Facoory v Queensland Racing Ltd [2010] QCAT 120

CITATION: Facoory v Queensland Racing Ltd [2010] QCAT 120 PARTIES: Paul John FACOORY v QUEENSLAND RACING LIMITED APPLICATION NUMBER: OCR013-10 MATTER TYPE: Occupational regulation matters HEARING DATE: 30 March 2010 HEARD AT: Brisbane DECISION OF: Mr Richard Oliver and Mr Brockwell Miller DELIVERED ON: 15 April 2010 DELIVERED AT: Brisbane ORDERS MADE: 1. The application is allowed. 2. The applicant’s disqualification of 9 months is set aside. 3. The applicant is disqualified from holding a trainer’s licence for 4 months. CATCHWORDS : Racing Act 2002 – Australian Rules of Racing AR175(h)(ii) – licensed trainer – disqualified - TC02 levels in excess of the threshold. APPEARANCES and REPRESENTATION: APPLICANT : Mr J H Crowther RESPONDENT: Mr A J Orchard -- 1 of 6 -- OCR013-10 / Page 2 of 6 REASONS FOR DECISION 1. The appellant was the trainer of 2 thoroughbreds which produced positive swabs to TCO2 (bicarbonate of soda) when the horses were the subject of testing procedures in November 2009. 2. On 5 November 2009, the thoroughbred “Brilliant Ween” raced at Doomben. That horse was the subject of a pre-race test as also was “Our Man” again in a pre-race test prior to it competing at the Gold Coast Turf Club on 7 November 2009. Both swabs reflected an elevated reading above the threshold allowed for in the Australian Rules of Racing. For the purposes of consistency, it should be noted that initially a plea of guilty was entered which, when the matter first came before the QCAT, an issue was raised by the applicant that he had relied upon the evidence of a senior veterinary surgeon and as such was surprised that he could have, in any way, breached the threshold level. The Tribunal granted a stay of execution of the penalties until the determination of the matter and allowed the “guilty” plea to be set aside and substituted therefore a plea of “not guilty”. 3. The parties, during a mediation of the issues, determined to reduce the issues to writing for determination by this Tribunal. In that respect, the parties agreed that the following were the issues to be determined:- A. ISSUES IN DISPUTE 1. the nature of the conversation with Dr Martin Lenz, the veterinarian, about TCO2 included: • date/dates of conversation(s); • whether Dr Lenz’s conversation should have been relied on by the appellant; • if there was reliance, what is the effect on guilt and penalty? 2. the appropriateness of the penalty. B. ISSUES IN AGREEMENT “1. That the scientific evidence, including the levels of TCO2 in swabs taken of Brilliant Ween on 5 November 2009; and Our Man on 7 November 2009 are accurate and not in dispute; -- 2 of 6 -- OCR013-10 / Page 3 of 6 2. An admission by Paul Facoory of administering TCO2 to Brilliant Ween and Our Man.” 4. Since those issues were reduced to writing, it was, at the outset of the Review, suggested to the applicant that the question of guilt could not be put in issue. After some considerable discussion in that respect, the legal advisers for Mr Facoory identified that the matter would proceed solely upon the question of penalty. A plea of guilty to both charges was then entered. 5. Evidence was called to support the suggestion that in early October, Mr Facoory had a conversation with Dr Lenz during which discussion centred on what level of TCO2 could be given to a horse to place it above the threshold and thereby create, in effect, a positive finding to a swab. It was not in dispute that Dr Lenz agreed that there was a conversation and that during the course thereof he suggested that an amount of something of the order of 500 grams would be adequate to create such a result. Of course, Dr Lenz at no point in time conceded that he ever gave advice to Mr Facoory upon which Mr Facoory could or should have relied. It is indeed however unfortunate that the opposite seems to have in fact occurred. 6. In serious dispute was the issue of whether the first meeting between the two people took place at the Gold Coast Races on 3 October. Mr Facoory gave evidence that he collected the saddle from Jockey Andrew Spinks after race 3 at that meeting and then proceeded to his enclosure, or at least the enclosure to where his horse had been transferred. The horse in question, Brilliant Ween, was at the time being “strapped” by Mr Facoory’s son, Bradley, who also gave evidence and to certain extents, that evidence is appropriate to be considered. 7. The horse in question had been moved by Bradley from its allocated stall at number 33 to another number which he believed to be in the vicinity of stall number 80. Near that stall, was the horse Shanamin, which was in the overall care of a strapper, Katie Moscatelli. That issue is unremarkable, other than for the fact that Katie Moscatelli, by way of affidavit and evidence given to the Tribunal over the telephone during the course of the Review, acknowledged that Dr Lenz, the veterinarian, attended at her stall and took a sample from Shanamin and while doing so, no other persons were present who may have discussed anything with him. That sample was taken at 2.37pm on 3 October. The Respondent had been informed by the applicant, Mr Facoory, that he believed that it was in the vicinity of that time that Mr Facoory had the discussion with Dr Lenz. -- 3 of 6 -- OCR013-10 / Page 4 of 6 8. Both the applicant and his son gave evidence that the applicant spoke to Dr Lenz whilst he was taking a swab from a horse. It seems unlikely that the horse that was then being swabbed was “Shanamin” but neither of the witnesses were in any way persuaded otherwise than that there was a discussion between Mr Facoory and Dr Lenz and that Bradley Facoory saddled the horse at that time. It seems therefore that if there was a discussion, it was either before or after Dr Lenz sampled “Shanamin”. 9. Queensland Racing called Dr Lenz to give evidence and he was referred to his evidence in the transcript of the enquiry before the Stewards and also to the affidavit that he had sworn for the purposes of this Review. Interestingly, during the course of his evidence to the Tribunal, Dr Lenz was specifically able to recall a somewhat forceful character questioning him significantly and rapidly about the implications of TCO2 and he accepts that this was undoubtedly Mr Facoory. However, his view is that the discussion took place at the Gold Coast Racecourse on 7 November whilst he was taking blood samples from one of Mr Facoory’s horses. There is no doubt that a blood sample was taken from Our Man when it raced at the Gold Coast on 7 November. Dr Lenz was able to identify in his evidence under oath, that he certainly remembered the serious line of questioning directed to him because of the unusual attitude adopted by the person concerned, namely Mr Facoory. He confirmed that he was a forceful and robust individual in his questioning who wanted direct and quick answers to a series of questions and that Dr Lenz provided those answers, not so much flippantly, but with as little fuss as possible, as he was not willing to become involved in any discussion with a trainer whilst undertaking a sampling procedure. It is perhaps noteworthy that Dr Lenz did not refer to this forceful and robust approach and unusual attitude in either the evidence he gave to the initial enquiry or in his affidavit that was submitted during the course of the pre-trial considerations of this Review. 10. Mr Facoory on the other hand, is adamant that his initial discussion took place with Dr Lenz at the Gold Coast but not while one of his own horses was being swabbed. He agrees with the comments relative to the ingestion or intake of 500 grams of bicarbonate of soda being referred to by Dr Lenz. He said he asked the questions to ensure that in his dealings with horses, and in his use of TCO2, he would certainly ensure that a smaller amount than that identified as 500 grams, would be used and in fact identified three tablespoons as the dosage that he had given to -- 4 of 6 -- OCR013-10 / Page 5 of 6 each of the horses in question. It was not contested that three tablespoons would equate to approximately 150 grams. 11. It is difficult for this Tribunal to form a view as to when a discussion took place, but having considered the evidence given by all the parties, it is reasonable to accept that some discussion did take place in early October. We are therefore prepared to give the benefit of the doubt to the applicant on this point. 12. The question then is whether Mr Facoory is entitled to rely upon information that was passed to him by Dr Lenz or anyone else relative to the administration of a substance to a horse. Mr Facoory certainly gave evidence that in his opinion, Dr Lenz was a person more than capable of giving proper advice on matters in respect to which he was expert and that he therefore relied on the information. He made some other earlier enquiries of the substance in question from both trainers and other veterinary surgeons, but all of the information seems not to have given him a great deal of comfort in the four years during which he said he was using bicarbonate of soda on his horses. He was, he said, cognisant that the substance would prevent the onset of lactic acid in his horses and would enable them to run to their optimum performance, but all the while be under the threshold proscribed by the legislation. 13. In the opinion of this Tribunal, it is not sufficient for a trainer to seek to rely on information that may have been imparted to him during the course of a race meeting from someone who was not retained by him to give proper advice, but was merely undertaking his duties on the racecourse and at the same time being somewhat frustrated and annoyed by persons wanting details about procedures etc. Mr Facoory failed to seek that appropriate advice and was in the circumstances reckless in his administration of the substance in question to both of his horses. 14. Mr Orchard for the Respondent, Queensland Racing, was of the opinion that the dates of the meeting were of paramount importance, as, if the discussion between the two gentlemen occurred in November, then there could be absolutely no reliance placed on what Dr Lenz had said. Mr Orchard believes this Tribunal should therefore increase the penalty. As we have said, we believe the meeting to have occurred, or some discussion at least to have taken place, in October. Having determined that issue, the suggestion by Queensland Racing that the penalty of nine months that had been imposed by the Stewards should be increased should be rejected. -- 5 of 6 -- OCR013-10 / Page 6 of 6 15. Whilst Mr Facoory relied on some very general advice or whether or not he should have taken notice of it in the first place, is unfortunate, but he did rely to some extent at least on what Dr Lenz had told him. He did however breach the rule of racing in question and he must therefore pay the penalty for doing so. The Respondent suggests that the administration rule demands a significantly higher penalty than would ordinarily have been imposed on a party who simply presented a horse to race and did not acknowledge administering the substance in question. This Tribunal would, in normal circumstances, agree with that suggestion but in the particular circumstances that we have here, it seemed obvious that a person relied on information when he should not but he did so honestly and without intent to commit an offence. It is agreed that although there are two specific incidents, when considering penalty they should be treated as one. 16. It was also brought to the attention of the Tribunal that after the finding of guilt and the imposition of the disqualification of nine months, the Respondent then determined to cancel the lease of a number of horses without first making proper investigation relative to whether a stay of execution of the penalty either had been sought or even granted. In doing so, the applicant suffered a significant loss of income that he estimated to be in the order of $4,000.00 to $4,500.00 per month. Furthermore, as a result of the removal of those horses, the applicant felt constrained to transfer his stables from the Gold Coast to a further western country town, again identifying a significant although not quantified financial loss on top of that already noted. 17. In the circumstances, the applicant’s advisers recommended that in view of the issues that had been raised, whilst a finding of guilt had been accepted and acknowledged, it would be appropriate for there to be either a fine or a penalty not incorporating any suspension or disqualification of licence. This Tribunal is not minded to accept that submission but does acknowledge that there are significant matters that demand that the Tribunal interfere with the decision previously handed down. Having regard to the financial implications and penalties already sustained, and to the loss of horses and other significant factors that have befallen the applicant, this Tribunal determines that an appropriate penalty would be a disqualification of the trainer’s licence for a period of four months. Had there been no identified loss of income to the extent noted in this Review, the penalty would have been set at a 6 month disqualification. In the circumstances, the Review is allowed and the penalty of four months disqualification is substituted for the penalty previously imposed by the Stewards of nine months disqualification. -- 6 of 6 --