Diebert v Queensland Racing Integrity Commission [2021] QCAT 184

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Diebert v Queensland Racing Integrity Commission [2021] QCAT 184 PARTIES: PAUL DIEBERT (applicant) v QUEENSLAND RACING INTEGRITY COMMISSION (respondent) APPLICATION NO/S: OCR284-19 MATTER TYPE: Occupational regulation matters DELIVERED ON: 4 May 2021 HEARING DATE: 13 November 2020 HEARD AT: Brisbane DECISION OF: Member Traves ORDERS: The reviewable decision, being the reconsidered decision of 20 August 2019, is confirmed. CATCHWORDS: PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS – where applicant took early lead - where alleged failure to relinquish lead which resulted in over exertion and horse not finishing competitively – whether applicant drove in a manner that was unacceptable - whether breach of Australian Harness Rules, rule 149(2) – consideration of appropriate penalty. Australian Harness Racing Rules, rule 149(2) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 23 Racing Integrity Act 2016 (Qld), s 246 Currie v Queensland Racing Integrity Commission [2020] QCAT 240 Dixon v Queensland Racing Integrity Commission [2018] QCAT 183 Mifsud v Racing Victoria Stewards [2007] VRAT 6 McMullen v Racing Queensland Limited [2012] QCAT 286 -- 1 of 6 -- 2 REASONS FOR DECISION Mr Paul Diebert has applied for a review of a decision by the Queensland Racing Integrity Commission, dated 20 August 2019, which confirmed the decision of the Stewards that the charge against rule 149(2) of the Australian Harness Racing Rules (the Rules) was substantiated and to impose a penalty of six (6) weeks’ suspension. This matter arose out of a drive by Mr Diebert of Ohoka Punter (NZ) in Race 8 at Albion Park on 20 July 2019 and concerned Mr Diebert’s driving tactics. Essentially, it was alleged that Mr Diebert had driven in a manner that was unacceptable by failing to relinquish the lead which meant the horse had been over exerted resulting in it finishing in tenth position, beaten in excess of 31 metres. Relevant statutory provisions The review process under the Racing Integrity Act 2016 (Qld) begins with an internal review of the original decision. An ‘original decision’ is defined to include, relevantly, a decision to take disciplinary action relating to a licence.1 The internal review decision is reviewable pursuant to s 246 of the Racing Integrity Act 2016 (Qld).2 Section 246, which provides that a person may apply for review of an internal review decision, applies to a person who, under s 245(6), must be given a review notice for an internal review decision. As the decision on internal review was not the decision sought by Mr Diebert, he was entitled, under s 245(6), to receive a review notice and to apply for external review. The purpose of the review is to produce the correct and preferable decision, which must be arrived at by way of a fresh hearing on the merits.3 In doing so, the Tribunal is said to “stand in the shoes” of the original decision-maker and to have all the functions and powers of the original decision-maker for making the reviewable decision.4 It is not necessary to establish any error in either the process or reasoning of the QIRC that led to the decision and there is no presumption that the reviewable decision was correct.5 Mr Diebert was charged and convicted of a breach of Rule 149(2) of the Rules which provides that a person shall not drive in a manner, which is, in the opinion of the Stewards, unacceptable. Rule 149 provides: Race to win or for best position 149. (1) A driver shall take all reasonable and permissible measures during the course of a race to ensure that the horse driven by the rider is given full opportunity to win or obtain the best possible placing in the field. (2) A person shall not drive in a manner which in the opinion of the Stewards is unacceptable. 1 Racing Integrity Act 2016 (Qld), s 240(1)(b). 2 If the internal review decision confirms the original decision, the original decision is taken to be the internal review decision: s 245(4), Racing Integrity Act 2016 (Qld). 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 (‘QCAT Act’); Queensland Racing Ltd v McMahon [2010] QCATA 73. 4 QCAT Act, s 19, s 20. 5 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [8] cited in Thomson v Queensland Racing Integrity Commission [2019] QCAT 86, [7]. -- 2 of 6 -- 3 (3) A person who fails to comply with sub-rule (1) or (2) is guilty of an offence. The accepted approach for determining whether a person’s driving is “unacceptable” for the purposes of rule 149(2) is that of Judge Williams in Mifsud v Racing Victoria Stewards6 where he said: The rule in question is as I have stated, a person shall not drive in a manner which in the opinion of the Stewards is unacceptable. This rule is not intended to penalise what might be described as mere errors of judgment or split second mistakes. The Tribunal is well aware of the authority constituted by the previous decision in 1983 by Judge Goran in a case of Honan where it was thought desirable to bring into focus the sort of considerations that lie behind rules such as Rule 149(1) and (2) and Judge Goran made a number of observations. It is certainly relevant to restate here that the first, second and fourth of the observations that he made apply here. I will read those: (a) the rule does not permit the mere substitution of the Stewards’ view as to how a particular horse should have been ridden for the view of the rider; Of course in the harness racing world we would substitute “driven for the view of the driver”. (b) the rule does not seek to punish a mere error of judgment during the race on the part of the driver; and (d) the driver’s conduct must be culpable in the sense that objectively judged it is found to be blameworthy. I will not include (c) here because it is more relevant to a breach of Rule 149(1) and we are dealing with 149(2)… Perhaps to throw my own interpretation into the mix I might view it this way, that the sort of culpable action that is required to amount to a breach of this rule might be such that in normal circumstances a reasonable and knowledgeable harness racing spectator might be expected to exclaim with words to the effect, “What on earth is he doing?” or “My goodness look at that” or some such exclamation. The requisite standard of proof to be applied by the Tribunal is on the balance of probabilities, applying the sliding scale espoused by the High Court in Briginshaw v Briginshaw7 whereby the seriousness of the allegation or the gravity of the consequences that flow from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the Tribunal. The observations of Gordon J in Re Day8 are apposite: [T]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the 6 [2007] VRAT 6 applied in McMullen v Racing Queensland Limited [2012] QCAT 286, [16]-[17], [19] and Dixon v Queensland Racing Integrity Commission [2018] QCAT 183, [13]-[16]. 7 (1938) 60 CLR 336. 8 [2017] HCA 2; (2017) 91 ALJR 262. -- 3 of 6 -- 4 question whether an issue has been proved to the reasonable satisfaction of the tribunal. Where, as here, fraud is alleged, ‘reasonable satisfaction’ is not produced by inexact proofs, indefinite testimony, or indirect inferences. This does not mean that the standard of persuasion is any higher than the balance of probabilities. It does mean that the nature of the issue necessarily affects the process by which the reasonable satisfaction is reached.9 The Tribunal must therefore be satisfied on the balance of probabilities in accordance with the principles in Briginshaw, that Mr Diebert drove in a manner which was “unacceptable”. If the Tribunal is so satisfied, then it must determine the appropriate penalty. The Race The following is taken from the joint statement of agreed facts and issues filed by the parties pursuant to a Tribunal direction: (a) It was alleged by Stewards that after beginning from barrier 7 Ohoka Punter (NZ) was exerted by the applicant to clear the inside runners and obtain the lead. (b) It was alleged that Our Uncle Sam which was beaten for the lead then moved off the back of Ohoka Punter (NZ) to challenge for the lead, however Ohoka Punter (NZ) was allowed to run and held the lead. (c) The lead time of 75.5 seconds for the first 1,071m from the 2,680m start the mile equated to a sectional time of 28.3. (d) The Stewards alleged that as a result of the exertion placed on Ohoka Punter (NZ) to lead, the gelding tired in the concluding stages to finish in 10th position beaten in excess of 31m. (e) It is then alleged by Stewards that these driving tactics were in direct contrast to the manner in which Ohoka Punter (NZ) was driven at his previous start when surrendering the lead in the early stages and utilising the sprint lane to win the race. Submissions of the parties Mr Diebert submitted that it was reasonable for him to assume the lead and not to relinquish it. He contended that he made “split-second” decisions during the race which resulted in Ohoka Punter (NZ) leading the race and then maintaining that lead by choosing not to “take a sit on Uncle Sam”. Mr Diebert submitted that his reason for doing this was because, in his opinion, had he given up the lead to Uncle Sam, Uncle Sam would have taken a sit on Tiger Tiara which would in turn have put him “three the fence”. Mr Diebert says that Uncle Sam had done this previously with Tiger Tiara in the Vic Cup five months earlier. Mr Diebert submitted that the Stewards had made an assumption that Uncle Sam’s driver had challenged for the lead when there was no evidence from the driver that that was the case. Further, that the Stewards had relied on the fact he had “taken a sit” the week before rather than considering all previous starts which would have shown that three starts back the horse had led in other races, and where possible, had been at or near the leading position. 9 Ibid, [15]. -- 4 of 6 -- 5 The respondent submitted that it was unreasonable for Mr Diebert to have made his horse run a 27.3 second first quarter where he refused to relinquish the lead and take cover as per his previous racing wins. Although the horse had won from the lead in the 2016 Black’s a Fake race, he was in his prime then as a six year old as opposed to in 2019 when he was an older horse coming to the end of its career. The manner of his driving was also inconsistent with his tactics in the Sunshine Sprint the week before when he drove the horse with cover for most of the race and sat behind another horse and was able to finish competitively. This had allowed Ohoka Punter to conserve energy for the final stages of the race which he had not been able to do at Albion. The respondent submitted that the evidence of how the horse had been driven previously by Mr Diebert is significant because it demonstrated that Mr Diebert was familiar with the horse and knew how to drive it to win. Consideration I viewed footage of the race a number of times during the hearing. In my view, the footage indicates that Mr Diebert elected to take the lead early and to maintain that lead, irrespective it seems of how tired Ohoka Punter was or whether he could maintain that position to win the race. It appears that the horse was driven so fast for so long that it did tire and completely fell away at the closing stages of the race. Mr Diebert did not have a satisfactory explanation for his tactics. He said that he had not taken a seat behind Uncle Sam because he had not wanted to be put three to the fence but this makes no sense if the alternative was to run his horse to a state of exhaustion. The tactic or strategy employed by Mr Diebert was also entirely inconsistent with the approach he had adopted the week before where the horse had used his early speed to find a forward position but was challenged by Colt Thirty One and relented by taking the position behind that horse which allowed Ohoka Punter to conserve energy for the final stages of the race and finish competitively. I accept Mr Diebert’s evidence during the hearing that he was instructed by the trainer to lead, that “if [he] found the front [he] was to lead the race”. This does not, however, absolve Mr Diebert from his responsibility to drive the horse in an acceptable way. If in driving the horse that way the horse became over exerted to the point where it was non-competitive, then to do so constitutes, in my view, driving in a manner that is blameworthy and, objectively viewed, unacceptable. Accordingly, I find that the contravention of Rule 149(2) is substantiated. In terms of penalty, I am of the view that a six week suspension is appropriate in the circumstances. In Currie v Queensland Racing Integrity Commission10 the Tribunal said that, as a matter of fairness and natural justice, the Tribunal should strive to achieve the greatest degree of consistency as is possible. Further, that although previous penalty decisions are not binding on the Tribunal, they may be followed by the Tribunal deciding factually similar cases, unless plainly wrong.11 Having regard to comparable cases 10 [2020] QCAT 240, [38] citing Abbott v Racing Queensland [2012] QCAT 230. 11 Queensland Racing Integrity Commission v Vale [2017] QCATA 110, [74] citing Lacey v Attorney- General (Qld) (2011) 242 CLR 573, 596. -- 5 of 6 -- 6 helps to ensure that similar principles are applied consistently so, as a matter of systemic fairness, like cases are treated alike and different cases distinguished. The respondent has referred to three decisions by the Stewards where a six week suspension was imposed for a breach of rule 149(2) in circumstances where horses were over exerted beyond their capabilities in two cases to finish last, and in the third where the gelding failed to be competitive in the concluding stages. I find the circumstances in those cases to be broadly similar to the facts in this case. I have also taken into account Mr Diebert’s racing disciplinary history which shows Mr Diebert to have breached rule 149(1) or rule 149(2) on seven prior occasions from 7 September 2012 to 13 July 2018. In respect of each bar one of those contraventions, Mr Diebert received a suspension of between four and six weeks. In my view, the appropriate penalty is a six week suspension. The penalty is consistent with comparable cases regarding similar breaches and takes into account that the conduct occurred during a feature race, namely the Blacks A Fake race, a group one feature race and Queensland’s only grand circuit event. It also reflects Mr Diebert’s disciplinary history which includes multiple contraventions of the rule under consideration. Accordingly, I confirm the decision that AHRR rule 149(2) was breached and impose a six week suspension. -- 6 of 6 --