Queensland Racing Integrity Commission v Gafa
[2022] QCATA 148
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- Unreported Judgment
- Queensland Racing Integrity Commission v Gafa[2022] QCATA 148
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Queensland Racing Integrity Commission v Gafa[2022] QCATA 148
Queensland Racing Integrity Commission v Gafa[2022] QCATA 148
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Queensland Racing Integrity Commission v Gafa [2022] QCATA 148 |
PARTIES: | QUEENSLAND RACING INTEGRITY COMMISSION (applicant/appellant) v DAVID GAFA (respondent) |
APPLICATION NO/S: | APL132-21 |
ORIGINATING APPLICATION NO/S: | OCR123-20 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 30 September 2022 |
HEARING DATE: | 26 May 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Aughterson |
ORDERS: |
|
CATCHWORDS: | ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – where thoroughbred racing trainer charged with committing act of cruelty to a horse – whether period of suspension can continue beyond date of expiration of licence – whether wrong principle applied – whether penalty manifestly inadequate APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – whether wrong principles applied – whether suspension manifestly inadequate Australian Rules of Racing (as at 19 February 2020), AR 1, AR 8, AR 175(n), AR 183B, AR 183F, AR 193 Australian Rules of Racing (as at 8 April 2021), AR 1, AR 231, AR 267, AR 270, AR 277 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146 Racing Act 2002 (Qld), s 101 Racing Integrity Act 2016 (Qld), s 58 Racing (Transitional) Regulation 2016 (Qld), reg 4 Standard for Licensing Scheme Thoroughbreds V2.03, para B1.13 Cole v Harness Racing Victoria (Review and Regulation) [2018] VCAT 1930 Harness Racing Victoria v Chisholm (Review and Regulation) [2017] VCAT 1620 In the Matter of the Appeal of Delaney and Bashford (Racing Appeal Panel of NSW, 10 February 2017) Lee v Crime and Corruption Commission; Crime and Corruption Commission v Lee [2020] QCA 201 Licciardello v McPherson [2012] ACTSC 31 Queensland Racing Integrity Commission v Gilroy [2016] QCATA 146 Queensland Racing Integrity Commission v Vale [2017] QCATA 46 |
APPEARANCES & | |
Appellant: | AC Freeman, of counsel, instructed by the appellant |
Respondent: | Self-represented |
REASONS FOR DECISION
- [1]The question on this appeal is whether a thoroughbred trainer’s licence can be ‘suspended’ once it has expired?
- [2]The respondent (the applicant in the review at first instance) held a thoroughbred trainer’s licence. On 18 November 2016, in endeavouring to induce the foal ‘Bonnie’ onto a float, the respondent committed what were said to be acts of cruelty, which acts were proscribed by Rule 175(n) of the then Australian Rules of Racing (‘the Rules’).[1] On 25 January 2017, the respondent was given a notice of immediate suspension of the licence. Following a stewards’ enquiry,[2] the licence was suspended for a period of three years and 25 days, from 25 January 2017 (the date of initial suspension) to 19 February 2020, the date of the decision of the stewards. While there were two disciplinary charges, they arose out of a single chain of events and the stewards imposed a single penalty.
- [3]The licence had in fact expired on 31 July 2017. The Tribunal at first instance held that the licence could not be suspended once it had expired, because in that event there is no licence to suspend. On that basis, the penalty was set aside and there was a substituted decision that the licence be suspended for the period 25 January 2017 to 31 July 2017, a period of a little over six months. While that accords with the date of the initial suspension and the expiration of the licence, it is not apparent from the reasons for the decision what the Tribunal Member otherwise considered to be an appropriate period of suspension.
- [4]The question on appeal is whether the penalty is appropriate. There are two grounds of appeal, which, in essence, are:
- (a)the Tribunal erred in law in concluding that it could not impose a suspension that extended beyond the date of expiration of the licence; and
- (b)the penalty imposed by the Tribunal was manifestly inadequate.
- (a)
- [5]As the grounds of appeal raise questions of law,[3] the appeal is of right and imports s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’). Further reference will be made to that provision later in these reasons.
- [6]Rule 175 of the Rules provided:[4]
The Principal Racing Authority (or the Stewards exercising powers delegated to them) may penalise;
…
(n) Any person who in their opinion commits or commissions an act of cruelty to a horse …
- [7]In Rule 1, the term ‘penalty’ ‘includes the suspension or partial suspension of any licence, disqualification and the imposition of a fine, and “penalise” has a corresponding meaning’. The term ‘suspension’ ‘means the temporary withdrawal in whole or in part of any licence, permit, permission, right or privilege granted under the Rules’.
- [8]The respondent did not appear at the appeal hearing. However, following that hearing, a Directions Hearing was held at which directions were issued requiring the respondent to file any written submissions in support of his appeal by 18 July 2022. No submissions have been filed.
Ground 1
- [9]Ground 1 of the appeal is that the Tribunal erred in concluding that it could not impose a suspension that extended beyond the expiration of the licence. In the reasons for the decision, the Tribunal Member stated:[5]
The Commission informs me, and I accept that (the licence) of Mr Gafa expired on 31 July 2017. The Commission submits it is still appropriate to suspend for the period that the stewards suspended. In my view, that is not logical to suspend a licence once it is expired. A licence can only meaningfully be suspended while it is current. Once it is expired, there is no licence to suspend.
… I am going to set aside the sanction in this case, because I consider the sanction imposed is illogical involving a suspension for a period well beyond the expiry date of the licence.
- [10]Certainly, there is a conceptual difficulty in the notion of suspending something that has expired and no longer exists. That is reflected in the decision of the Supreme Court of the ACT in Licciardello v McPherson.[6] That case involved a charge in 2006 of driving while the appellant’s driver licence had been suspended for fine default. The licence was suspended in 1990 and the licence expired in 1994. The fines were not paid and the suspension was never lifted. It was held that while the appellant might have been charged with driving while unlicensed, once the licence had expired it could not be said that the licence was suspended and, accordingly, the conviction was set aside.[7]
- [11]However, the suspension of a trainer licence does not simply entail the suspension of a right to train racehorses.[8] It also entails the suspension of other rights, including employment at a racing stable and, potentially, entry to a racecourse and participation in media in relation to racing. Then rule 183B provided:[9]
Except with the consent of the Principal Racing Authority or the Stewards who imposed the suspension, a suspended trainer or a person holding a permit to train shall not during the period of that suspension:-
- (a)As a trainer or permit holder, nominate a horse for a race, official trial or jump-out; or
- (b)Train or participate in any way in the training of any racehorse; or
- (c)Be registered as a stablehand, or be employed or act or be involved in any capacity in any racing stable.
- [12]Further, then rule 183F provided:[10]
In addition to any of the restrictions that may apply to a suspended person under the Rules, the Principal Racing Authority or the body which imposed the suspension may order the suspended person:
- (1)not to enter designated places at racecourses except at times or on conditions as may be specified in the order;
- (2)not to participate in social media or mainstream media in relation to any racing or wagering matter; and
- (3)to adhere to such other restrictions as may be necessary or desirable to prevent conduct by the suspended person that could be prejudicial to the image or interests or welfare of racing.
- [13]Also, by para B1.13 of the Standard for Licensing Scheme Thoroughbreds,[11] a person may apply for renewal of a licence within 60 days after its expiration. If a suspension ends with the expiration of the licence, presumably it would mean that the prior suspension would not necessarily bar any renewal of the licence after it had expired.
- [14]It would be anomalous and contrary to the evident intention of the statutory provisions if a trainer could avoid an appropriate period of suspension because of the pending expiration of their licence. Also, given that, at that time, licences were issued on an annual basis,[12] it would mean that a suspension could, at a maximum, have been for a period of less than one year. On the other hand, rule 193 provided that a steward may suspend a licence ‘for such term as they think fit’.[13]
- [15]Also, disciplinary proceedings have a protective purpose. It would not be compatible with either general or specific deterrence if suspension ended (including any restriction on other rights or privileges) within an inappropriately short period after the imposition of the penalty. The maximum penalty would then be determined by the remaining duration of the licence, which, of course, will differ from case to case. On that basis, there would be no consistency in the imposition of penalties. Consistency is important in order to ensure equality of treatment and to assist those involved in the industry to anticipate the consequences that will flow from given conduct.[14]
- [16]The Tribunal Member fell into error in concluding that any period of suspension could not extend beyond the date of the expiration of the licence. Accordingly, the penalty imposed by the Tribunal Member is set aside. In accordance with s 146 of the QCAT Act, that raises the question of whether the Appeal Tribunal should substitute its own decision on penalty or whether the matter should be referred back to the Tribunal for determination. In the present case, there appears to be no reason why the penalty cannot be determined by the Appeal Tribunal, particularly given the extensive comments on relevant issues made by the Tribunal Member. The time and cost involved in referring the matter back to the Tribunal is not warranted in this case. The question of what is the appropriate penalty is discussed below.
Ground 2
- [17]Ground 2 of the appeal is that the penalty imposed by the Tribunal was manifestly inadequate. As stated by Thomas J in Queensland Racing Integrity Commission v Vale:[15]
[20] The asserted error of law is the imposition of a penalty which was manifestly inadequate.
[21] An error of law will arise only if the penalty is either unreasonable or plainly unjust, or if it is clear that the Board has acted upon the wrong principle, or taken account of extraneous matters in formulating the decision, or failed to take material considerations into account. As was said in the case of Queensland All Codes Racing Industry Board v Abbott, it must be shown that the decision is plainly unjust or unreasonable, and involved a clear misapplication of the discretion.
[22] A party does not succeed in establishing an error of law merely because the Appellate Tribunal might, itself, have imposed a different penalty from that which was imposed. (footnotes omitted)
- [18]For the reasons outlined above, it is evident that the Tribunal at first instance did act upon a wrong principle. However, it is not apparent what the Member would have considered to be an appropriate penalty were it not for the perceived difficulty in relation to the expiration of the licence. Nevertheless, observations made by the Tribunal Member are relevant to that determination.[16]
- [19]Broadly, the allegations were that the respondent lassoed the thoroughbred foal, restricting her airways and causing distress, and unnecessarily restrained her to the point of exhaustion. Further, the respondent persisted in attempting to lead the foal onto a horse float, which caused her to resist, rear, and fall on a number of occasions, resulting in significant injury. The injuries referred to by witnesses included ‘a bruised right eye, an approximately 10 centimetre cut to the inside of her right elbow, and numerous cuts and bruises to her legs’. The respondent persisted with the attempt to get the foal onto the float despite concerns expressed to him by third parties who were present at the time.
- [20]The respondent faced criminal charges in relation to the incident and was found not guilty. The present disciplinary proceedings involve an allegation of cruelty. At rule 1 of the Rules, ‘cruelty’ is defined as including ‘any act or omission as a consequence of which a horse is mistreated’. The foal died a ‘couple of days’ afterwards, though it was not alleged that the present incident caused the death.
- [21]The Tribunal Member stated that the allegations were very serious, a very substantial struggle had occurred, the respondent downplayed the seriousness of the incident, and that the better course was not that adopted by the respondent; that is, holding onto the foal while she thrashed and resisted. The Tribunal Member also rejected the assertion of the respondent that injury to the foal’s head, when she reared up and hit her head on a post, followed the administration of a sedative. It was found that this was an ‘invention’ and intended to shift the blame to the third person said to have administered the sedative. It was found that cruelty had been established.
- [22]On the other hand, it was found that the respondent subsequently accepted that he had made a mistake and had tried to nurse the foal back to good health. It was also found that there were extenuating circumstances. In particular, the behaviour of the foal was unusual and unexpected, reacting with unusual and extreme resistance, and the conduct of the respondent was not premeditated. Several favourable references were also referred to.
- [23]It seems that there is a dearth of relevant precedents in relation to penalty. The Tribunal Member referred to In the Matter of the Appeal of Delaney and Bashford,[17] where one trainer was disqualified for an effective period of three years and another for an effective period of 18 months. The case involved an allegation of cruelty in circumstances where a horse’s wound was treated with an unsuitable homemade remedy which caused the horse’s death. It was found that the acts of cruelty involved ‘a high degree of carelessness’, though they were not intentional. There was extensive injury to the horse’s leg. Veterinary care was not sought and the horse was in pain and discomfort. It was held that Mr Delaney was ‘grossly negligent, and probably reckless’. In relation to Mr Bashford, it was found that he did not engage in cruelty after the original application of the remedy, the horse then being in the ongoing care of Mr Delaney. The original penalties of five and three years’ disqualification were reduced because of their unblemished record in the horse racing industry over a long period of time.
- [24]The Tribunal Member considered the present case ‘significantly less serious’ than in Delaney and Bashford and that it did not warrant disqualification, given that in the present case ‘the conduct occurred unexpectedly, in the heat of the moment, in a stressful situation’ and because it was out of character for the respondent.
- [25]Having found that disqualification was not warranted, the Tribunal Member then concluded that the licence could not be suspended for a period beyond its expiration and, accordingly, ordered suspension up until the date of expiration of the licence. That gave a total period of suspension of a little over six months. In the circumstances, the penalty was manifestly inadequate.
- [26]As has been noted, it is evident that the fact of termination of the licence governed the determination of the Tribunal at first instance, so that no consideration was given to what might otherwise have been an appropriate penalty. In Delaney and Bashford, the penalty was disqualification. As appears from rule 182 of the Rules, the standard consequences of a disqualification are considerably more far reaching than for a suspension.
- [27]It is well settled that any penalty should reflect the protective purpose of legislation of this nature.[18] The conduct involved a deliberate course of action and in the face of expressions of concern by others who were present. Significant injury was caused to the foal. Mitigating factors have been noted above. The initial penalty imposed was suspension of the licence for a period of a little over three years, reflecting the time between the initial suspension and the decision of the stewards, expiring on 19 February 2020. Suspension for a period of three years is appropriate in the present case.
Conclusion
- [28]The appeal is allowed. The decision of the Tribunal of 8 April 2021 is set aside. In substitution for the penalty imposed by the Tribunal, David Gafa is suspended from holding a thoroughbred trainer’s licence for a period of three years from 25 January 2017 to 24 January 2020.
Footnotes
[1] The Rules are statutory instruments by virtue of s 101 of the Racing Act 2002 (Qld).
[2] As to the appointment and powers of stewards, see Racing (Transitional) Regulation 2016 (Qld), reg 4; the Rules, rule 8(z)(a).
[3] Though in relation to an appeal on the ground that the orders made were manifestly inadequate, see Lee v Crime and Corruption Commission; Crime and Corruption Commission v Lee [2020] QCA 201, [47].
[4] At the time of the Tribunal hearing on 8 April 2021, the then applicable rule was AR 231, which, relevantly, was in the same terms as the earlier rule 175(n).
[5] Transcript 8 April 2021, 1-90 L7-11.
[6] [2012] ACTSC 31.
[7] Ibid, [1], [10], [13]-[14].
[8] The licence itself permitted the respondent to participate in thoroughbred racing and training activities. The appellant also referred to the Licensing Scheme Policy of the Queensland All Codes Racing Industry Board trading as Racing Queensland.
[9] At the time of the Tribunal hearing on 8 April 2021, the then applicable rule was AR 267, which included, in substantially the same terms, the prohibitions in the earlier rule AR 183B.
[10] At the time of the Tribunal hearing on 8 April 2021, the then applicable rule was AR 270, which was substantially in the same terms as the earlier rule AR 183F.
[11] In relation to this Standard, see Racing Integrity Act 2016 (Qld), s 58.
[12] Transcript 8 April 2021, 1-72 L24-26; Transcript 26 May 2022, 1-9 L24-41.
[13] At the time of the Tribunal hearing on 8 April 2021, the then applicable rule was AR 277, which was substantially in the same terms as the earlier rule AR 193.
[14] Harness Racing Victoria v Chisholm [2017] VCAT 1620, [25].
[15] [2017] QCATA 46, [20]-[22].
[16] As to those observations, see particularly the transcript of 8 April 2021, 1-79 to 1-90.
[17] Racing Appeal Panel of NSW, 10 February 2017 (unreported).
[18]Queensland Racing Integrity Commission v Gilroy [2016] QCATA 146, [24]; Cole v Harness Racing Victoria [2018] VCAT 1930, [14].