Crane v Racing Queensland Limited [2013] QCAT 6

CITATION: Crane v Racing Queensland Limited [2013] QCAT 006 PARTIES: Anthony Crane (Applicant) v Racing Queensland Limited (Respondent) APPLICATION NUMBER: OCR374-12 MATTER TYPE: Occupational regulation matters HEARING DATE: 11 December 2012 HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member DELIVERED ON: 4 January 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of Racing Queensland made on 20 November 2012 is set aside. 2. The applicant will pay a monetary penalty of $2,000.00 to Racing Queensland by 28 February 2013. CATCHWORDS: Racing – Penalty – improper conduct – physical altercation between the applicant and a track rider – where the respondent imposed a penalty of three months disqualification – whether penalty excessive in the circumstances – where serious consequences of disqualification – where monetary penalty more appropriate Queensland Civil and Administrative Tribunal Act 2009, s 20 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 Eggleston v Racing Queensland Ltd [2011] QCAT 394 APPEARANCES and REPRESENTATION (if any): APPLICANT: Anthony Crane was represented by Mr Morzone -- 1 of 6 -- 2 of counsel RESPONDENT: Racing Queensland Limited was represented by Mr Torpey REASONS FOR DECISION [1] Mr Crane holds a thoroughbred trainer’s license with Racing Queensland. He has stables at Beaudesert and uses the Beaudesert racecourse for track work. On the morning of 10 November 2012 Mr Crane was involved in an incident with a licensed track work rider, James Hepworth. As a result of that incident, which involved a physical assault, Mr Crane was charged by stewards with a breach of Australian Racing Rule 175(q) in that Mr Crane engaged in misconduct, improper conduct or unseemly behaviour. [2] At an inquiry held on 20 November 2012 the stewards were satisfied to their reasonable satisfaction that the charge was made out and imposed a penalty of 3 months’ disqualification. Mr Crane accepts that he did breach the Rule by his conduct, but contends that the 3 months’ disqualification was manifestly excessive having regard to the minor nature of the incident. [3] Mr Crane has filed an application to review the stewards’ decision on penalty. [4] Section 22 of the QCAT Act provides that on hearing the review application, the Tribunal must produce the correct and preferable decision by way of a fresh hearing on the merits. Also there is no presumption that the original decision is correct nor is it the function of the Tribunal to identify any error in either the process or the reasoning that lead to the original decision being made.1 [5] However, the penalty imposed must reflect, amongst other things, the seriousness of the conduct engaged in by Mr Crane. [6] There were a number of witnesses to the particular incident involving Mr Crane and Mr Hepworth. Each witness has given slightly different versions of what occurred. It is best to start with the evidence of Mr Crane, which is recorded in the transcript of the inquiry before the stewards. [7] There seems to be no dispute that there has been ongoing animosity between Mr Crane and Mr Hepworth for some time prior to this particular incident. The reason for that is not particularly relevant other than to say that it existed. The incident occurred a little after 6am on a Saturday morning and Mr Hepworth had just finished track work. He was riding past Mr Crane when there was an exchange of words. Mr Crane then 1 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58. -- 2 of 6 -- 3 followed Mr Hepworth to the tie up stall of the trainer, Darlene Duryea. When Mr Hepworth got to the stall, he dismounted and at that point “a few choice words” were exchanged between Mr Crane and Mr Hepworth. Mr Crane then took hold of Mr Hepworth’s vest spun him around and propelled him out of the tie up stall. [8] At that point Dudley Hearn, the racecourse manager, and Gilbert Bow intervened and Mr Bow stood between Mr Crane and Mr Hepworth and separated the two men. Mr Hearn then told Mr Crane to walk away from the altercation. Mr Crane followed this instruction and that was the end of the matter. [9] Mr Hepworth’s version is different to that of Mr Crane’s. He told the stewards that although Mr Crane’s story was correct, he also said that on the way back to the stall Mr Crane grabbed him twice and threw him into the brick wall behind the horse after he dismounted. He then stood up and grabbed him again and threw him into the hedge where the tie up rail is located. He also said that as he dismounted Mr Crane threw Darlene Duryea into the rail and then threw Mr Hepworth behind the horse and he was then lying on the ground. [10] Darlene Duryea witnessed the incident and said that Mr Crane was trying to go into the tie up stall as Mr Hepworth was dismounting and she tried to stop him. She says that Mr Crane pushed her aside and then flung Mr Hepworth out into the fence opposite the stall and that is when Mr Hearn intervened. She also said that Mr Crane “took a swing at him and then he missed him and grabbed him by the throat and just pegged him out the front.” [11] Carol Duryea, a stable hand, also says she saw the incident. She said that Mr Crane threw Mr Hepworth from the back of the tie up stalls to the front and out to the tie up rail where he fell to the ground. After this Mr Gilbert intervened. [12] Renee McGill, a licensed track work rider working for Mr Crane, tells a different story. She was following Mr Crane to the tie up stall and was approximately 6-10 feet away from the incident. She says she did not see any incident involving Darlene Duryea, did not see Mr Crane smash Mr Hepworth into a brick wall or nor did she see him take a “swing at anybody.”2 Her evidence is consistent with that of Mr Crane. [13] It is apparent from the evidence given by the various witnesses that those associated with Mr Hepworth gave evidence more or less consistent with his version and Ms McGill, who works for Mr Crane, has given evidence more or less consistent with his version of events. [14] The only two truly independent witnesses, it seems to me, are a Gilbert Bow, the track work supervisor at the Beaudesert Race Club and Dudley 2 Transcript page 18. -- 3 of 6 -- 4 Hearn who is the racecourse manager. They were about 10-15 metres away from Ms Duryea’s tie up stall when they heard raised voices. Mr Hearn said he immediately turned around and saw Mr Crane outside the tie up stall having an argument with Mr Hepworth. He and Mr Bow immediately started walking down there with them under his observation. He then saw Mr Crane grab Mr Hepworth by the vest, turn him round and propel him out of the stall although they were still close together. By then they had reached the stall and Mr Gilbert had “got under the rail and got between Tony and James” and then managed to get Mr Crane to walk away. [15] Mr Gilbert Bow also gave evidence to the stewards and corroborated that version of events. [16] It seems to me, that when one looks at the evidence of these two gentlemen, who had absolutely no interest in either party, they were in a position to observe the incident from the time they heard the raised voices until Mr Crane and Mr Hepworth were separated. This is the most reliable and independent evidence and I intend to rely on it. [17] On the basis of that evidence the actual assault on Mr Hepworth was minor and did not result in any physical injury. The assault itself was a grabbing of Mr Hepworth’s vest or clothing and then pushing him away out of the stall. There is no independent evidence to suggest that he was pushed into a brick wall, that Mr Crane took a swing at Mr Hepworth, or that Mr Hepworth fell to the ground. It is on the basis of the descriptions given by Mr Hearn and Mr Bow that the seriousness of this incident ought be judged. [18] Mr Crane, in the written submissions of his counsel says that this was not a premeditated assault; it arose out of a heated discussion where tempers were frayed. He also submits that the incident itself did not involve any racing issue but was as a result of personal animosity between Mr Crane, Mr Hepworth and Darlene Duryea. The incident could have happened anywhere it just happened to happen on the racetrack that morning. [19] Mr Crane readily accepted that his conduct was improper and throughout the inquiry he cooperated with the stewards in assisting them to work out what actually happened. His cooperation and admission of improper conduct is a matter that should be taken into account on penalty. [20] He also says that throughout the hearing he expressed sorrow and remorse for the conduct and apologised for it. [21] As is usual in cases where a disqualification is involved there is a knock on effect to those who are associated with or are in the employ of the trainer. Here, Mr Crane has submitted that he cares for about 48 horses at the training complex. There are there for spelling, breaking, pre training, training and rehabilitation. He has currently 12 horses in work and eight pre trainers. He has three fulltime staff and two track work -- 4 of 6 -- 5 riders. However if Mr Crane is disqualified from holding a trainer’s license, these people will be out of work. [22] Mr Crane also has dependants who rely on his income, these include his partner, father and step mother. He also derives income as the property manager of the horse training and adjustment property known as River Bend Lodge where he lives and all of the horses are located. As a disqualified trainer he can no longer reside at a property because it involves the training of horses. [23] These are all matters that should properly be taken into account. Racing Queensland contend that this is a serious matter, which brings the industry into disrepute. Mr Crane has previous history of improper conduct, which includes misconduct in May 2003 at Rockhampton where he was fined $200.00, a misconduct offence in November 2006 at Gympie where he was fined $500.00 ($300.00 of which was suspended for 6 months). At Deagon in December 2010 he was again charged with improper behaviour and fined $500.00 ($300.00 was suspended for 12 months). In March 2011 improper behaviour at Deagon $500.00 fine and then in March 2011 again a charge of improper behaviour with a fine of $300.00. [24] Mr Crane has set out the circumstances of those various incidents in paragraph 11 of his statement of evidence. Without going into detail, it is apparent that his conduct in respect of each of these incidents was not serious misconduct. [25] Racing Queensland rely on a recent decision to support the penalty imposed and that is in respect of Mr Guy Williams who was a licensed track work rider when he was involved in an assault on another track work rider, Mr O’Neil on 15 September 2012. Mr Williams physically assaulted Mr O’Neil by forcefully throwing him to the ground and then punching him whilst on the ground resulting in physical injury. Quite properly the stewards found this was improper conduct. The disqualification imposed was for 3 months. It is submitted that having regard to Mr Crane’s history, and the comparative case of Mr Williams a 3 months’ disqualification was appropriate in the circumstances involving Mr Crane. However, I am not satisfied that his case is directly comparable. [26] Racing Queensland have also provided me with a list of “Licensee Bans” between January 2005 and December 2012 in addition to the Williams case, there also the case of Carl Simmonds who was disqualified for 4 months by threatening to assault a person with a metal pipe. That occurred in January 2012. Another case is that of Mr Everingham who is a licensed stable hand and Mr Jones a licensed trainer who are both involved in a physical altercation in June 2011 at Rockhampton. Both were disqualified for 3 months, there is no detail in the stewards report as to the extent of the altercation although by reference to the words physical it would suggest that they physically assaulted each other. -- 5 of 6 -- 6 [27] I have also been referred to Eggleston v Racing Queensland Ltd.3 In this case Mr Eggleston, as chairman of the Gold Coast Turf Club, engaged in abusive conduct towards security officers engaged by the Club to have a presence in the entertainment area of the club’s precincts. Mr Eggleston comments to the security people were very derogatory and abusive. Because of his position of authority within the club and the need to set an example, the Tribunal imposed a fine of $1,500.00. I should also say of the three counts of improper conduct alleged against Mr Eggleston, the Tribunal was satisfied that only two were made out. The incident involving Mr Crane is more serious than Eggleston in that a physical assault was involved. [28] It seems from these cases that Racing Queensland is striving for consistency in the imposition of penalty but as has been said before, each case must depend on its own circumstances. Mr Crane has a stable of horses in work and not only will he be affected by the disqualification, but so will those that are employed by him. His position at River Bend Lodge will also be at significant risk. Mr Moody who is the owner of River Bend Lodge has provided a statement commending Mr Crane’s professionalism in the conduct of his business as a trainer, his honesty and his ability being unquestionable. He is developing a complex for the purposes of not only training horses for the track, but re education and the spelling of horses. He confirms that if the disqualification is continued there will be consequences for those employed by him and horses will have to be transferred to other trainers. [29] Here, the incident itself was not a serious assault. No harm was done to Mr Hepworth and upon the intervention of Mr Hearn the situation calmed down very quickly. I accept the incident was not industry related but arose out of personal animosity between the parties. The imposition of a disqualification of his trainer’s license in these circumstances, despite his previous conduct, is excessive and, similar to the other incidents, a monetary penalty is more appropriate for this type of conduct. Taking into account Mr Crane’s previous conduct, the penalty must be not only serve as a deterrent to others but also to remind Mr Crane that conduct of this type would not be tolerated as it does bring the industry into disrepute. [30] The penalty of disqualification of three months is set aside and instead the order will be that Mr Crane must pay a monetary penalty of $2,000.00. The penalty must be paid by 28 February 2013. 3 [2011] QCAT 394. -- 6 of 6 --