Queensland Racing Integrity Commission v Scott
[2018] QCATA 195
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Queensland Racing Integrity Commission v Scott[2018] QCATA 195
- Add to List
Queensland Racing Integrity Commission v Scott[2018] QCATA 195
Queensland Racing Integrity Commission v Scott[2018] QCATA 195
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland Racing Integrity Commission v Scott [2018] QCATA 195 |
PARTIES: | QUEENSLAND RACING INTEGRITY COMMISSION (applicant/appellant) |
| v |
| RACHEL LEIGH SCOTT (respondent) |
APPLICATION NO/S: | APL260-18 |
ORIGINATING APPLICATION: | OCR252-16 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 19 November 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson Member Kanowski |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where decision of Tribunal setting aside disqualification of trainer and substituting suspension – where stay sought of substituted decision – where alleged prejudice of reconciling suspension with disqualification if appeal successful Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 122(2), s 142, s 145 Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453 Day v Humphrey [2017] QCA 104. Hessey-Tenny v Jones [2018] QCATA 131 Queensland Racing Integrity Commission v Vale [2017] QCATA 46 |
REPRESENTATION: |
|
Applicant: | RJ Anderson QC |
Respondent: | O'Connor Ruddy & Garrett, Solicitors |
APPEARANCES: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). |
REASONS FOR DECISION
- [1]On 2 October 2018 the applicant filed an application for leave to appeal or appeal a decision of the Tribunal made on 3 September 2018 setting aside the decision of the Stewards, disqualifying the respondent, a harness racing trainer, for 15 months and imposing instead a conditioned suspension of the applicant’s licence for a period of 3 months and a fine of $6,000. The period of suspension commenced on 18 September 2018. Though not clearly articulated, the grounds of appeal allege error of law on the part of the Tribunal.[1] On that basis, leave to appeal is not required.[2]
- [2]The present application, seeking an order to stay the decision of the Tribunal until the final determination of the appeal, was also filed on 2 October 2018.
- [3]In accordance with directions made on 11 October 2018, the stay application was determined on the papers and on 19 November 2018 the application was refused. Pursuant to s 122(2) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act), the Applicant subsequently requested written reasons for that decision.
- [4]Section 145 of the QCAT Act provides, in part:
- (1)The start of an appeal under this division against a decision does not affect the operation of the operation of the decision or prevent the taking of action to implement the decision.
- (2)However, the tribunal may make an order staying the operation of the decision being appealed against until the appeal is finally decided.
- (3)The tribunal may act under subsection (2) on the application of the appellant or on its own initiative.
- [5]
“The decision of this Court in Berry v Green suggests that it is not necessary for an application for a stay pending appeal to show ‘special or exceptional circumstances’ which warrant the grant of the stay. Nevertheless, it will not be appropriate to grant a stay unless a sufficient basis is shown to outweigh the considerations that judgments of the Trial Division should not be treated as merely provisional, and that a successful party in litigation is entitled to the fruits of its judgment. Generally speaking, courts should not be disposed to delay the enforcement of court orders. The fundamental justification for staying judicial orders pending appeal is to ensure that the orders which might ultimately be made by the courts are fully effective: the power to grant a stay should not be exercised merely because immediate compliance with orders of the court is inconvenient for the party which has been unsuccessful in the litigation.”
- [6]
“[5] An applicant for a stay must demonstrate some reason why a judgment should not be given immediate effect. The test applicable on an application to stay a judgment pending an appeal is simply expressed as being whether the case is an appropriate one for a stay.
[6] The test reflects a wide discretion reposed in the Court and authority establishes that there are some traditional factors to be taken into account on the application, namely whether:
- (a)there is a good arguable case;
- (b)the applicant will be disadvantaged if the stay is not granted; and
- (c)there is some compelling disadvantage to the respondent if a stay is granted, which outweighs the disadvantage suffered by the applicant.”
- [7]Where, as in the present case, there are arguable grounds of appeal, the focus is placed on the competing advantage and disadvantage if the stay be granted or not.[7]
- [8]In submissions filed in support of the stay application, the applicant states that if the appeal is successful the penalty will not only be increased in terms of length but may also require that it be served by way of disqualification rather than suspension. The requirement to pay a fine might also be removed. In relation to the latter, the applicant concedes that if the application for a stay were successful, it would have required a refund of the fine that has been paid. Accordingly, any disadvantage to the parties rests on the effect of continuance of the suspension pending the outcome of the appeal. No other potential disadvantage is identified by the applicant. This is not a case where unless a stay is granted an appeal will be rendered nugatory.[8]
- [9]The applicant contends that where the suspension has been partly served, the Tribunal will be required to determine how to bring that into account should it be substituted by a period of disqualification. Two responses are made in relation to that contention. First, that issue arose regardless of the outcome of the stay application. That is because the respondent commenced the period of suspension prior to the decision of the Tribunal to refuse the stay application. Second, the applicant provides its own answer to the contention. In its submissions, the applicant referred to the decision in Queensland Racing Integrity Commission v Vale,[9] where the Tribunal noted the parties’ concession that a two week period of suspension was equivalent to a period of disqualification for one week.
- [10]It would seem that any disadvantage thus arising would lie with the respondent, who opposed the stay application. As noted by the respondent, if the appeal is successful and she has to undergo a further period of suspension or disqualification, the three month suspension will be taken into account and the penalty adjusted accordingly. The respondent also submits that the fact that the suspension will end and the training licence will be reinstated prior to the hearing of the appeal is not prejudicial to the applicant or the industry, as from the time of her initial disqualification in April 2016 she was granted a stay pending review of that decision.
- [11]In relation to potential disadvantage to the respondent, the respondent submits that if the stay were granted the suspension would stop mid-way and if the appeal were dismissed the respondent would then be required to serve the balance of her suspension at a much later date.
- [12]In the circumstances of this case, the applicant has failed to demonstrate that it is appropriate to exercise the discretion to stay the decision of the Tribunal. Accordingly, the application for a stay is refused.
Footnotes
[1] See s 142 Queensland Civil and Administrative Tribunal Act 2009.
[2] As to the grant of a stay where leave to appeal is required, see Hessey-Tenny v Jones [2018] QCATA 131 at [18]-[24].
[3] [2008] 2 Qd R 453.
[4] [2008] 2 Qd R 453, at [12] (footnotes and references omitted).
[5] [2017] QCA 104.
[6] At [5] – [6], and omitting footnotes and citations.
[7] See Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd at [13] – [15]; Hessey-Tenny v Jones [2018] QCATA 131 at [29].
[8] As to which, see Hessey-Tenny v Jones [2018] QCATA 131 at [30]-[32].
[9] [2017] QCATA 46 at [47].