Eggleston v Racing Queensland Limited [2011] QCAT 394

CITATION: Eggleston v Racing Queensland Limited [2011] QCAT 394 PARTIES: Mr Andrew Eggleston (Applicant) v Racing Queenlsand Limited (Respondent) APPLICATION NUMBER: OCR097-11 MATTER TYPE: Occupational regulation matters HEARING DATE: 17 June 2011 HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member John Bertelsen, Adjudicator DELIVERED ON: 12 July 2011 DELIVERED AT: Brisbane ORDERS MADE: [1] The decision of 11 May 2011 is confirmed. [2] The penalty of 2 months disqualification is set aside. [3] The applicant is fined the sum of $1,500 to be paid by 30 September 2011. CATCHWORDS: Racing – jurisdiction- whether the conduct of the applicant was a “matter relating to racing” within AR.7 – whether Stewards had jurisdiction to inquire into the applicant conduct pursuant to AR.8 – whether evidence supports the particulars of “unseemly conduct’ pursuant to AR.178(q) – assessment of credibility of witnesses Penalty – where all particulars of the charge not proved – where fine appropriate in the circumstances -- 1 of 11 -- 2 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Andrew Eggleston was represented by Mr McLeod instructed by Hopgood Ganim Lawyers RESPONDENT: Racing Queensland Limited was represented by Mr Murcoch SC REASONS FOR DECISION [1] Andrew Eggleston is Chairman of the Gold Coast Turf Club. He has held that position since 2009 and been a member of the club for 24 years. His duties as Chairman involve overseeing the operations and running of the Turf Club, attending the racecourse as necessary including during weekday and weekend race meetings. He also reports to other directors and the Chief Executive, Grant Sheather, at monthly board meetings.1 [2] The Turf Club had for some years engaged a security company, HTP Security Pty Ltd, to provide security at the racecourse as required under its licensing conditions. This was also for the benefit of the public and patrons who attend the race course and use the club’s facilities. [3] On 11 December 2011 at approximately 6pm, Mr Eggleston was involved in an incident with two security officers, employees of HTP. It is alleged by the security officers Mr Eggleston confronted them and spoke to them using abusive language. Within minutes of this occurring the principal of HTP, Mr Henry Davis, joined the group. Mr Eggleston is alleged to also have used abusive language towards him and called him a particularly offensive name. [4] Subsequent to this incident, Mr Davis made a complaint to Racing Queensland and an investigation was conducted into the incident. As a consequence of that investigation, the Stewards convened an inquiry on 4 April 2011. The Stewards had statements of evidence from the two security officers, Karanveer Singh and Angaddeep Singh. Mr Davis also gave evidence both in statement form and orally at the Inquiry. Mr Eggleston provided a statement to the Stewards in response to the allegations and participated in the Inquiry. The Stewards also obtained statements from other persons including: Grant Sheather, Chief Executive Officer; James Leskovar, Operations Manager; and Pamela Crews, Totalisator Manager. Only Mr Leskovar witnessed part of the discussion between Mr Eggleston and Mr Davis. There was also a transcript of the conversation between Mr Davis and Mr Eggleston and DVD vision of Mr Eggleston. Both were recorded by Mr Davis at the time. 1 Exhibit 6 paragraph 8. -- 2 of 11 -- 3 [5] The Stewards gave Mr Eggleston an opportunity to question the witnesses during the Inquiry. A transcript of the Inquiry has been produced for our consideration. [6] At the conclusion of the Inquiry and sensibly, the Stewards adjourned to give them time to consider the evidence they had heard that day, and to give Mr Eggleston a further opportunity to make submissions in respect of that evidence. [7] Mr Eggleston encountered some difficulties in getting his final submissions to the Inquiry but ultimately it was resumed on 6 May 2011. The various statements obtained were tendered as exhibits and the chairman, on behalf of the Stewards, recorded that the Stewards had come to the view that Mr Eggleston was guilty of the charge laid that is:- “That on 11 December 2010 at the Gold Coast Turf Club (GCTC) and whilst acting as the Chairman of the GCTC, you acted in a manner where your behaviour was deemed to be unseemly whilst dealing with security staff.” [8] The Stewards imposed a penalty of a two month disqualification. The effect of the disqualification will prevent Mr Eggleston from attending the racecourse, being involved in training, nominating a horse for a race or have any horses trained. The specifics of the disqualification are set out in Australian Racing Rule 182. Although Mr Eggleston does hold a trainer’s license and has done so for many years, he has not utilised it for some considerable time. [9] After the disqualification was imposed, Mr Eggleston filed an application to review the Stewards’ decision in the Tribunal on 13 May 2011. He also applied for a stay of the decision. The stay has been granted, on conditions, with the consent of Racing Queensland. [10] In conducting the review hearing the Tribunal must review the decision by way of a fresh hearing on the merits and produce the correct and preferable decision.2 It is not the Tribunal’s function to consider the process by which the decision was arrived at or identify any error in the process or the reasoning that led to the decision being made. There is no presumption that the original decision is correct.3 [11] In hearing the matter afresh we are mindful that we need to be reasonably satisfied that Mr Eggleston engaged in the behaviour alleged and that it constitutes unseemly conduct.4 Stewards’ Jurisdiction 2 QCAT Act, section 20. 3 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58. 4 Briginshaw v Briginshaw (1938) 60 CLR 359. -- 3 of 11 -- 4 [12] It was contended at the commencement of the hearing, that the Stewards did not have any jurisdiction under the Rules of Racing to charge Mr Eggleston with a breach of AR.175(q) because his conduct did not fall within the definition of “any matter relating to racing” as provided for in AR.7(iii)(c). [13] The Australian Rules of Racing confers on the Principal Racing Authority, including Racing Queensland, certain powers which are set out in AR.7. This includes:- “(c) To enquire into and deal with any matter relating to racing and to refer and/or delegate any such matter to Stewards or others for investigation and report and/or for hearing and determination and, without prejudice to the generality of the foregoing power, to enquire at anytime into the running of any horse upon any course or courses, whether a report concerning the same has been made or decision arrived at by any Stewards or not.” [14] Authority is conferred on Stewards to assist in the control of racing pursuant to AR.8. In particular, here, subsection (d) and (e) are relevant:- “(d) To regulate and control, enquire into and adjudicate upon the conduct of all officials and licensed persons, persons attendant on or connected with a horse and/all other persons attending a racecourse. (e) To penalise any person committing a breach of the rules.” [15] As we have indicated the particular rule Mr Eggleston is alleged to have breached is AR.175(q). [16] The relevant factual matters supporting the submission that the particular incident was not a matter relating to racing were, inter alia:- ▪ Due to inclement weather, racing at the Gold Coast Race Course was cancelled early in the afternoon. ▪ Social activities continued within the club premises, in particular, at the Might and Power bar. ▪ A band was engaged to entertain patrons with live music at the Might and Power bar. ▪ The premises were used for entertainment, consumption of alcohol and music to about 7pm that evening. ▪ The Might and Power bar was operating as an entertainment venue and Stewards had concluded their duties for that afternoon at approximately 5pm. [17] Therefore, it was submitted that the conduct of Mr Eggleston was not a matter that “related to racing”. His conduct related to his ongoing concern about the prominence of security officers in the entertainment precinct which impacted on the general ambience of the area. It should be pointed out that the security officers had been at the racecourse for the whole day -- 4 of 11 -- 5 and, as racing was cancelled, they moved to various parts of the course facilities and it just happened that both the Singhs were allocated to the Might and Power bar. They were still required for the safe removal of money from the course. Some of the takings to be removed clearly related to racing activities. [18] Whether or not Mr Eggleston’s engagement with the security officers related to matters of racing seems to be somewhat academic. His discussion with them certainly related to the use of the Turf Club’s facilities during the afternoon and evening of an official race meeting, during which patrons could bet on interstate races. [19] Mr Murdoch SC, for Racing Queensland, relies, in part, on a decision of this Tribunal in Vains v Racing Queensland Ltd.5 There the applicant Mr Vains was the President of the Bowen Turf Club. In an incident which occurred in the car park of the Turf Club between Mr Vains and Mr Brunker, it was found that Mr Vains had struck Mr Brunker in the face. [20] The question of jurisdiction was raised in that case because the incident, although occurring during a race meeting, was in the car park and not on the racecourse premises. The car park was owned by the Bowen Turf Club. A similar challenge to jurisdiction was mounted in that it was contended Mr Vains was not a “participant in racing” and the dispute between Mr Vains and Mr Brunker did not relate to racing. The Tribunal observed that if Mr Vains’ involvement in the incident was as a private citizen, then he would not be bound by the Rules of Racing. However, the finding was that he was acting in his capacity as President of the Bowen Turf Club and therefore the Rules of Racing applied. [21] We see no reason to distinguish Vains here because clearly, Mr Eggleston was giving instructions to the security officers in his capacity as Chairman of the Turf Club. Furthermore, Mr Eggleston’s discussion/argument with Mr Davis was also in his capacity as Chairman of the Turf Club. As Mr Davis said, had Mr Eggleston not been in such a position, it is more likely than not that he would have been escorted from the premises. [22] It is also submitted by Racing Queensland that there should be no distinction found between the entertainment aspects of a race meeting as opposed to matters associated with racing. Mr Murdoch submitted, and we accept, that although the races themselves had been cancelled, bookmakers were still in attendance taking bets on interstate races and the TOTE was operating up until near the time of the incident. For all intentional purposes, a “race meeting” was being conducted as a phantom meeting, the only difference being that there was one venue only in the country that Saturday afternoon which was not participating in actual horse races. 5 [2010] QCAT 669. -- 5 of 11 -- 6 [23] As the afternoon racing activities wound down, patrons and persons associated with the Turf Club lingered on in the facilities provided before closing at about 7pm. It is difficult, and impractical to attempt to draw some artificial time line when matters relating to racing ceased to occur and pure entertainment takes over. [24] In this regard, we accept Mr Murdoch’s submission and also accept that Mr Eggleston, in attempting to organise the security officers, was also engaging in a matter relating to racing in that he was trying to improve the ambience of the venue resulting obviously, in more patrons utilising the venue which would increase the revenue of the club and encourage a return for further race meetings. [25] Therefore, we have come to the conclusion that Stewards did have jurisdiction under AR.8 and AR.7 combined to inquire into Mr Eggleston’s actions. Substantive issue [26] The Stewards provided particulars of the charge against Mr Eggleston by reference to certain paragraphs in the statements of the Singhs and the statement of Mr Davis. [27] The unseemly conduct, as particularised, can be reduced to three specific incidents. The first is when Mr Eggleston approached both Karanveer Singh and said “what the fuck are you guys doing here; get the fuck out of here”. [28] The second incident was when Mr Davis came into the group within minutes after those words were spoken and Mr Eggleston is alleged to have said to him, “I told these two fuck heads to split up and move somewhere else”. [29] The third incident relates to when Mr Davis and Mr Eggleston were moving from the position where Mr Eggleston approached the Singhs back to the bar and he said directly to Mr Davis after Mr Davis tried to detain him, “you go and get fucked… don’t talk to me you fuck head.” [30] There is also an allegation that Mr Eggleston was affected by alcohol at the time he engaged in this conduct. It was not seriously contested that if the Tribunal found that Mr Eggleston spoke the alleged words to the Singhs, and made the statement to Mr Davis on his joining the group, that would amount to unseemly conduct given Mr Eggleston’s position within the Turf Club. The first Incident [31] The determination of whether Mr Eggleston made the statement attributed to him by the Singhs will depend on findings of credit. Mr Eggleston categorically denies making the statement to both of them. There is no -- 6 of 11 -- 7 transcript of this conversation nor any witnesses to it. The Singhs corroborate each other with precision as to the exact words used by Mr Eggleston. [32] We are urged to reject the Singhs’ evidence. It is contended that it is unreliable and contrived because they both agree on the exact words. Karanveer Singh’s statement was made some months after the event, and Angaddeep Singh’s statement was made in January and it is contained in an email sent to Mr Davis from India. [33] Whilst there are some troubling aspects of their evidence it is still sufficiently credible such as to be favoured over the evidence of Mr Eggleston. [34] In respect of Karanveer Singh’s evidence, there is a clear inconsistency in what he says in paragraph 6 of his statement and the evidence he gave in the inquiry.6 However, the evidence he subsequently gave in response to questions by Mr Eggleston were consistent with paragraph 6 of his statement.7 These inconsistencies are troubling and do impact on his credibility. However, Mr Singh’s evidence that Mr Eggleston was agitated and his voice became louder as the discussion ensured was consistent with Mr Eggleston’s overall demeanour as shown on the DVD. Mr Singh’s evidence that he tried to explain why he was positioned where he was and that his explanation fell on deaf ears as Mr Eggleston was insisting that he move on, is also consistent with Mr Eggleston’s behaviour. His evidence that Mr Eggleston’s voice became louder and louder seems to be inconsistent with those who have given statements in which they say they did not hear the conversation but this is not, in our view, sufficient to discredit Mr Singh. Mr Singh also said that he had observed Mr Eggleston drinking during the day which is consistent with his evidence. [35] Similarly, Angaddeep Singh’s evidence came under scrutiny in particular, his acknowledgment that he did not include all of Mr Eggleston’s “abusive language”. Mr Singh contended that Mr Eggleston used other abusive words but these are not recorded in his statement because he is somewhat vague about what was said. He kept reiterating that he was only recording what he truthfully recalled. It is contended that this then goes to the reliability of the whole of his evidence. [36] There is one important feature of the conversation which gives credit to the Singh’s evidence. That is to say, that as they were having a conversation with the Chairman of the Turf Club, they are more likely to recall his initial statement. If it was not for these inflammatory words, it is unlikely that the incident would have escalated to the point where Mr Davis needed to intervene in the manner in which he did. 6 Transcript page 57 line 40. 7 Transcript page 58 line 30. -- 7 of 11 -- 8 [37] In contrast to what Mr Eggleston contends occurred is what is seen on the DVD. At the time the DVD was switched on by Mr Davis soon after his arrival, Mr Eggleston was clearly agitated. He then became more agitated when provoked by Mr Davis’ conduct. However, it is still evident that throughout the whole conversation with Mr Davis and even when Mr James Leskovar intervened, Mr Eggleston consistently used what might be described as colourful language. This language is used in general conversation not particularly directed to anyone save for when he referred to Mr Davis as a “fuck head” when attempting to resist Mr Davis’ actions in trying to restrain him. Mr Eggleston’s denial in the face of his own consistent behaviour, being agitated and to an extent remonstrating with Mr Davis and his use of language is inconsistent with his denial. Although we have some reservations about the Singhs’ evidence, it is not sufficient to prefer Mr Eggleston’s evidence to theirs. [38] We therefore find that Mr Eggleston did make the statements to the Singhs as alleged and conclude that the use of that language in those circumstances by a person in Mr Eggleston's position would constitute unseemly behaviour for the purposes of Australian Racing Rule 175(q). The second incident [39] With respect to the statement made to Mr Davis we have some difficulty. Both Singhs say that as soon as Mr Davis arrived on the scene they were dispatched to stand away from both Mr Davis and Mr Eggleston. They were not privy to the conversation between them. [40] Mr Davis’ evidence is clear, that is, the first words said to him by Mr Eggleston in the company of both the Singhs was “I told these two fuck heads to split up and move somewhere else.” [41] That conversation does not appear in the Singhs’ statements, they did not give evidence that they heard Mr Eggleston say that to Mr Davis in circumstances where had it been said, they would have heard it. It was not until after this initial conversation were the Singhs told to move away and then the recording device was switched on. [42] Mr Eggleston denies this conversation and, in the absence of corroboration from the Singhs in circumstances where one could reasonably expect it to be corroborated, we accept his evidence on this point in preference to the evidence of Mr Davis. The third incident [43] Once Mr Davis turned on the recording device, the situation seemed to deteriorate. Mr Davis knew who Mr Eggleston was and was obviously agitated that Mr Eggleston had sought to intervene in where the security officers should be positioned within the Might and Power bar and then sought to clarify that with Mr Eggleston. The transcript of the conversation recorded at the time speaks for itself, but one queries why Mr Davis asked -- 8 of 11 -- 9 Mr Eggleston had he done security at any stage. Mr Davis was in a position where he could control the situation, however things seem to get out of hand with Mr Davis provoking Mr Eggleston by trying to physically restrain him. [44] What seems strange is that Mr Davis did not immediately calm the situation by moving away from Mr Eggleston together with the security people and making immediate arrangements for James Leskovar, the operations manager of the Turf Club to immediately come to the Might and Power bar and take control. He did arrive after some time but that was after the relationship between Mr Davis and Mr Eggleston deteriorated further. [45] In our view, Mr Davis did not handle the situation well which resulted in Mr Eggleston becoming more agitated, vocal and using colourful language to reinforce the points he was trying to make with Mr Davis. By the time Mr Eggleston returned to his friends across the bar matters started to settle belatedly and somewhat minimally with the intervention of Mr Leskovar. [46] There have been a number of statements provided by both Racing Queensland and Mr Eggleston. These include evidence from Mr Sheather, Mr Baldwin, Mr Greg Hughes, Mr Craig Hughes and Mr Jeff Nichols. None of this evidence would suggest that the patrons in the Might and Power bar were aware of the friction between Mr Davis and Mr Eggleston. The vision from the DVD indicates that all patrons seem to be oblivious to what was going on between these two. There is nothing to suggest that Mr Eggleston’s conduct caused general embarrassment or concern to any of the patrons in the bar that evening. [47] This was an incident only involving the Singhs, Mr Davis and Mr Eggleston without any disruption to the ambience or the atmosphere in the Might and Power bar that evening. [48] We have come to the view that the facts surrounding the third incident were not such that would constitute unseemly behaviour on the part of Mr Eggleston. Although his conduct that evening is somewhat regrettable in that he was put in a position by Mr Davis that he could not immediately extricate himself from, we find that the cause of this related to Mr Davis’ handling of the situation. Conclusion [49] Mr Eggleston’s behaviour on that evening certainly left something to be desired. His initial approach to the Singhs from a person in his position was inappropriate, distasteful and probably an abuse of his authority particularly given the words used by him. [50] This conduct does require sanction. -- 9 of 11 -- 10 [51] Mr Eggleston is a registered trainer. He has not trained horses for many years. Despite this, the template for the transcript for proceedings relates to “Licensed Trainer A Eggleston”. The implication is that disciplinary proceedings are being taken against Mr Eggleston in his capacity as trainer. However, the particulars of the charge relate to his position within the Turf Club. [52] In imposing a 2 month disqualification the Stewards said:- “Stewards have carefully considered the matter of penalty and are of the opinion that the behaviour of Mr Eggleston on 11 December 2010 at the Gold Coast Turf Club was a serious incident. Mr Eggleston was attending the Gold Coast Turf Club on that particular day as the Chairman of the Board of Directors of the club. It follows that he has a great responsibility to ensure his behaviour is of a high standard. Stewards are comfortable that Mr Eggleston did not fulfil his responsibility. Stewards also consider that the incident occurred in a public area of the Gold Coast Turf Club, a major provincial race course in Queensland, and would have been audible to persons in the vicinity. The purpose of imposing the penalty is to ensure the standards of the racing industry are upheld, and the Stewards are of the opinion that necessitates a penalty to serve as a deterrent to demonstrate to the industry that this type of behaviour is unacceptable and will not be tolerated. Despite being given an opportunity to provide submissions relating to penalty, Mr Eggleston has failed to provide these submissions for the stewards’ consideration.” [53] In the main, we agree with the Stewards’ observations and had all the particulars of the charge being made out, there may have been some justification for the penalty imposed. [54] It is of concern that Mr Eggleston did not bother to provide submissions in mitigation to the Stewards to assist them in their deliberation. We have read Mr Eggleston’s affidavit with respect to the reasons why he did not put submissions before the Stewards however, we do not accept that he genuinely made an effort to cooperate with the Stewards. His conduct was clearly evasive and he was relying on excuses which, on a critical analysis, did not justify his delay in providing submissions. This conduct is not becoming of a person in Mr Eggleston’s position within the racing industry who ought, by example, cooperate with the Stewards in performing their functions in responding to a legitimate complaint under the Rules of Racing. [55] As Mr Eggleston is Chairman of the Gold Coast Turf Club, a disqualification prevents him from visiting the racecourse, for any reason, and therefore is detrimental to the proper administration of the Turf Club. His conduct had nothing to do with his use of a trainer’s license and the disqualification has not impacted on any training of horses. -- 10 of 11 -- 11 [56] We consider that in all the circumstances a fine is warranted for the unseemly conduct found to be engaged in by Mr Eggleston and we therefore propose to confirm the decision of the Stewards but vary the penalty by imposing a fine. Having regard to the comparable decisions provided to us we consider a fine of $1,500.00 is an adequate sanction for his conduct. The fine is to be paid by 30 September 2011. -- 11 of 11 --