Bita v Queensland All Codes Racing Industry Board t/as Racing Queensland [2014] QCAT 460

CITATION: Bita v Queensland All Codes Racing Industry Board t/as Racing Queensland [2014] QCAT 460 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: 24 June 2014 HEARD AT: Brisbane DECISION OF: Senior Member Oliver Member Bertelsen DELIVERED ON: 27 June 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the respondent is set aside and instead there be an order that the applicant pay to the respondent the sum of $2,000.00 by 30 September 2014. 2. The respondent must file any submissions on costs by 18 July2014. 3. The applicant must file any submissions on costs in reply by 8 August 2014. 4. Unless otherwise objected to by either party the application for costs will be determined on the papers. 5. The respondent has leave to amend the name of the respondent to Queensland All Codes Racing Industry Board t/as Racing Queensland CATCHWORDS: RACING – PRESENTATION – Where the applicant/trainer presented a horse to race with a prohibited substance – where strict liability – whether applicant blameworthy – whether fine imposed excessive in the circumstances. -- 1 of 5 -- 2 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr O’Sullivan solicitor of O’Sullivan Saddington Lawyers RESPONDENT: Ms Freeman of counsel instructed by Racing Queensland REASONS FOR DECISION [1] Mr Bita was the trainer of the thoroughbred horse Purrfecklyfearless that competed in race 7 at the Ipswich Racecourse on 8 February 2013. It placed first in that race. [2] Subsequent to the race, a urine sample was taken from the horse and after analysis, it was found that the sample contained a prohibited substance, prednisolone and prednisone. As a consequence, stewards held an inquiry at the offices of Racing Queensland at Deagon on 15 April 2013. Mr Bita was found to be in breach of Australian Racing Rule 178 and fined $3,000. The Rule provides that: Subject to Australian Racing Rule 178G, when any horse that has been brought to a race course for the purpose of engaging in a race and a prohibited substance is detected in any sample taken from it prior to or following its running in any race, the trainer and any other person who was in charge of such horse at any relevant time may be penalised. [3] On 26 April 2013, Mr Bita filed an application to review the steward’s decision in the Tribunal. The function of the Tribunal in a review application is to produce the correct and preferable decision by way of a rehearing on the merits.1 [4] Initially, Mr Bita 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 accepted that he was in breach of the Rule. The only issue on this review application is the question of penalty. [5] In considering whether or what penalty should be imposed, it is useful to have regard to what Judge McGill had to say in Wallace v Racing Queensland.2 [6] Relevantly at [69]. He said: In my opinion, however, there is a difference between a case where there is evidence to show a specific mitigating circumstance, and simply an absence of evidence of an explanation, either mitigating or aggravating depending on the extent to which it shows an absence or presence of blameworthiness on the part of the trainer. Cases where the trainer was 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 20. 2 [2007] QDC 168. -- 2 of 5 -- 3 able to show a specific explanation which did not involve any blameworthiness on his part are really examples of the situation where the trainer has for the purpose of penalty been able to show a mitigating circumstance. It may well be appropriate for such cases to be treated more leniently than what might be described as the ordinary case, where there is no explanation for the elevated reading, and therefore no indication as to whether or not there is any personal blameworthiness on the part of the trainer. Obviously the third category of case would be one where there was some explanation which did show moral blameworthiness on the part of the trainer, which I would expect would justify a more severe penalty. [7] In this case, it was accepted by the stewards at the enquiry, and in the submissions before this Tribunal that the conduct of Mr Bita did not fall into the third category which involved deliberate administration of a prohibited substance. However, there was no explanation put forward by Mr Bita to establish that he was not blameworthy which would warrant a more lenient penalty. The situation here is that Mr Bita simply has no explanation as to why Purrfecklyfearless presented with a prohibited substance. Therefore, the circumstances of this case are such that Mr Bita falls within the second category referred to by his Honour. [8] It is submitted by Mr Bita that when all the circumstances are considered, a reprimand would be an appropriate penalty. We disagree with that submission for the following reasons. [9] The purpose of rule 178 is to provide strong incentives for trainers and others who are responsible for the wellbeing of a horse to take great care to ensure that the horse when presented for racing will be unaffected by prohibited substances.3 Another purpose of the rule is to ensure that trainers and persons responsible for horses do take great care that prohibited substances are not administered by anyone else. This is a consideration of general deterrent and the point and purpose of a stringent rule like AR178.4 The public policy considerations are evidently seen by those responsible for framing and adopting rules such as this rule as justifying such a draconian provision. If a provision is justified and is to be meaningful, it must be enforced.5 [10] The comparable cases referred by the respondent demonstrate that to ensure the integrity of the racing industry, and to provide an adequate deterrent to trainers and persons responsible for horses, that a fine should be imposed. The amount of the fine will be depend on all the circumstances of the particular case and also having regard to what was said in Wallace. [11] In deciding the appropriate penalty, we must take into account the various mitigating factors submitted by Mr Bita’s legal representative and also have regard the comparable cases referred to by the respondent in its written submissions to ensure consistency. 3 Wallace v Queensland Racing supra [63]. 4 Wallace v Queensland Racing supra [64]. 5 Wallace v Queensland Racing supra [65]. -- 3 of 5 -- 4 [12] Mr Bita has been involved in the racing industry for some 40 plus years. He has trained thoroughbred horses for the best part of that time. He is now 69 years of age. We are told, and we accept, that he has a limited income being on an aged pension, has virtually no assets other than his motor vehicle and tries to supplement his income by training a few horses. At the time of the inquiry, he was training four horses. He has had no previous breaches of the rules of racing which are relevant to this proceeding. He has never been breached for presenting a horse with a prohibited substance. He did not deliberately administer any prohibited substance to the horse nor did he deliberately present the horse to race with a prohibited substance in it. This however does not exonerate him for the reasons stated above. [13] Counterbalanced against his very good record within the racing industry must be the deterrent factor to ensure the integrity of racing is maintained. That is the purpose of such a strict rule. [14] Racing Queensland have referred us to a number of comparable decisions and they include the following which we think are the most relevant. Ryan J6 which involved a positive finding of dexamethasone which was administered in accordance with veterinary advice. Although the guidelines for withholding period of eight days were followed, the horse, after a race on 22 October 2005, tested positive to the drug. Initially a fine was imposed of $4,000 but this was reduced on appeal to $2,000. The trainer in that case, had a record of over 20 years with no prior convictions. [15] In Hansen v Racing Queensland7 the horse ‘Essington’ tested positive to prednisone. Mr Hansen had two previous convictions involving prednisone. He was initially fined $10,000 but this was reduced to $6,000 on review by the Tribunal. Racing Queensland has referred us to other cases but we think these two are the most relevant.8 [16] When comparing these comparable decisions to the circumstances associated with Mr Bita’s case, at first blush it would seem that a fine of $3,000 would be appropriate. However, we cannot ignore his personal situation that is, his age, financial resources, findings by the stewards and by us that he did not deliberately engage in the administration of any substance. This together with his longstanding good record in the industry, leads us to the conclusion that a further discount is warranted. On the basis of Hansen having a penalty imposed of $6,000 for effectively three breaches of the rule, we consider in this case that the appropriate penalty is to impose a fine of $2,000. 6 [2006] QRAT 6. 7 [2011] QCAT 609. 8 Mair, MJ v Queensland Racing [2003] QRAT2; Thexton, M v Queensland Racing [2004] QRAT 22; and Doughty v Racing Queensland Limited [2012] QCAT 678. -- 4 of 5 -- 5 [17] Therefore, the order of the Tribunal will be that the decision of Racing Queensland is set aside and instead, there be a fine of $2,000 to be paid by 30 September 2014. [18] The Tribunal will also make directions for the filing of any submissions on costs of the review application. -- 5 of 5 --