Bita v Queensland All Codes Racing Industry Board t/as Racing Queensland [2014] QCAT 490

CITATION: Bita v Queensland All Codes Racing Industry Board t/as Racing Queensland [2014] QCAT 490 PARTIES: Tony Paul Bita (Applicant) v Queensland All Codes Racing Industry Board t/as Racing Queensland (Respondent) APPLICATION NUMBER: OCR094-13 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Oliver Member Bertelsen DELIVERED ON: 1 October 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Application for costs dismissed. CATCHWORDS: COSTS – review of administrative decision – where charge against the applicant one of strict liability – where evidence adduced to challenge the charge – whether evidence ever admissible in the hearing – where liability case not contested before the tribunal – where some costs of preparing for liability case thrown away – whether in the exercise of discretion the applicant should pay those costs. Queensland Civil and Administrative Tribunal Act 2009 ss 100, 102 Fuge v Queensland Building Services Authority [2014] QCAT 383 APPEARANCES and REPRESENTATION (if any): -- 1 of 6 -- 2 The application for costs was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] On 15 April 2013 Mr Bita was found to be in breach of Australian Racing Rule 178 and fined $3,000 for presenting the horse Purrfecklyfearless to race at Ipswich Racecourse on 8 February 2013 when it was found to have a prohibited substance, prednisolone and prednisone. [2] On 26 April 2013, Mr Bita filed an application to review the steward’s decision in the Tribunal. On 27 June 2014 the Tribunal confirmed the decision of the respondent but reduced the penalty imposed from $3,000 to $2,000.1 [3] The respondent has now applied for costs limited to counsel’s fees. [4] As we pointed out in the primary decision Mr Bita initially challenged both the substantive finding that he was in breach of the Rule and the penalty imposed. However, shortly prior to the hearing, Mr Bita accepted that the Rule was one of strict liability and upon a prohibited substance being detected, the Rule is breached which then leaves the stewards, and this Tribunal, with the discretion as to the penalty that might be imposed. [5] It is the position taken with respect to the substantiation of the charge that gives rise to this application for costs because despite challenges made to integrity of the urine sample provided and the testing procedures this challenge was ultimately abandoned. However, it was not abandoned until the respondent had spent considerable time and effort in producing further evidence, other than just the certificate of analysis, to rebut the allegations made by Mr Bita. [6] Prednisolone and prednisone fall within the class of prohibited substances referred to in ARR 178(2) as corticosteroids. Unlike those prohibited substances referred to in ARR 178C volume of the substance is irrelevant to be in breach of ARR 178. [7] Before dealing with the respondent’s specific complaints about Mr Bita’s conduct in review application it is appropriate to consider the legislative framework governing costs orders in the Tribunal. I undertook a similar exercise in Fuge v Queensland Building Services Authority.2 I adopt and recite what was said there. Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that ‘other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.’ That does not mean to say that the Tribunal cannot 1 Bita v Queensland All Codes Racing Industry Board t/a Racing Queensland [2014] QCAT 460. 2 [2014] QCAT 383. -- 2 of 6 -- 3 award costs. It can, because s 102 of the QCAT Act provides that the Tribunal can make an order for costs if it ‘is in the interests of justice’ to do so. There have been various statements in the Tribunal as to how section 100 should be applied given the strong statutory mandate that parties must pay their own costs. In McEwen v Barker Builders Pty Ltd3 the then President, Justice Alan Wilson, said that the costs provisions in the QCAT Act plainly indicated that the legislature had ‘turned its face against the award of costs in this Tribunal’. In Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2)4 the President said: [29] Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra- indication against costs orders in s 100. This statement was reinforced in Ascot v Nursing & Midwifery Board of Australia5: [9] The public policy intent of the provisions in the QCAT Act is plain. The tribunal was established as a no costs jurisdiction. That may be departed from where the interests of justice require it. The considerations identified in s 102(3) are not grounds for awarding costs. They are factors that may be taken into account in determining whether, in a particular case, the interests of justice require the tribunal to make a costs order. That of course applies in circumstances where the enabling act, conferring jurisdiction on the Tribunal, is silent as to the question of costs.6 [8] There is one further observation that might be made with respect to a review of an administrative decision. Review applications, by their very nature, are not adversarial. Part 1 Division 3 of the QCAT Act sets out how review applications are to be conducted in the Tribunal. In exercising the review jurisdiction, the proceeding must be decided in accordance with the QCAT Act and the enabling act under which the review decision is being made.7 [9] The Tribunal may perform the functions conferred on it by the QCAT Act, or an enabling act under which the reviewable decision is being reviewed, and has all the functions of the original decision-maker. The decision- maker must help the Tribunal8 and provide a written statement of reasons for the decision and any documents relevant to the Tribunal’s review of the decision. Generally, if the decision-maker is a Government Department, or instrumentality, the proceedings must be conducted in accordance with 3 [2010] QCAT 49 at [17]. 4 [2010] QCAT 412. 5 [2010] QCAT 364 at [9]. 6 As an example see s 77 of the Queensland Building and Construction Commission Act 1991 (Qld). 7 QCAT Act s 19. 8 QCAT Act s 21. -- 3 of 6 -- 4 guidelines of a model litigant. That means, that the decision-maker must assist the Tribunal in coming to the correct and preferable decision. [10] It is against that background that the matters referred to in s 102(3) of the QCAT Act must be considered. They include: a) Whether a party to a proceeding is acting to the disadvantage of the other; b) The nature and complexity of the dispute; c) The relative strengths of the claims made by the parties; d) Whether an applicant for a decision has been afforded natural justice or there was a genuine attempt to help the decision-maker; e) The financial circumstances of the parties and anything else the Tribunal considers relevant. [11] However, the awarding of costs in any circumstance is an exercise of discretion, which has to be discharged in accordance with the recognised principles.9 [12] The respondent complains that because of the statement material put on by Mr Bita it was required to make further investigations and obtain further evidence to rebut Mr Bita’s contentions. The evidence referred to is firstly a statement by Mr Daryl Northfield, who is a part owner of the subject horse and a licensed strapper; and secondly, a statement by Dr Mark Hodson who provided an expert opinion concerning the detection of prednisone/prednisolone in equine urine. [13] Dealing with Mr Northfield’s evidence, he gave evidence about his involvement with the stewards about the taking of the sample and preventative measures to ensure it did not occur again. He also gave evidence going to the character of Mr Bita and his methods of feeding and training racehorses. [14] Mr Northfield then, in his first statement, sets out research he has carried out about other trainers charged with presenting horses with prohibited substances and attaches voluminous information and research concerning the drug prednisone. In his second statement he again deals with Racing Queensland testing procedures, includes information about how prednisone/prednisolone is naturally occurring in horses and research to support this which all goes, supposedly, to the quantitative levels of the drug to try and establish that it need not be administered artificially to the horse and therefore challenging the presentation charge. There are also observations by him about tolerances. [15] Dr Hodson’s expert report addressed, in a similar fashion, research that supports the contention that these drugs can occur naturally and therefore the presence of the drugs does not necessarily mean that they have been administered to the animal. 9 House v R [1936] 55 CLR 499. -- 4 of 6 -- 5 [16] As I have observed, this evidence was not relied on at the hearing because, in the end, Mr Bita accepted the presentation charge, it seems for good reason. [17] Because once it is established a horse has been presented with a prohibited substance of the type referred to in ARR 178B, there is no defence to the charge unless fault can be found with collection procedures which was not the case here. [18] The evidence of Mr Northfield, although voluminous and expressing all manner of opinions about drug testing, tolerances, and whether the drugs occurred naturally, was clearly not admissible, even in QCAT where the rules of evidence do not apply. He had no obvious expertise to express his views, he was simply a witness of fact and the facts to which he says he was a witness to were not relevant to the charge made against Mr Bita. [19] Although Dr Hodson is quite obviously an expert, his evidence did not carry any weight where the Rules of Racing expressly create an offence against the rules when a prohibited substance is detected. [20] In other words, in a case where the trainer is strictly liable, under the Rules, when a horse is presented for racing with a prohibited substance evidence about how or why the substance may have been present is irrelevant to the question of liability. So much is conceded in paragraph 42 of the respondent’s submission. [21] In circumstances where Mr Northfield’s evidence was largely inadmissible and Mr Hodson’s evidence was irrelevant to the charge, I cannot see why the respondent went to the time and effort to rebut this inadmissible evidence on liability, agreed to multiple adjournments of the hearing and now seeks to rely on it in support of its submissions on costs. It is also questionable whether any of this evidence was relevant to penalty; it certainly was not relied upon. [22] These very issues are addressed in the respondent’s submissions [43] – [48] in addressing the first criteria under s 103(3)(a) whether the applicant unnecessarily disadvantaged the respondent. For the reasons stated, I cannot see how the respondent could be disadvantaged by the applicant’s conduct when it knew that ARR178 is a strict liability rule and the evidence purporting to raise a defence to its breach was clearly inadmissible in the hearing of the review application. [23] Similarly, when having regard to the nature and complexity of the dispute, although the applicant sought to complicate the issues for determination, the respondent, being experienced in these types of proceedings, could have quite easily, sought to limit the use of this evidence in an interlocutory hearing, or objected to it at the hearing if the matter proceeded on the question of liability. The respondent cannot escape some responsibility as to how the case was run. -- 5 of 6 -- 6 [24] Mr Bita is impecunious. This is a factor to be taken into account under the subsection. It seems he was misguided into how his case should be conducted. [25] This is not a case where the interests of justice demonstrate that the discretion should be favourably exercised and so that a costs order is made in favour of the respondent. The application is dismissed. -- 6 of 6 --