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Rattray v Queensland Racing Integrity Commission (No 2) QCATA 149
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Rattray v Queensland Racing Integrity Commission (No 2)  QCATA 149
KENNETH LINDSAY RATTRAY
QUEENSLAND RACING INTEGRITY COMMISSION
17 October 2019
On the papers
Judge Sheridan and Member King-Scott
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where appellant’s appeal dismissed by the Appeal Tribunal – where the respondent seeks costs of that appeal – whether costs order in the interests of justice
Commercial and Consumer Tribunal Act 2003 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Racing Integrity Act 2016 (Qld)
Kavanagh v Racing Victoria Ltd  VCAT 386, cited
Kavanagh v Racing Victoria Ltd  VSCA 334, cited
Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2)  QCAT 412, cited
Tamawood Ltd & Anor v Paans  QCA 111, cited
J E Murdoch QC instructed by O'Connor Ruddy & Garrett Solicitors
J M Horton QC, with A R Hellewell instructed by the Queensland Racing Commission
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
- On 10 April 2018, the Appeal Tribunal dismissed Mr Rattray’s appeal from the earlier decision of the Tribunal that affirmed the conviction of Mr Rattray under r 190(1) of the Australian Harness Racing Rules.
- The respondent to the appeal, the Queensland Racing Integrity Commission, now seeks its costs of the appeal.
- The starting point in considering the question of costs is s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) which provides that each party must bear their own costs for the proceeding unless otherwise provided by the QCAT Act or an enabling Act. The Racing Integrity Act 2016 (Qld), the enabling Act makes no provision about costs of an appeal.
- Section 102 provides that the tribunal may, in the exercise of its discretion, make an order requiring a party to a proceeding to pay all or the stated part of the costs of the other party. In exercising its discretion, the tribunal should consider:
- (a)whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party;
- (b)the nature and complexity of the dispute;
- (c)the relative strengths of the claims by each of the parties; and
- (d)the financial circumstances of the parties involved;
- (e)anything else the tribunal considers relevant.
- In addition, for a reviewable decision, a further consideration is whether the applicant was afforded natural justice by the decision-maker, and whether the applicant genuinely attempted to assist the decision-maker to make the decision.
- If the tribunal decides to award costs, the tribunal must fix those costs, if possible. If this is not possible, the tribunal may order that costs be assessed under the rules.
- The respondent makes the following submissions in support of its application that the appellant pay the costs of and incidental to the appeal:
- (a)Matters relevant to the exercise of power under s 102(3) of the QCAT Act to depart from the default position that each party ought to bear their own costs, in this case are:-
- the relative strength of the claims by each of the parties to the proceeding;
- the nature and complexity of the dispute; and
- the appellant being afforded natural justice by the decision-maker for the original decision.
- (b)The appellant failed entirely in the appeal and the decision of the Member below was confirmed;
- (c)The appellant pleaded guilty at the outset and did not seek to withdraw the plea. It was necessary for him to convince the Tribunal that his conviction ought to be set aside despite him having entered a guilty plea. He failed to do so. No miscarriage of justice was found and he failed on this threshold issue;
- (d)Both parties were represented by Senior Counsel and the matters raised by the appellant were sufficiently technical to justify their appearance, and in the circumstances, the respondent ought not be precluded from recovering costs that were reasonably necessary to achieve a satisfactory outcome.
- In responding to the factors in s 102(3) of the QCAT Act relied upon by the respondent, the appellant submitted:-
- (a)In relation to the nature and complexity of the proceeding:
- the appeal involved a consideration as to whether there had been a miscarriage of justice sufficient to affect the validity of the appellant’s plea below for which it was necessary to examine the method of analysis of both samples and compliance with the Australian Harness Racing Rules (Rules);
- the appeal involved questions of interpretation of the Rules and whether there had been compliance with the Racing Act current at the time;
- the appeal proceeding was not complex and did not involve difficult or novel concepts of law that required complex reasoning to enable the Tribunal to make a decision; and
- when the appeal was heard the parties did not have the benefit of the Victorian Court of Appeal decision in Racing Victoria Ltd v Kavanagh;
- (b)The decision to file an application for appeal was reasonably based; and
- (c)The respondent disclosed a document relevant to the appellant’s case at the hearing of the appeal. The document was not available at the time the appeal was instituted.
- The appellant was charged with an offence under rules that imposed a strict liability. He was unable to explain how a prohibited substance found its way into his horse. Neither inadvertence nor negligence was a defence. It was submitted he pleaded guilty to the offence because of the alleged misrepresentation of the Chairman of Stewards that both samples could be analysed at the same laboratory. Subsequently, he challenged the admissibility of the results when he became aware that, in carrying out the analysis at the same laboratory, there may have been a contravention of the Rules. He did not seek to withdraw his guilty plea.
- Essentially, the appellant challenged the presumptive effect of the certificates of analysis by questioning whether all links in the chain of approvals necessary for the analysts and laboratory to conduct the analysis were connected and satisfied. In this he failed, partially because the respondent, albeit at a late stage, was able to satisfy the Appeal Tribunal that all approvals were in order.
- The appellants argument on this point, initially, was strengthened by the decision of Garde J in Kavanagh v Racing Victoria Ltd, where His Honour found that the consequence of the substantial departure from the requirements of the rules (evidentiary value of certificates) must lead not only to the inadmissibility of the certificates but also to the inadmissibility of other evidence of analysis based on the samples taken. That finding was set aside by the Court of Appeal.
- In any case, this Appeal Tribunal determined that it was not necessary to decide this issue. That was on the basis that all appropriate approvals had been obtained and authority properly delegated.
- In determining whether it is in the interests of justice to award costs against another party the matters to which the Appeal Tribunal may have regard include the nature and complexity of the dispute and the relative strengths of the claims made by each of the parties.
- Keane JA (as he then was) in Tamawood Ltd & Anor v Paanswas of the view that where the complexity of the matter justified legal representation, it would not be in the interests of justice to bar the successful party from recovering costs that were reasonably necessary to achieve a satisfactory outcome. That decision was made under the now repealed Commercial and Consumer Tribunal Act 2003 (Qld). In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) Justice Alan Wilson, then President, nevertheless considered that the principles espoused therein provided guidance about the circumstances in which it may be in the interests of justice for the tribunal to award costs against a party.
- We are of the opinion that the issues arising in this appeal, although of short compass, were complex and justified the parties being legally represented.
- Further, the appellant had the benefit of a full hearing before the Member where all issues were fully canvassed. He chose to appeal, even though he had long since served the period of disqualification. His appeal was not necessitated to avoid potential financial loss caused by any period of suspension. We were advised that the appellant remained aggrieved by the decision which was a blot on his record as a licensee. That may be so. Nevertheless, the appeal tested the legitimacy of the respondent’s system of analysis of potential prohibitive substances and its means of proof of offences under the Rules. The appellant was unsuccessful in proving any inadequacy of the system sufficient for him to succeed.
- The late disclosure of the documents, by the respondent, that completed the chain of delegation, and the overturning of the Kavanagh decision by the Victorian Court of Appeal is not considered sufficient to deprive the respondent of its costs.
- In the interests of justice, the respondent should recover its costs.
- Accordingly, the orders of the Appeal Tribunal are:
- The appellant pay the respondent’s costs of the appeal.
- The costs shall be as agreed and in default of agreement as assessed on the District Court scale.
- The costs shall be assessed by an assessor to be agreed by the parties and in default of agreement appointed by the Tribunal.
- The appellant shall pay the costs (as agreed or as assessed) within 28 days of receipt of such agreement or assessment.
 Rattray v Queensland Racing Integrity Commission  QCATA 39.
 Queensland Civil and Administrative Act 2009 (Qld), s 102 (3) (a).
 QCAT Act, s 102(3)(b).
 QCAT Act, s 102(3)(c).
 QCAT Act, s 102(3)(e).
 QCAT Act, s 102(3)(f).
 QCAT Act, s 102(3)(d)(i) and (ii).
 QCAT Act, s 107(1) and (2).
  VSCA 334.
 Instrument of Delegation which delegated the Chief Executive Office powers to, inter alia, approve analysts.
  VCAT 386.
 Racing Victoria Ltd v Kavanagh  VSCA 334.
 Rattray v Queensland Racing Integrity Commission  QCATA 39, .
 QCAT Act, s 102 (3).
  QCA 111.
  QCAT 412 .
- Published Case Name:
Rattray v Queensland Racing Integrity Commission (No 2)
- Shortened Case Name:
Rattray v Queensland Racing Integrity Commission (No 2)
 QCATA 149
Sheridan J, Member King-Scott
17 Oct 2019