Druery v Queensland Racing Integrity Commission [2020] QCAT 258

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Druery v Queensland Racing Integrity Commission [2020] QCAT 258 PARTIES: RUSSELL JAMES DRUERY (applicant) v QUEENSLAND RACING INTEGRITY COMMISSION (respondent) APPLICATION NO/S: OCR398-19 MATTER TYPE: Occupational regulation matters DELIVERED ON: 2 July 2020 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Deane ORDERS: Russell James Druery is granted leave to be legally represented in these proceedings. Russell James Druery’s Application to extend time in which to file the Application to review a decision filed 10 December 2019 is refused. The Application to review a decision filed 10 December 2019 is dismissed. Any Application for costs by a party is to be made by filing in the Tribunal two (2) copies and providing to the other party one (1) copy of any submissions and evidence in support of the Application for costs by 4:00pm on 3 August 2020. If any Application for costs is made: (a) the other party must file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in response to the party making the Application for costs by 4:00pm on 24 August 2020; (b) the party making the Application for costs must file in the Tribunal two (2) copies and provide one (1) copy of any submissions and -- 1 of 8 -- 2 evidence in reply to the other party by 4:00pm on 14 September 2020; (c) the Application for costs will be determined on the papers on the basis of any documents filed unless a party requests an oral hearing not before 4:00 pm on 14 September 2020. If no Application for costs is made in accordance with Order 4 then there shall be no order as to costs. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – application to extend time to review a decision PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – where application to review a decision filed approximately four years out of time – whether application for an extension of time should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 20, s 24, s 29, s 33, s 43, s 61 Racing Act 2002 (Qld), s 149V, s 149ZY, s 152, s 152A, s 153 Coppens v Water Wise Design Pty Ltd [2014] QCATA 309 Crime and Misconduct Commission v Chapman [2011] QCAT 229 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 Kunde v Queensland All Codes Racing Industry Board [2016] QCAT 430 Metwally v University of Wollongong (1985) 60 ALR 68 Water Board v Moustakas (1988) 180 CLR 491 REPRESENTATION: Applicant: MJ Jackson instructed by Behlau Murakami Grant, Lawyers Respondent: Clayton Utz 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 Mr Druery seeks review of a decision of the Queensland Racing Disciplinary Board (‘QRDB’) dated 6 November 2015, which he concedes was received by him on or -- 2 of 8 -- 3 about 13 November 2015 (‘the Decision’). The Decision was to reduce the penalty imposed by the Queensland All Codes Racing Industry Board (‘Racing Queensland’) by its decision of 28 April 2015. The Decision noted ‘The Appellant and the Steward may appeal to the Queensland Civil and Administrative Tribunal (QCAT) within 28 days of the date of this decision’ and referred the parties to the Tribunal’s website for more information and provided a contact number. Mr Druery’s Application to review a decision was filed along with an Application to extend or shorten a time limit or for waiver of compliance with procedural requirement (Application to extend time) and an Application for leave to be represented on 10 December 2019. In accordance with directions issued,1 the Application to extend time and Application for leave to be represented are to be determined on the papers. Queensland Racing Integrity Commission (‘QRIC’): (a) does not oppose the Application for leave to be represented; (b) opposes the Application to extend time for the filing of the Application to review a decision. Background Mr Druery was found guilty of two charges by Racing Queensland, namely that: (a) He engaged in conduct which was prejudicial to the interest, welfare, image, control or promotion of greyhound racing in breach of Greyhounds Australasia Rules (GAR), Rule 86(q), including on or about 20 August 2014 at a specified address. (b) He provided, in an interview with Racing Queensland in Deagon, Brisbane on 23 March 2015, evidence that was false and misleading in breach of GAR, Rule 86(d). The penalty imposed by Racing Queensland was that he was warned off all Queensland greyhound racecourses for life in accordance with Rule 3A of the Local Rules and greyhounds owned wholly or in part by him were prohibited from competing. Mr Druery was legally represented at the hearing before Racing Queensland. The action against Mr Druery was one of a number taken in relation to the practice of live baiting in training greyhounds as exposed by the television program, Four Corners. One of the unregistered training tracks depicted in the television program was at the address specified in the charge. Mr Druery was not found to be an active participant in the practice but rather it was found that he witnessed live baiting on or about 20 August 2014 and did not report it to an appropriate authority and then provided false and misleading evidence in an interview when asked about it. He commenced an appeal against both convictions and against the penalty. On the hearing of that appeal before the QRDB on 26 August 2015, he was again legally 1 12 December 2019. -- 3 of 8 -- 4 represented and chose, on advice, to pursue the appeal of the penalty only. The QRDB reduced the warning off penalty to eight years. He now seeks to review the Decision not only as to the appropriate penalty but also seeks to review the convictions on the basis that: (a) as subsequently found by the Tribunal, there was no ‘positive obligation’ to report live baiting at the time2 (First ground). He concedes the argument advanced and ultimately successful in Kunde was not advanced by him at any earlier time. (b) the video footage relied upon by Racing Queensland was inadmissible (Second ground). He concedes the argument was abandoned before the QRDB. Application for leave to be represented These proceedings relate to Mr Druery’s profession in the greyhound industry and the consequences of these proceedings may be significant for Mr Druery. The Tribunal usually grants leave in these circumstances, particularly where there is no opposition. I accept that it is in the interests of justice that leave be granted.3 Application to extend time I am not satisfied that the discretion to extend time should be exercised. At the time of the Decision, the Racing Act 2002 (Qld), the relevant enabling Act (the Act) provided that: (a) subject to the power of the chairperson to refer the notice of appeal to the tribunal4 ‘every review of an appellable decision of a control body must be, in the first instance, by way of an appeal to the disciplinary board’;5 (b) a decision of the QRDB is taken to be the decision of the relevant control body, in this case Racing Queensland, is binding on the parties to the appeal and takes effect when it is made or on a later date specified in the decision;6 (c) an aggrieved person may apply, as provided under the QCAT Act, to the tribunal for a review of the decision;7 (d) the tribunal must start the hearing of such a review within 28 days after the application for review is made under section 152A but may extend the period if it considers the special circumstances of the review require it to do so.8 The QCAT Act provides that proceedings for the review of a reviewable decision, must be commenced by filing the application in the registry within 28 days after the 2 Kunde v Queensland All Codes Racing Industry Board [2016] QCAT 430. Published 15 November 2016. 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 43 (QCAT Act). 4 Racing Act 2002 (Qld), s149V(2)(d) (the Act). 5 The Act, s 152. 6 The Act, s 149ZY. 7 The Act, s 152A. 8 The Act, s 153. -- 4 of 8 -- 5 relevant day.9 Relevant day is defined as the day the applicant is notified of the decision.10 It is uncontroversial that the relevant day was on or about 13 November 2015 so that Mr Druery is seeking a substantial extension of time, in the order of four (4) years. The tribunal may extend a time limit fixed for the start of a proceeding by the QCAT Act or an enabling Act.11 Such an extension can be given even if the time has passed.12 The Tribunal cannot extend a time limit if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding.13 On a review, the Tribunal has power to confirm or amend the decision, set aside the decision and substitute its own or set aside the decision and return it for reconsideration.14 The Tribunal’s function is to reach the correct and preferable decision after a fresh hearing on the merits.15 There is no presumption that the decision under review is correct.16 There are clearly established principles about when the Tribunal will exercise its discretion to extend time.17 I consider each below. Prejudice The first stage is to consider whether the granting of the extension would cause prejudice or detriment not able to be remedied by an order for costs. I am not satisfied that there is necessarily prejudice precluding the consideration of other factors. Mr Druery contends that there is no potential prejudice to QRIC as the bases on which he wishes to challenge the convictions are questions of law and therefore no further evidence is required for their determination. He submits that it is not surprising that the First ground was not advanced because it was not until Kunde was decided that it was clear there was no positive obligation. Mr Druery is seeking to take advantage, long after the fact, of arguments successfully explored by others. He does not satisfactorily address why he could not have taken the point. QRIC raises potential prejudice as distinct to actual prejudice. Firstly, in the intervening time QRDB has ceased to exist. If the extension is granted and the review proceeds enquiries will need to be undertaken to locate the QRDB file and the original evidence, which was sent to QRDB. At the time of making the submissions QRIC did not provide evidence that it had attempted to locate the file and could not. 9 QCAT Act, s 33(3). 10 Ibid, s 33(4). 11 Ibid, s 61(1). 12 Ibid, s 61(2). 13 Ibid, s 61(3). 14 Ibid, s 24. 15 Ibid, s 20. 16 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9]. 17 Crime and Misconduct Commission v Chapman [2011] QCAT 229, [9]. -- 5 of 8 -- 6 Secondly, with the four (4) year effluxion of time the recollections of staff and stewards may have faded. I accept that recollections are likely to have faded in the intervening period. The Second ground seeks to exclude the video footage. The challenge to the footage was abandoned below when Mr Druery chose to only appeal on the issue of penalty. Although there is no evidence before me on this point, it is possible that if Mr Druery had maintained his challenge to the footage other evidence may have been available at that time but not now and therefore QRIC may be prejudiced in attempting to present other evidence now. Satisfactory explanation for the delay There is some explanation for the delay. This is not a factor strongly in favour of the exercise of the discretion. Mr Druery’s evidence of the delay is essentially that: (a) his income had been derived solely from the greyhound industry until Racing Queensland’s decision to warn him off and he became unemployed until October 2016, so he was not able to afford to obtain a comprehensive advice on his prospects of appeal;18 (b) his former lawyers advised that he did not have any prospects of successfully appealing the convictions and he accepted their advice; (c) he experienced severe depression and sought medical assistance;19 (d) when he became aware of the Kunde decision in June 2018 he sought advice but could not afford to advance the matter at that time; (e) he started saving so that he could obtain further legal advice; (f) he was able to instruct new lawyers when his funds permitted but that was not until late January 2019; (g) in April 2019 his new lawyers obtained the file from his former lawyers and he received counsel’s advice in June 2019 on the Second ground. He received counsel’s advice on the First ground on 30 October 2019 and gave instructions to proceed with the tribunal proceedings. There is no evidence as to any steps taken to seek pro bono assistance to progress the matter after Racing Queensland’s decision, nor after the Decision was delivered nor in the seven months or so after he became aware of Kunde. Although leave for legal representation is usually granted in these matters, the starting position is that a party is to represent themselves unless the interests of justice require otherwise.20 The Tribunal is well equipped to allow a party to represent himself. The Tribunal has obligations to take all reasonable steps to ensure that a party understands the practices 18 Mr Druery gives evidence of this but there are no supporting documents to substantiate these matters. 19 Ibid. Nor is there an explanation as to the timing of these issues and how on a practical level they impeded Mr Druery from progressing the challenge to the decision of Racing Queensland or the Decision. 20 QCAT Act, s 43(1). -- 6 of 8 -- 7 and procedures of the tribunal, the nature of assertions made in the proceeding and the legal implications of the assertions and any decision of the tribunal relating to the proceeding.21 He says the First ground was not available to him before Kunde was decided. I do not accept that proposition. The ground could have been advanced by Mr Druery just as it was subsequently by Mr Kunde. There is no sufficient explanation as to why it was not advanced. Length of the delay The delay is almost four years. This is not a factor in favour of the exercise of the discretion. A short delay will be more easily excused than a lengthy delay. A four year delay is lengthy particular in the context of an eight year penalty. As set out above, not only was the Application to review a decision to be filed within 28 days of him being notified of the Decision but the Act also provided that the Tribunal was to progress the hearing of a review within 28 days after the application was filed, subject to relevant extensions in special circumstances.22 The Act clearly intended that such reviews be progressed without delay. Mr Druery’s evidence is that he became aware of the decision in Kunde in June 2018. Even if this explains the delay to that point there remains a period of approximately 17 months before these proceedings were commenced. The timeframe for seeking and then receiving advice and filing the Application of almost a year is also lengthy. There is insufficient explanation as to why the matter could not be progressed more quickly. Strength of the case This is not a factor strongly in favour of the exercise of the discretion. Mr Druery contends the First ground is strong as Kunde found that there was no positive obligation, so it casts serious doubt on the finding that he contravened GAR, Rule 86(q), in similar circumstances. Further, he contends the admissibility of the video footage is important and impacts the ability of QRIC to prove the charges. He acknowledges that the footage was admitted in Paull v Queensland All Codes Racing Industry Board23 but notes the audio component was excluded on appeal.24 He contends that the Second ground is therefore reasonably arguable. Mr Druery’s submissions appear to misapprehend the nature of the proceedings before the Tribunal as an ‘appeal’ as distinct from a review of the Decision. The orders available to the Tribunal are limited.25 In my view there is considerable doubt as to whether the Tribunal is in fact, or could be, seized of a review of the findings of the convictions. The Decision, which is before 21 Ibid, s 29(1). 22 The Act, s 153. 23 [2016] QCAT 74. 24 Paull v Queensland All Codes Racing Industry Board [2017] QCATA 92. 25 QCAT Act, s 24. -- 7 of 8 -- 8 the Tribunal to be reviewed, was a decision solely on appropriate penalty, because Mr Druery, on legal advice, chose not to have the QRDB reconsider the convictions. Interests of justice This is not a factor in favour of the exercise of the discretion. Time limits are imposed for a reason. This is to allow for certainty and finality in litigation. In Coppens v Water Wise Design Pty Ltd26 Thomas J said that: Each party is aware of the required time limits and the fair approach is to require that limits be complied with unless there is a compelling reason …. to the contrary. This is fair for all parties. Compliance with time limits also will lead to disposition of matters in the most efficient and quick way. Compliance with time limits is also consistent with the public interest in finality of litigation ... The Tribunal is required to deal with matters in a way that is amongst other things ‘quick’.27 Allowing a four year extension of time is inconsistent with the objects of the Tribunal. QRIC submits, and I accept, that public policy in finality of litigation militates against allowing Mr Druery to now attempt to reopen the way that he conducted his appeal before the QRDB in 2015 and that it should only be permitted in exceptional circumstances.28 I am not satisfied that special or exceptional circumstances have been shown. Summary On balance, consideration of the factors is not in favour of granting the lengthy extension of time. As time has not been extended for the filing of the Application to review a decision it must be dismissed. Costs QRIC has foreshadowed an application for costs. I make directions to allow for submissions on the issue of costs. 26 [2014] QCATA 309, [14]. 27 QCAT Act, s 3(b). 28 Metwally v University of Wollongong (1985) 60 ALR 68; Water Board v Moustakas (1988) 180 CLR 491. -- 8 of 8 --