Cullen v Racing Queensland Ltd [2010] QCAT 397

CITATION: Cullen v Racing Queensland Ltd [2010] QCAT 397 PARTIES: Mr Michael Joseph Cullen v Racing Queensland Limited APPLICATION NUMBER: OCR196-10 MATTER TYPE: Occupational regulation matters HEARING DATE: 16 August 2010 HEARD AT: Brisbane DECISION OF: Richard Oliver – Senior Member DELIVERED ON: 18 August 2010 DELIVERED AT: Brisbane ORDERS MADE: The application is dismissed CATCHWORDS : Procedural fairness; whether the Respondent was obliged to provide the Applicant with all relevant information prior to being questioned; Bell v Queensland Racing Authority (2008) QRAT 25 distinguished. APPEARANCES and REPRESENTATION (if any): APPLICANT : Mr Patterson, Solicitor, of Macrossan and Amiet for the Applicant RESPONDENT: Mr Orchard, Solicitor for the Respondent. -- 1 of 5 -- REASONS FOR DECISION 1. Tomary Flame was entered into a race at the Rockhampton race course on the afternoon of 19 June 2010. Before the horse could be entered into the race it had to be cleared race by stewards because of its fractious behaviour in a race at Quilpie on 8 May 2010. As a consequence of that behaviour the horse was barred from racing until it conducted a “jump out” to the satisfaction of stewards. 2. A jump out was organised on the morning of 16 June 2010 at Thangool with the Applicant riding the horse. Unfortunately the local steward, Mr Jason Devine did not attend the track that day and even though the horse jumped out, it could not be passed to race at an official race meeting. 3. For a horse to pass or get a clearance to race, the jump out must be conducted in the presence of a steward and the horse must be ridden by a licensed jockey. 4. In an attempt to overcome the problem, arrangements were made for Tomary Flame to do another jump out on Saturday morning, 19 June 2010 before its transportation to Rockhampton. Mr Hicks made arrangements to have Mr Devine present for the jump out but the horse was ridden by Josh King, who was not a licensed jockey. 5. Therefore, on both occasions the criteria was not met for the horse to be properly passed to present at an official race meeting. 6. There was obviously some confusion on the part of Mr Devine because he did in fact clear the horse to race and it was transported to Rockhampton for the afternoon’s races. 7. In the early afternoon, it is said between the first and second race, the stewards at Rockhampton and held an inquiry after receiving some information concerning Tomary Flame. The information raised a question about Tomary Flame’s eligibility to participate in the races that afternoon. The stewards panel consisted of Mr Collins, Mr Turner, Mr Meek and Mr Nalder. Mr Hicks, the trainer and the representative of the owner attended the inquiry and responded to questions put to him by the chair person, Mr Collins. The transcript shows the following:- “MR COLLINS: Yes. This is in relation to Tomary Flame being – an embargo placed on the horse at Quilpie on 8 May when it bucked and failed to take any competitive part in the race. Now, I had a phone call – I did phone Mr Jason Devine ---- MR HICKS: Jason, yes. MR COLLINS: He’s the starter down there – to inform you the horse hadn’t been cleared. So you tell us – you say the horse has now been cleared. What action has been taken with the horse? MR HICKS: We jumped her out this morning, sir. She went about 600 metres at a good – come out (inaudible) and Mick rode her at a good three-quarters and ---- -- 2 of 5 -- MR COLLINS: Who rode her, sorry? MR HICKS: Mick Cullen. MR COLLINS: Michael Cullen.” 8. The inquiry continued, but was adjourned for a short period after which Mr Cullen attended the inquiry. The first statement made by the chairman in the presence of Mr Cullen was as follows and then continued:- “THE CHAIRMAN: Now joining the stewards is jockey Michael Cullen. Jockey Cullen, the stewards have just investigated in regard to Tomary Flame being passed this morning at Thangool. JOCKEY CULLEN: Yes, sir. THE CHAIRMAN: Your name has been mentioned that you rode the horse. JOCKEY CULLEN: Yes, sir. THE CHAIRMAN: It was you that rode the horse? JOCKEY CULLEN: Yes. THE CHAIRMAN: It wasn’t Josh King? JOCKEY CULLEN: No, definitely me. THE CHAIRMAN: Definitely you? JOCKEY CULLEN: Yes, sir. THE CHAIRMAN: How did the horse perform? JOCKEY CULLEN: Good, sir. She went – the thing is she don’t like rubber, and I asked Matty then don’t put rubber underneath, and he’s gone and done it again. She don’t like rubber under her saddles. Like when Luke rode her at Thangool, she jumped and then she wanted to crow hop because she pinched, and that’s – she’s got that feeling now. She thinks when she jumps it’s going to do it again, but without any rubber under her, she’s as good as gold. I just told him that then to don’t put rubber. I said she would probably prefer a mat. “Oh, I’ve got that thick rubber.” I just shook my head. THE CHAIRMAN: He’s riding the horse not you. But you rode the horse this morning? JOCKEY CULLEN: Yes. THE CHAIRMAN: Not Josh? -- 3 of 5 -- JOCKEY CULLEN: No. Excellent, sir. Done everything right. THE CHAIRMAN: All right. Thank you. JOCKEY CULLEN: All right, Boss.” 9. As a consequence of that interview with Mr Cullen and Mr Hicks, the stewards cleared the horse to race that afternoon. 10. After further investigation the stewards became satisfied that the horse was not, in fact, cleared in accordance with the rules of racing and charged Mr Cullen with a breach of AR175(g) which is giving false or misleading evidence at an inquiry or an appeal. He was suspended for 2 months and on an appeal to the First Level Committee the conviction was upheld but the suspension was reduced to 2 weeks. 11. The Applicant now seeks a review of that decision. 12. The principle ground of review is that the stewards, before conducting the inquiry or questioning Mr Cullen failed to appraise him of all the relevant facts in relation to the jump out of Tomary Flame and in particular, they had information from Mr Devine that it was in fact Josh King who rode the horse on the morning of the 19th . Mr Patterson, Solicitor, who appeared for Mr Cullen submits that there was a conversation with Mr Collins and Mr Devine which resulted in the enquiry and I should infer that this information was given to Mr Collins. 13. It is further submitted that as a matter of natural justice Mr Cullen should have been informed of all of the information in possession of the stewards before he was asked any questions. 14. Mr Patterson relies on Bell v Queensland Racing Authority1 where the former Queensland Racing Tribunal said:- “What appears to have occurred is that prior to the initial interview at 8.38am on 24 July, Mr Cooper, the chief steward in North Queensland, had been made aware by a part time steward, Mr Mawhinney, that no trial had ever taken place. Mr Cooper should have, in the opinion of this Tribunal, may Mrs Bell aware of this information and should then have questioned her about the circumstances. He elected, however not to do so and acted, it appears as an agent provocateur leaving Mrs Bell and subsequent persons to conceal this fabricated story for what appears to be _ little, if any, gain. There is no doubt that had Mr Cooper warned Mrs Bell of the evidence of which he had been made aware of that should would then, in this Tribunal’s view have agreed that there had been no such trial. Had that situation arisen, then no offence would have been committed. On that issue alone, this Tribunal would have had difficulty in determining that a three(3) months disqualification was reasonable in all the circumstances.” 15. In my opinion, the circumstances here are distinguishable from those in Bell. It seems that the stewards in that case were actually conducting an investigation and interviewing persons they believed to be involved in a breach of the rules of racing. In the circumstances of that case it may have been appropriate to forewarn the 1 (2008) QRAT 25 -- 4 of 5 -- person being interviewed of material in the steward’s possession but here, the stewards were, in my view from what appears in the transcript simply enquiring as to the circumstances of Tamaro Flame’s jump out. 16. This view is to some extent corroborated by the transcript where, in particular, Mr Collins expressed surprise at the response of Mr Hicks when told that “Mick rode her at a good three quarters”. 17. The issue before the stewards was whether or not the horse had a proper clearance and if in fact Mr Cullen had ridden the horse on the Saturday morning then it would have been cleared to run that afternoon. It seems to me it is for that reason that Mr Cullen was asked by the stewards of his involvement to determine whether the horse could race rather than, to consider laying any charges against him for any breach of the rules of racing. 18. Mr Patterson in his submissions referred to the “hearing rule” the principles of which must ensure that a person who’s interests would he adversely affected by a decision must be given an opportunity to present his or her case2 . Mr Patterson further submitted that the hearing rule was relevant because it relates to the failure of the steward to advise Mr Cullen that he (Mr Collins) had been made aware that Mr Cullen was not the rider of the horse on 19 June 2010. 19. In my opinion, this does not follow from the transcript. As I have indicated the surprised expressed by Mr Collins supports this view and further, if the stewards were firmly of the view that Mr King had ridden the horse on the Saturday morning at the jump out, they would not have cleared the horse to race that afternoon. 20. In my opinion Mr Cullen was no more than a witness in the inquiry who was expected to assist the stewards in determining whether or not Tamaro Flame was cleared to ride that afternoon. 21. Subsequently when it did transpire that Mr Cullen had misled the Tribunal then it was decided to proceed against him for breaching the rules of racing. It is clear that at the inquiry, stewards accepted the truthfulness of Mr Cullen’s statement. 22. I have come to the conclusion that in the circumstances of this case, the stewards were not obliged to appraise Mr Cullen of all of the facts known to them prior to questioning him, because there was no reasonable expectation on their part that he would be charged with any breach of the rules of racing. They were simply trying to ascertain the true facts concerning the jump out. 23. Section 22 of the QCAT Act requires this Tribunal to consider the matter afresh. Having had regard to the evidence from the initial inquiry and the material filed by both parties, in particular the submissions of Mr Patterson, I have come to the view that there are no grounds for varying the decision of the First Level Appeal Committee and the application is dismissed. 2 Kioa v West (1985) 159 CLR 550 -- 5 of 5 --