Auld v Queensland Racing Ltd [2013] QCAT 446

CITATION: Auld v Queensland Racing Ltd [2013] QCAT 446 PARTIES: Mr Ray McInnes Auld (Applicant) V Queensland Racing Ltd (Respondent) APPLICATION NUMBER: OCR197-13 MATTER TYPE: Occupational regulation matters HEARING DATE: 9 August 2013 HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member Patricia Hanly, Member DELIVERED ON: 21 August 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The Steward’s decision of 10 July 2013 is set aside and instead the applicant be disqualified for a period of 6 weeks. CATCHWORDS: REVIEW - Misconduct and provocation – where licensees involved in a physical altercation – where applicant struck in the face with a lead rope and responded by striking the third party assailant – where applicant provoked into striking – where both the applicant and the assailant engaged in abusive verbal exchanges before the assault – where third party primary cause of the verbal exchange – whether a 3 month disqualification excessive – where not sufficient weight given to the level of provocation. APPEARANCES and REPRESENTATION (if any): APPLICANT: The applicant was self represented RESPONDENT: Mr Torpey represented Racing Queensland Limited. -- 1 of 6 -- 2 REASONS FOR DECISION [1] Mr Auld holds a licence issued by Racing Queensland as a stable hand. He works and has worked for many years for trainers at the Clifford Park racecourse in Toowoomba. He attends the racecourse early morning to assist with track work. Ms Saal is also a licensed stable hand who attends the Toowoomba racecourse. [2] Prior to 3 July 2013 there had been ongoing friction between Mr Auld and Ms Saal, with both exchanging insults to the other. On the morning of 3 July 2012 the friction escalated to a point where Ms Saal struck Mr Auld in the face with the end of a lead rope and he retaliated by striking her at least once, if not twice, to her face. [3] On 10 July 2013 Stewards held an inquiry into the incident. Mr Auld pleaded guilty to a charge under Australian Racing Rule 175(q). That charge provides that the Stewards may penalise any person who in their opinion is guilty of any misconduct, improper conduct or unseemly behaviour. After hearing from both Mr Auld and various witnesses to the incident the Stewards disqualified Mr Auld from holding a stable hand‟s licence for three months. [4] On 23 July 2013 Mr Auld filed an application to review the Stewards‟ decision. He says that the penalty was too severe having regard to; his unblemished history within the racing industry; his plea of guilty to the charge; his remorse expressed immediately after the incident; loss of income; his good character as supported by a number of referees and the fact he was provoked into striking Ms Saal. He says that had these matters been properly taken into account by the Stewards they should not have disqualified him. He does not suggest what penalty should be imposed but we note that Ms Saal was fined $3,000.00 for her breach of ARR 175(q) arising out of the same incident. [5] The Tribunal‟s function in a review application is to produce the correct and preferable decision by way of a fresh hearing on the merits.1 It is not the Tribunal‟s function to examine the process by which the decision was arrived at, nor the reasons given for making it. Accordingly, the Tribunal is not required to identify an error in either the process or the reasoning that led to the decision being made. There is no presumption the original decision is correct.2 [6] As we said the evidence reveals that there had been friction between these two protagonists for some time. In May 2013 there was an incident, according to Mr Auld3, where Ms Saal accosted Mr Auld at the canteen at the racecourse by pushing him in the shoulders, using foul language and “yelling” at him that he was a “fucking old known paedophile” and 1 QCAT Act s 20 2 Kehl v Board of Engineers (2010) QCATA 58 at [9]. 3 Ray McInnes Auld Statutory Declaration. -- 2 of 6 -- 3 repeating it several times. The animosity continued up until the incident on 3 July 2013. [7] Both Mr Auld and Ms Saal have both given different versions of what occurred. Ms Saal says that at approximately 4:45am she was walking a horse down to a swimming pool and had to pass between another horse being ridden by jockey Gareth Clegg, and a fence. There was not a lot of room to pass safely and she was leading a large horse. She says that Mr Auld was coming in the opposite direction and tried to walk between herself and the fence in circumstances where there was no room to do so. She says she tried to move the horse out of the way and as she did so Mr Auld called her a harlot. Gareth Clegg commented to Ms Saal that that was not very nice and she replied that‟s what he usually calls me. [8] When she walked the horse back to the tie up stall area, Mr Auld was waiting for her near the stalls and he stepped out in front of her to block her path. She abruptly said for him to get out of the way and, according to her version, without any further discussion Mr Auld punched her twice in the face. The horse she was leading pulled back and as it did so, she held onto the lead rope and was forced back with the horse. As this was happening Mr Auld was pushing her back to a point where she ended up in the horse stalls and she tried to push Mr Auld off her. [9] She was questioned about her version of the events by the Stewards and denied that she in any way retaliated when she was struck by Mr Auld. She said she kept her “hand out because he kept punching me in the face.” She then said that she may have pushed at Mr Auld but “never swung at Ray or anything.” On Ms Saal‟s version, Mr Auld engaged in an unprovoked assault without any warning whatsoever. She does not accept the welt on Mr Auld‟s face clearly demonstrated in the photo he has produced, and supported in the medical report, had anything to do with her. [10] Mr Auld‟s version is that while watching a horse do track work, he overheard Ms Saal behind him saying to another person that he was a child molester, had been to Court in Brisbane, told lies and was a “fuckin‟ old paedophile”. He says after hearing this, and watching the horse gallop, he decided to move away from Ms Saal and walked down around the pool area where he would be a good distance from her. As he walked that way, he says she came straight towards him with the horse and although there was plenty of room for her to pass, she walked directly towards him saying “you fuckin old cunt”. She then hit him with her shoulder as she pushed passed and knocked him up against the fence. He retaliated by swearing at her as well and walked away. He stopped to talk to Rex Lipp and noticed that Ms Saal was coming up behind him. [11] He continued to walk back to the tie up stall area and he says that she then jammed him up on the fence. He gave the following statement to the Stewards: -- 3 of 6 -- 4 “she said to me – in words of, „I‟ll burn you you fuckin mongrel. I‟ll get you done away with. I‟ll have you barred off this course‟. With that she grabbed me by the shoulder on this side and she swung me around, and as she swung me around she hit me with the horse lead across the face, which they have taken photos of, which I have a doctors certificate of. With that, I backhanded her once, and I‟ve got, and I‟m very sorry. I‟ve never hit women, and I‟m sorry that I did it, because it put me in this circumstance. And I hit her in the mouth with a back-an open hand. She went 3 paces backwards. She walked forward, grabbed me by the shoulder and swung me. Never did push – he grabbed. She swung me in the horse stall – the tie up stall – and started to abuse me, and put the lead back as if she was – and there was a chap called Paul. I don‟t know his other name. He worked for all Norco. He walked in and got in between and he said to Stacey – he said “Walk away. Go away. There is no arguments and no fighting here.” He said “Ray go back to your horse stall.” [12] The person referred to above as Paul, is Paul Rowen. He told the Stewards that he could hear a commotion whilst he was doing some work with a horse in the tie ups. He heard an exchange of words as Ms Saal and Mr Auld walked past him. The next thing he saw was Ms Saal spinning around and both of them were “jostling and screaming abuse at each other”. He observed that they got closer together and then Mr Auld “reached out and grabbed her by the scruff of the thing and hit her twice”. He did not know whether Mr Auld‟s hand was an open hand or closed fist. Mr Auld was obviously pushed because he fell back into the stall where Mr Rowen was and he then says that he thought she hit with the lead and that‟s when he stepped in and broke it up. This evidence supports Ms Saal‟s version that she was struck twice with or without a closed fist and that Mr Auld was struck with the lead. [13] He was questioned by the Stewards, Ms Saal and Mr Auld about his evidence but did not stray from the essential facts as described above. When it was put to him that Mr Auld was hit with the lead first, and that Mr Auld only slapped Ms Saal once, unfortunately Mr Rowen did not respond either way because the question which included these two points became muddled and his response is confusing.4 Mr Auld did reiterate to the Stewards that he was only struck once with the lead and that was before he slapped or punched Ms Saal and the swinging of the lead referred to by Mr Rowen was an attempt to strike him again but it missed.5 [14] Another witness, Mr Morris, was called and he confirmed that both Mr Auld and Ms Saal exchanged insults of the type described above, that is “harlot” and “Paedophile”. He told the Stewards that when he heard this Mr Auld was walking up towards Ms Saal and she walked the horse directly to him as though to have the horse walk over the top of him.6 It was then that the insults started to fly. He heard Ms Saal say “Run. You better run you paedophile.” He heard a commotion saw a little of the 4 Transcript page 25 line 1-20. 5 Transcript page 26 line 45 and page 27 lines 1-10. 6 Transcript page 29 line 5. -- 4 of 6 -- 5 incident but not the striking of Ms Saal. He saw Mr Auld trying to hold her “to stop – to stop her from hitting him”.7 [15] Mr Clegg was also called and he confirmed the initial exchange of insults between Ms Saal and Mr Auld. [16] Another witness, Mr Sutton, also confirmed Ms Saal repeatedly called Mr Auld a paedophile. [17] Ms Saal‟s daughter, Sarah Saal, said that she witnessed part of the incident. She heard yelling and came around “the corner and Ray was hitting Mum and Mum – the horse was running backwards”. She said she tried to push Mr Auld away to break up the incident. She also confirmed that when both Ms Saal and Mr Auld are together he would insult her in a most derogatory way of the type already referred to above. [18] What emerges from all of this evidence is that, as we said at the beginning, there was intense animosity between these two stable hands. They both engaged in exchanging derogatory insults to the point where tempers flared and they were involved in an altercation. The independent evidence simply does not support Ms Saal‟s version of the events. The only “eye witness” is Mr Rowen and his version is more consistent with that given by Mr Auld and we prefer his evidence, and insofar as there are any discrepancies, Mr Auld‟s evidence as to what occurred. We accept that he was initially struck with the horse lead and then retaliated with at least 1 or 2 blows to Ms Saal‟s face. [19] We do not accept that the assault on Ms Saal was unprovoked and without warning as she contends. Mr Auld‟s response, we consider, was an instantaneous reaction as a result of being provoked by being struck in the face with the end of a lead rope. Although there was some serious verbal jousting, this of itself would not have been sufficient for Mr Auld to act the way he did. Having said that, Mr Auld is a mature man of some 70 years of age, has been involved in racing and with horses all of his adult life. The rough and tumble of the industry should have hardened him to resist the temptation to respond to the allegations and behaviour of this kind if that response involved physical injury. [20] We accept that he was provoked into acting the way he did and although Ms Saal‟s evidence is not credible, we have to accept that Mr Auld‟s conduct in assaulting her is still a very serious matter, even in those circumstances. Although Ms Saal was only given a fine which may not have fully reflected the seriousness of her conduct, we are not satisfied that a fine would be appropriate in Mr Auld‟s case. [21] We accept in mitigation that he does have an unblemished record. We accept that he is highly regarded in the industry and the references he has provided support that. It is disappointing that some action wasn‟t taken when he first complained about Ms Saal‟s conduct in May 2013, however, 7 Transcript page 30 line 1. -- 5 of 6 -- 6 that still does not excuse his reaction in assaulting her the way he did. We accept he is remorseful and we understand that he will suffer some loss of income because of his disqualification. [22] In Crane v Racing Queensland8 the Tribunal substituted a disqualification of three months for a $2,000.00 fine as a result of Mr Crane, a licensed trainer, being involved in an altercation with a track rider. There, after a few choice words were exchanged between Mr Crane and Mr Hepworth, Mr Crane grabbed Mr Hepworth by the collar of the shirt and spun him around and propelled him out of the horse stall. There was no physical harm to Mr Hepworth. Although the incident there was much milder than the physical assault on Ms Saal we cannot ignore the fact that she provoked Mr Auld in acting in a way that was out of character. In fact, provocation can be a complete defence to a charge of common assault in the criminal law.9 [23] We recognise the Stewards have a responsibility to ensure racecourses are a safe place to work. Where licensees engage in conduct that is misconduct, improper conduct or unseemly behaviour, the Stewards must act and where appropriate impose sanctions that reflect the seriousness of the conduct both as a deterrence and a punishment. It was entirely appropriate for the Stewards to convene an inquiry but we are a little concerned with the disparity in punishment when one has regard to the conduct of Ms Saal in striking Mr Auld in the face with a lead rope which left a noticeable welt and bruise. The lead rope was used as a weapon. [24] The overall conduct of both Mr Auld and Ms Saal, not just the physical altercation, is quite disgraceful and brings the racing industry into disrepute and must be regarded very seriously. The race track, for morning track work, is a workplace and those who are engaged in that work must respect the rights and personal space of others also working in that environment. Because we are of the view Ms Saal‟s conduct was, in the main, the cause of the conflict between the parties we still cannot ignore the serious consequences of Mr Auld‟s assault, even though it was provoked. Having said that we think that the sanction imposed did not properly reflect the full extent of the provocation. We are of the view that in these circumstances a disqualification for six weeks would properly reflect the gravity of Mr Auld‟s conduct. [25] We therefore propose to set aside the Stewards‟ decision and impose a disqualification of six weeks from 10 July 2013. 8 [2013] QCAT 006. 9 Criminal Code of Queensland ss 268 and 269. -- 6 of 6 --