Wayne Waltisbuhl v Queensland Racing Integrity Commission
[2021] QCATA 94
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- Wayne Waltisbuhl v Queensland Racing Integrity Commission[2021] QCATA 94
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Wayne Waltisbuhl v Queensland Racing Integrity Commission[2021] QCATA 94
Wayne Waltisbuhl v Queensland Racing Integrity Commission[2021] QCATA 94
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Wayne Waltisbuhl v Queensland Racing Integrity Commission [2021] QCATA 94 |
PARTIES: | Wayne WALTISBUHL (applicant/appellant) v QUEENSLAND RACING INTEGRITY COMMISSION (respondent) |
APPLICATION NO/S: | APL127-21 |
ORIGINATING APPLICATION NO/S: | OCR276-19 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 23 July 2021 |
HEARING DATE: | 21 July 2021 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson |
ORDERS: | The application to stay a decision filed on 6 May 2021 is refused. |
CATCHWORDS: | APPEALS AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – Where application to stay decision pending outcome of appeal – Whether stay should be allowed Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 145 Cellante and Ors v G Kallis Industries Pty Ltd [1991] 2 VR 653 Crinis v Ray White Paradise Group [2016] QCATA 90 Frugtniet v Law Institute of Victoria Ltd [2011] VSCA 184 Graham v Queensland Racing Integrity Commission [2019] QCAT 198 Maher v Commonwealth Bank of Australia [2008] VSCA 122 Maund v Racing Victoria Ltd [2015] VSCA 276 Queensland Racing Integrity Commission v Scott [2019] QCATA 121 Waltisbuhl v Queensland Racing Integrity Commission [2021] QCAT 132
|
APPEARANCES & REPRESENTATION: | |
Applicant: | W Waltisbuhl, Self-represented |
| Respondent: | R Anderson instructed by Melanie Johnston (QRIC) |
REASONS FOR DECISION
- [1]The present application is an application to stay a decision of the Tribunal in matter OCR276-19, pending a determination of the application for leave to appeal or appeal that decision.
- [2]The decision in OCR276-19 was made on 21 April 2021 and the appeal was filed on 6 May 2021. The decision of the Tribunal at first instance confirmed a decision of the respondent made on 2 December 2019. That decision arose from charges of presentation of a horse to race on four occasions with prohibited substances in its system (arsenic and cobalt). With certain of the charges relating to arsenic, fines were imposed, while for the charges relating to cobalt a 12 month period of suspension was imposed. The appeal is confined to the decision to impose a suspension for the cobalt related charges. It is not disputed that there was a breach of the relevant rules of racing.
- [3]
[37] A successful party is entitled to the fruits of its litigation. The orders of the Tribunal, exercising its original decision, are final, and not merely provisional subject to the initiation of appellate proceedings. The original jurisdiction of the Tribunal is not to be converted into a forum for the testing or refinement of arguments to be properly ventilated on appeal.
[38] Therefore, the applicant must present compelling reasons for the Appeal Tribunal to exercise its discretion to grant a stay of the operation of the original decision. This must be supported by sufficient evidence to establish the necessary facts relied on by the applicant in support of the stay.
[39] The applicant must satisfy the following criteria to obtain a stay of the original decision:
- the applicant must present a reasonably arguable case for obtaining effective relief in the substantive proceedings;
- the applicant must establish that a refusal of the stay would cause a material detriment to the applicant; and
- the applicant must demonstrate that the balance of convenience favours the granting of a stay of the operation of the original decision.
[40] These requirements are cumulative. If the applicant fails to discharge any one of the three requirements, the applicant must fail. (footnotes omitted)
- [4]The principles governing the power to grant a stay pending an appeal were also set out by Dodds-Stretton JA, with whom Redlich JA agreed, in Maher v Commonwealth Bank of Australia,[2] as follows:
[19] The principles governing a stay of execution of judgment pending the hearing and determination of an appeal are well established.
[20] Prima facie, a successful party is entitled to the benefit of the judgment obtained below and the presumption that the judgment is correct. The applicant for a stay therefore bears the onus of demonstrating that a stay is justified.
[21] In Cellante and Ors v G Kallis Industries Pty Ltd (‘Cellante’), Young CJ (with whom Brooking J agreed), cited with approval the observation of Mahoney JA (with whom Moffit P and Glass JA agreed) in Re Middle Harbour Investments Ltd (in liq)[3] that:
…where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party.
[22] Young CJ concluded that an applicant for a stay under Rule 66.16 must show special or exceptional circumstances to take the case out of the general rule that an appeal does not operate as a stay.[4]
[23] The Court has a wide discretion, which is not circumscribed by rigid rules. It should take into account all the circumstances of the case.
[24] In Scarborough’s v Lew’s Junction Stores Pty Ltd (approved in Cellante), Adam J recognized that special circumstances might exist where a successful appellant would be deprived of the fruits of the appeal if a stay of execution were not granted. In such a case, the appeal might be rendered nugatory.
[25] In Cellante, Young CJ stated that special circumstances would ‘exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed’.
[27] The prospect that the appeal may be rendered nugatory must be balanced against the principle that the successful party is entitled to the fruits of the judgment. A stay should not be granted unless there is at least an arguable ground of appeal, although otherwise speculation as to the ultimate prospects of success is usually inappropriate. (footnotes omitted)
- [5]In Maund v Racing Victoria Ltd,[5] it was stated: ‘where the decision in question includes a disciplinary penalty imposed under a regulatory scheme, particular care may need to be exercised before a stay as granted’. Reference was made to the decision in Frugtniet v Law Institute of Victoria Ltd,[6] which involved legislation regulating the legal profession, and to the need to protect the public.[7] However, in distinguishing that case, it was added:
While the role of a racehorse owner is not an unimportant role in our community and misconduct by a trainer has the potential to impact on the interests of various persons and on public confidence in the integrity of racing, the nature of the risk to the public is somewhat different from that under consideration in Frugtniet.
- [6]A stay hearing in the present matter was conducted on 21 July 2021. At that hearing, it was accepted by the parties that the applicant has completed approximately 9 months of his suspension, with approximately 3 months remaining.
- [7]Prior to that hearing, on 7 July 2021, the applicant filed a one-page statement in support of the stay application. He there refers to a colt coming from Ireland which he needs to have qualified and prepared before commencing his suspension, if unsuccessful in the appeal. He also says that he is waiting for a new trainer to regain his licence.
- [8]The respondent opposes the granting of a stay, submitting that there has been no material filed or submissions made dealing with the matters referred to in Crinis. It is submitted that there is no reasonable prospect of success on appeal, or, alternatively, the prospects are so low that the balance of convenience does not favour a stay.
- [9]The issue before the Appeal Tribunal is one of penalty only. In the Tribunal at first instance it was held that the applicant demonstrated ‘a degree of carelessness’ in the use of products given to the horse and that he ‘was clearly aware of the Rules and the requirement to present a horse to a race free of prohibited substances’.[8] Counsel for the respondent referred to the decisions in Queensland Racing Integrity Commission v Scott[9] and Graham v Queensland Racing Integrity Commission,[10] where suspensions for 12 months were imposed and it is submitted that, by analogy, the penalties applied in the present case, far from being manifestly excessive, were ‘well within the range of comparable cases’.[11]
- [10]It is difficult to speculate on the prospects of success on appeal, in good measure because the applicant did not directly address that question, and, in those circumstances, it is not appropriate for the Tribunal to draw any definitive conclusion. However, as noted in Maher, it remains that the applicant has the onus of demonstrating that a stay is justified. Also, as noted in Crinis, not only must the applicant present a reasonably arguable case for obtaining effective relief in the substantive proceedings, he must also demonstrate that the balance of convenience favours the granting of a stay of the operation of the original decision. Again, that issue was not directly addressed by the applicant.
- [11]To some extent, any prejudice to the applicant can be ameliorated by setting the matter down for an early hearing. The parties are in agreement to that course being taken. To that end, the matter has been listed for a Tribunal hearing on 16 August 2021.
- [12]In the circumstances outlined above, the application to stay a decision should be refused.
Footnotes
[1][2016] QCATA 90, [37]-[40].
[2][2008] VSCA 122, [19]-[27]. See also Maund v Racing Victoria Ltd [2015] VSCA 276, [33].
[3][1977] 2 NSWLR 652.
[4]As with s 145 of the Queensland Civil and Administrative Tribunal Act (QCAT Act), in effect, rule 64.25 of the Supreme Court (General Civil Procedure) Rules (Vic) provided that an appeal did not affect the operation of a decision, but, under rule 66.16, the court may make an order staying the operation of the decision. The rule itself did not require special or exceptional circumstances.
[5][2015] VSCA 276, [39].
[6][2011] VSCA 184.
[7][2015] VSCA 276, [39].
[8]Waltisbuhl v Queensland Racing Integrity Commission [2021] QCAT 132, [27], [30].
[9][2019] QCATA 121.
[10][2019] QCAT 198. It is noted that the decision in Graham has been appealed.
[11]Submissions on behalf of the Respondent, [14].