is important to understand that Her Honour thought it properly made in the circumstances pertaining to Ms Arnold. This is clear from the reasoning:

In my opinion, that admission on behalf of Ms Arnold was properly made. Clearly enough, the case which was made against Ms Arnold on 17 February 2015 was not that she was some sort of incidental witness to live baiting, but that she had, on many occasions, seen, or been in a position to see, that live baiting was carried on at the unlicensed training establishment and did nothing to attempt to stop that practice, or to bring it to the attention of the first respondent. Furthermore, I think it was perfectly clear from 17 February 2015 that the first respondent relied upon Ms Arnold’s acts and omissions in a context where she was the president of the greyhound association in Queensland as something that was particularly likely to bring the image or control of greyhound racing into disrepute. This was the substance of the charge made against her. … That paragraph continues with some submissions which I will not extract in my judgment, but which are relevant because they show Ms Arnold and her solicitors well understood that the gravamen of the charge against her was not that she incidentally saw some live baiting, but that she witnessed live baiting on numerous occasions, knew it was widespread, and did nothing to either stop or report it. (emphasis added)

  1. [38]
    In our view, Dalton J found a breach of the rule had occurred in circumstances very different from that which applied to Mr Kunde. Mr Kunde, on the evidence, had possibly seen one incident of live baiting, which is vastly different from having admitted to seeing and participating in dog trials involving live baiting. Further, Mr Kunde’s acts and omissions was not conduct on which the Appellant would rely, in stark contrast to that of Ms Arnold who held the position of President of the Greyhound Association and who was interviewed on Four Corners regarding the issue.
  2. [39]
    In any event, the Member did consider the decision and thought it persuasive, though not binding. There is, in our view, no error in that approach where the case, in any event, was clearly distinguishable. Mr Kunde’s case was, arguably, a case of an “incidental witness to live baiting”, which, according to Dalton J was not the case in Arnold.

Grounds Two and Three

  1. [40]
    The appellant submits that the Member erred in applying tests applicable to omissions for criminal responsibility to this area of law and, further, in misstating the effect of Briginshaw v Briginshaw.
  2. [41]
    The submissions of the appellant in relation to these grounds are as follows:

…the error alleged is his importing a standard of proof and thresholds from the criminal law. To have had regard to the principles of criminal law is a matter about which the Applicant complains which amounts to the Member having asked himself the wrong question, which is an appellable error of a fundamental kind.

At paragraph 11 of the Respondent’s outline, reference is made to the Briginshaw principle in support of a suggestion that that case somehow supports what the Member did. The Member of course applied the criminal standard and criminal principles and as such rejected the principles for which Briginshaw stands.[26]

  1. [42]
    In relation to the application of Briginshaw the Member said:

From these admissions and the video evidence, the Respondent submits the Applicant knew or ought to have known that live bait was being used. The Briginshaw standard of proof is frequently referred to in the Tribunal’s decisions, however, in cases such as this, it does not hurt to remind one’s self of what Dixon J (as he then was) said in Briginshaw v Briginshaw said at 361 – 362:-

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of the belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact of facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of the given description, or the gravity of the consequence flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

The gravity of the consequences in the instant case was that the Applicant, initially, was warned off greyhound tracks for life, later reduced to ten years, and prohibited from racing greyhounds for the same period. Although, not his sole source of income the penalty would have a significant impact on his life and livelihood.

The Tribunal is not satisfied on the Briginshaw standard of proof that read as a whole the Applicant’s responses can be construed as admissions that he knew when he was at the track, that day, that a live piglet was attached to the lure arm.

Consideration of Grounds 2 and 3

Briginshaw

  1. [43]
    There is nothing in the Reasons to indicate the Member misapplied Briginshaw. The Member said of the video evidence that it was “not of great value” and could not be construed as evidence that the applicant was aware, at the time he was present, that live baiting was taking place.[27] The Member also carefully outlined all the statements made by Mr Kunde that the respondent relied upon as admissions. The Member concluded:

The gravity of the consequences in the instant case was that the Applicant, initially, was warned off greyhound tracks for life, later reduced to ten years, and prohibited from racing greyhounds for the same period. Although, not his sole source of income the penalty would have a significant impact on his life and livelihood.

The Tribunal is not satisfied on the Briginshaw standard of proof that read as a whole the Applicant’s responses can be construed as admissions that he knew when he was at the track, that day, that a live piglet was attached to the lure arm.[28]

  1. [44]
    Briginshaw was a case about strictness of proof in the civil context where serious allegations are made which have serious consequences. In such a case, whether the issue has been proved to the reasonable satisfaction of the tribunal will require more than “inexact proofs, indefinite testimony or indirect references”. This point, in our view, was appreciated and applied by the Member when he referred to the “gravity of the consequences” of a particular finding for Mr Kunde and that the admissions when read together did not amount to an admission that he knew a live piglet was attached to the lure arm.
  2. [45]
    There is no error demonstrated in his application of the principles from Briginshaw and no basis for finding that the criminal standard of proof was applied.
  3. [46]
    The point made by the Appellant, that the Member incorrectly refers to the “Briginshaw standard” and that there is no such standard, is not a point of any substance.
  4. [47]
    The reference to tests from the criminal law was, in our view, not an error of law. We will deal first with the “tests” said to have been imported from the criminal law. We will then consider whether the Member made an error in applying them.

Whether an “omission” required first a duty to act

  1. [48]
    The issue is whether on the proper construction of the rule for there to be an “omission” there would need to be a duty to act. Providing it is borne in mind that it is the construction of the particular rule which is at issue, we see no error in referring to authorities which consider analogous provisions in criminal law statutes.[29]
  2. [49]
    The Appellant submits that an omission does not require a duty to act and, in effect, the rule itself contains the obligation or duty. The Appellants argue, in effect, that it is unnecessary to look to the existence of a duty of disclosure under the GAR because the offence provision is satisfied by a causal relation between an omission to act (here to report live baiting) and the resultant prejudice and detriment caused by that omission to the greyhound industry.
  3. [50]
    A similar issue was considered by the High Court in Commonwealth Director of Public Prosecutions v Poniatowska,[30] in relation to the offence under s 135.2(1) of the Criminal Code Act 1995 (Cth) (the Code) of engaging in conduct to obtain a financial advantage. The expression “engage in conduct” is defined in the Code as doing an act or omitting to perform an act.[31] There the issue was whether a failure or omission to advise Centrelink of the receipt of payments of commission from an employer could constitute an offence under the provision.
  4. [51]
    The High Court held:

If the law creating the offence does not criminalise the failure to do a thing (the exception to the general principle stated in s 4.3(a) and if that failure is not the breach of a duty imposed by the law (the exception to the general principle stated in s 4.3(b) it is difficult to characterise the fact that a person does not do the thing as the omission of an act. The appellant's answer to this difficulty is to say that the elements of the offence are not to be analysed in isolation: the gravamen of the offence created by s 135.2(1) is the intentional failure to do something, which causes the person to receive the financial advantage, in circumstances in which he or she has the requisite additional mental state. This analysis conflates the elements of conduct and the result of conduct. In the result, the need to identify a specific omission to act is overlooked.

  1. [52]
    Poniatowska was of course a criminal law case, but the reasoning is helpful.
  2. [53]
    The consequence of the Appellant’s construction of the rule is that the rule will be offended if there is any failure to do something which is in any way detrimental or prejudicial. In the present circumstances, that alleged failure is the failure to report; but the rule would have extraordinary width in other circumstances. As a consequence of its width, the precise boundaries of the proscribed conduct would be very difficult to define. The operation of the rule would be the subject of great uncertainty.
  3. [54]
    The Respondent’s contention is that for there to be a relevant omission there must be a duty to act. That is consistent with the findings of the Tribunal below.
  4. [55]
    The general rule at common law is that an omission to perform an act cannot be a physical element of an offence. This is however subject to exceptions. For offences under Commonwealth statutes, for example, the exceptions are contained in s 4.3 of the Code.[32] This section reflects the general law principle that there can be no criminal liability for an omission unless it is the omission to perform a legal obligation.[33]
  5. [56]
    In our view, the rule does not of itself create a legal obligation to act and not omit. It requires that an omission cause the greyhound industry detriment. This element is concerned with causation and provides no assistance as to the nature of an omission on which a charge might be based.
  6. [57]
    As we have discussed above, the legal status of the GAR stems from a contract between Mr Kunde and the Commission. The GAR, though stipulated as “offences” by the GAR, are not criminal offences.[34] A criminal offence is one declared by the State to be a crime.[35] The regulatory offences in the GAR do not satisfy that definition.
  7. [58]
    Nonetheless, a contravention of the GAR may carry with it very serious consequences affecting a person’s livelihood. When a trainer is found guilty of breaching the rule in question, for example, the penalty imposed can be “warning off” racecourses for life. As we have observed, the construction of the rule preferred by the Appellant carries with it great uncertainty as to the breadth of the operation of the rule. The construction adopted by the Tribunal below produced greater certainty and was consistent, in our opinion, with the weight of authority and with the principles of interpretation we have outlined above.
  8. [59]
    To define the meaning of “omit” by reference to a legal obligation or duty to do an act permits the rule proper definition and workable certainty. It is also consistent with the general approach of the courts to resolve ambiguity of penal and like provisions in a manner which does not encroach on legal rights and freedoms which otherwise would exist.
  9. [60]
    We accept that live baiting is abhorrent and when incidents of live baiting were made public it caused damage to the reputation and interests of greyhound racing. We understand the motivation of the Appellant to do what it can to stop it and to denounce those licensees involved with it. We take full account of this purpose when interpreting the GAR. However, this rule also operates to impinge upon the rights and interests of individuals engaged in the business of licensed greyhound racing. Their legitimate rights and interests are also respected under the GAR and must also be considered.[36]
  10. [61]
    For the reasons above, it is, in our view, not the proper interpretation to enlarge the scope of the rule to include an “omission to report” by, at best, an incidental observer when there was no express underlying obligation to do so.
  11. [62]
    We find, accordingly that there is no error of law in this respect in the construction of the rule as applied by the Member, nor in the Member’s approach to that construction. The “omission” should, in our view, relate to an identifiable duty imposed by the GAR on its Members. We note that the GAR, as amended, now provide such an obligation.
  12. [63]
    The rule as amended[37] provides first that a person must witness the conduct and imposes an express obligation to report the conduct to the Controlling Body as soon as reasonably practicable. The amendments, it might reasonably be inferred, were intended to address the uncertainty which we have identified in relation to the rule as it was.
  13. [64]
    Accordingly, we find no error in the construction of the rule that required there first be an underlying obligation to report before an “omission to report” could be held to exist.

Conclusion

  1. [65]
    Although we found an error of law in relation to the requirement that there be “direct knowledge”, we did not need to rely on this finding given our conclusion regarding the construction of rule 86(q).
  2. [66]
    Given our findings generally with respect to grounds 1, 2 and 3 it is unnecessary for us to consider grounds 4 and 5 and we refuse leave in respect of those grounds.
  3. [67]
    The appeal is dismissed.

Footnotes

[1]  Transcript of Evidence in the Hearing conducted 22 September 2016, 1-12.

[2]  Previous s 152A and previous chapter 3, part 3 continue to apply to the decision of a constituted board and any review of the decision if an aggrieved person is given a QCAT information notice for the decision made before, on or after the commencement of s 221 of the Racing Act.

[3]  Racing Act, s 149S(1), s 149S(2).

[4]  (1938) 60 CLR 336.

[5]  QCAT Act, s 142(3), 143(2)(b).

[6]  Racing Act, s 114.

[7]  Racing Act, s 101.

[8]  GAR, r 7.

[9]  Racing Act, s 91(2).

[10] Law v National Greyhound Racing Club Ltd [1983] 3 All ER 300, 303; Wallace v Queensland Racing [2007] QDC 168, [23].

[11]  [2015] VSC 527, [32], per Bell J.

[12]Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 347-8, 352, per Mason J.

[13]Chamber Colliery Co Ltd v Twyerould [1915] 1 Ch 268, 272, per Watson LJ; SA Maritime Et Commerciale of Geneva v Anglo-Iranian Oil Co Ltd [1954] 1 WLR 492, 495, Somervell LJ, 496, Romer LJ.

[14] Wilkie v Gordon Runoff Ltd & Anor (2005) 221 CLR 522, 529 [16], per Gleeson CJ, McHugh J.

[15]  DC Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014), Ch 5.

[16]  Ibid, 367-370 [9.8]-[9.11]; Australian Broadcasting Commission v Australian Performing Right Association Ltd (1973) 129 CLR 99, 109, per Gibbs J.

[17]Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd & Ors (2004) 219 CLR 165, 179 [40], Glesson CJ, Gummow, Hayne, Callinan and Heydon JJ.

[18]Riley v Racing Victoria Ltd [2015] VSC 527, [32].

[19]  Ibid, [36].

[20]  Ibid, [37]-[38].

[21]  Ibid, [40].

[22] Kunde v Queensland All Codes Racing Industry Board [2016] QCAT 430, [21]-[22].

[23]  A similar approach to construction was applied in relation to whether “knowledge” was a requirement of certain Rules of Racing Victoria in Racing Victoria Limited v Kavanagh [2017] VSCA 334, per McLeish JA and Cavanough AJA.

[24]  [2015] QSC 293.

[25]  Ibid, [44].

[26]  Applicant’s Outline of Submissions in Reply filed 18 April 2017.

[27]Kunde v Queensland All Codes Racing Industry Board [2016] QCAT 430, [29].

[28]  Ibid, [32]-[33].

[29] He Kaw Teh v The Queen (1985) 157 CLR 523; Racing Victoria Limited v Kavanagh [2017] VSCA 334.

[30]  [2011] HCA 43, [35].

[31]  The Code, s 4.1(5).

[32]  Section 4.3 of the Code states the principles of criminal responsibility for the omission to act under the laws of the Commonwealth. It provides:

  Omissions

  An omission to perform an act can only be a physical element if:

(a) the law creating the offence makes it so; or

(b) the law creating the offence impliedly provides that the offence is committed by an omission to perform an act that by law there is a duty to perform.

[33] Commonwealth Director of Public Prosecutions v Poniatowska [2011] HCA 43, [29].

[34]Wallace v Queensland Racing [2007] QDC 168, [23].

[35] Gapes v Commercial Bank of Australia Ltd (No 2) (1979) 27 ALR 87, 112.

[36] Riley v Racing Victoria Ltd [2015] VSC 527, [37]-[38].

[37]  Rule 86B, which applies from 20 April 2015.

Close

Editorial Notes

  • Published Case Name:

    Queensland Racing and Integrity Commission v Tracy Kunde

  • Shortened Case Name:

    Queensland Racing and Integrity Commission v Kunde

  • MNC:

    [2017] QCATA 133

  • Court:

    QCATA

  • Judge(s):

    Member Allen, Member Traves

  • Date:

    14 Dec 2017

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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