Dixon v Racing Queensland Limited [2012] QCAT 331

CITATION: Dixon v Racing Queensland Limited [2012] QCAT 331 PARTIES: Grant Williams Dixon (Applicant) v Racing Queensland Limited (Respondent) APPLICATION NUMBER: OCR217-12 MATTER TYPE: Occupational regulation matters HEARING DATE: 6 July 2012 HEARD AT: Brisbane DECISION OF: Mr Richard Oliver, Senior Member Ms Michelle Howard, Member DELIVERED ON: 30 July 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The respondent’s decision on penalty is set aside and instead an order is made that no penalty be imposed. CATCHWORDS: Racing – where the applicant presented a horse with an elevated total carbon dioxide level above the prescribed limit – where charged with a breach of Australian Harness Racing Rules 190 – where applicant admitted to administering a supplement to the horse prior to a race – where subsequent testing of the supplement established that the supplement was the cause of the elevated reading – where applicant established he was not blameworthy – where penalty of 6 months disqualification set aside and no penalty imposed Queensland Civil and Administrative Tribunal Act 2009, ss 19, 20 Racing Act 2002, ss 143 , 352A Australian Harness Racing Rules, rules 188,188A Wallace v Queensland Racing [2007] QDC 168 -- 1 of 8 -- 2 Kehl v Board of Professional Engineers of Qld [2010] QCATA 58 Abbott v Racing Queensland Ltd [2012] QCAT 230 Leitenberger v Racing Queensland Ltd [2012] QCAT 248 Lawler v Racing Queensland Ltd [2012] QCAT 255 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Murdoch SC instructed by Gabriel Ruddy and Garrett for the applicant RESPONDENT: Mr James instructed by Racing Queensland Ltd for the respondent REASONS FOR DECISION [1] Mr Dixon was the trainer of the standard bred filly Mamanuca. She competed in a race at Redcliffe on 8 June 2012. Before the race, a blood sample was taken from her and on analysis, was found to have a total carbon dioxide (TCO2) level in excess of the prescribed limit of 36mmmol/L per litre. The Australian Harness Racing Rules (AHRR) provide that alkalinising agents, when evidenced by total carbon dioxide present at a concentration of 36mmol/L per litre in plasma, is a prohibited substance.1 [2] Because of the excessive TCO2 Mr Dixon was charged with a breach of AHRR 190 which provides that a horse shall be presented for a race free of prohibited substance and if the horse is presented with a prohibited substance, the trainer is guilty of an offence. [3] Stewards convened an inquiry on 21 June 2012 and found Mr Dixon guilty of a breach of rule 190. As a consequence of the breach they imposed a penalty of a disqualification from holding a trainers license for 6 months. [4] On 22 June 2012 Mr Dixon filed an application in the Tribunal to review the decision of the stewards. The Tribunal’s function on a review application is to hear and decide the review by way of a fresh hearing on the merits with the purpose of producing the “correct and preferable decision”. In doing so, the Tribunal has all the functions of the original decision maker.2 There is no presumption that the original decision is correct.3 [5] The material filed by Mr Dixon raises the following discreet issues. 1. Whether there was non-compliance with the Collection Procedures:- 1 AHRR 188 and 188A. 2 Queensland Civil and Administrative Tribunal Act 2009, sections 19 and 20. 3 Kehl v Board of Professional Engineers of Qld [2010] QCATA 58. -- 2 of 8 -- 3 a) Not sealing the plastic bag in which the blood samples were deposited; and b) Failing to include an absorption pad inside each packet of the three pocket security pouch. 2. Whether Mr Dixon has provided an explanation, which did not involve any blameworthiness on his part, which would warrant a more lenient penalty. [6] There is no dispute that Mamanuca did present with a prohibited substance and as AHRR 190 provides Mr Dixon must be found guilty of a breach of the rule. The question for us to determine is the extent of the penalty, if any, that should be imposed. Background [7] Mr Dixon has been a licensed trainer for 19 years. He operates a large training facility at Tamborine. At the facility he currently has about 65 horses in work with another 15 horses spelling on the property. It has two training tracks, an equine pool, walking machines, stabling and other infrastructure. It is one of the largest harness training facilities in South East Queensland. Mr Dixon has given evidence that so far this year, he has had about 1,200 starters in various harness race meetings in Brisbane, Redcliffe and the Gold Coast. [8] He denies ever giving horses sodium bicarbonate as an additive to their feed. He employs a strict feeding regime under his direct supervision and is consistent with the feed, supplements and management of the horses in his control. [9] Mr Dixon was unsure how he came by the product Green Amino but told the stewards he thought it was given to him as a promotion or prize from Nature Vet, the manufacturer of the product. In any event, the Wednesday before the subject race he thought the horse was a bit “flat” so he thought he would try the Green Amino to see if that picked her up. Upon reading the instructions on the packet, he drenched the horse with the product by mixing it in water and then using a nasogastric tube to administer it directly into the stomach. The horse seemed to improve the following day so he then bought another packet and mixed about 1/3 of the packet into the horse’s evening feed on 7 June. On the morning of 8 June, he mixed a further 1/3 packet of Green Amino into the feed that morning and the balance in a small feed which she had around midday. She was then loaded on a float to go to the races about 3pm on the afternoon of 8 June. From the time he started giving the filly Green Amino, the horse remained in her box apart from being on an exercise walker for a short period on the morning of 8 June. [10] On arrival at the Redcliffe Paceway she was given a drink of water which included some molasses to coax the horse to drink. Before the race she -- 3 of 8 -- 4 was swabbed but at all times remained in the control of Mr Dixon. She then raced later that evening. [11] After analysis of the blood samples the results showed an excessive level of TCO2. Mr Dixon went before the Stewards on 21 June 2012. The explanation he gave to the Stewards is consistent with that contained in his statement, that the only additional substance given to the horse was the Green Amino. He asked the Stewards to adjourn the inquiry so he could investigate the product further, but the Stewards declined the request because as it was a presentation charge and liability was strict, the adjournment would be of no utility. In any event, after hearing from Mr Dixon and considering other cases the Stewards decided to impose a disqualification of 6 months. Independent testing of Green Amino [12] After the hearing Mr Dixon took the horse to the University of Queensland Veterinary Hospital on 26 June 2012. The horse was placed into the care of Dr Andrew van Eps, a specialist in equine medicine. Dr van Eps provided a report to the Tribunal dated 29 June 2012 in which he sets out, in some detail, what occurred with the filly while in his care. [13] On arrival on 26 June 2012 at 10:46 a blood sample was taken. She was then stabled in a secure environment overnight and fed lucerne hay. Dr van Eps said the lucerne hay was grown by the university and provided to the vet hospital. Then, on the following day, a further blood sample was taken at 10:35am. At 10:40am she was given 3 litres of water in which was mixed 300gram of Green Amino. This again was administered through a nasogastric tube. Below is a table of TCO2 levels that were recorded by Dr van Eps. Actual time and date of blood sample analysis 10:46am 26.6.12 10:35am 27.6.12 2:45pm 27.6.12 4:27pm 27.6.12 7:31pm 27.6.12 10:20pm 27.6.12 7:33am 28.6.12 Time after dosing (h:min) -23:54 -0:05 4:05 5:47 8:51 11:49 20:53 TCO2 (mmol/L) 34.7 38 43.2 40.4 37.4 35.9 34.7 [14] It is immediately apparent that her total carbon dioxide was increased when she arrived at the stable. It is generally accepted that the normal TCO2 level for a horse is between 28mmol/L and 31mmol/L. However there was a substantial increase in the level of this filly which was unable to be -- 4 of 8 -- 5 explained by reasons other than a metabolism which generated an abnormally high TCO2. [15] From the table it is also apparent that upon being administered the Green Amino the filly’s TCO2 level shot up by 5.2mmmol/L. It then dropped over the next 24 hours. Her naturally high level is consistent with a pre race swab taken on 11 May 2012 which showed the horses TCO2 level at 32.6. However, the University testing does establish that the administration of Green Amino will substantially increase the TCO2 level. [16] Mr Dixon not only told the Stewards, but also the Tribunal in his statement, that before he gave the supplement to Mamanuca he read the packet and the directions for usage. We will say something about the packet. The depiction on the front of the packet shows two horses galloping with mounted jockeys, apparently representing that the powder is suitable for race horses. The contents of the powder are noted on the front which include such things as sodium, potassium, magnesium, aspirate, potassium, chloride etc. The directions for use tell the user to “mix one sachet in two-three litres of luke warm water … administer as a drench approximately 12 hours prior to strenuous exercise. May be added to the feed, 50g twice daily for three days prior to strenuous exercise”. The reference to strenuous exercise by reference to the front of the packet would include races. The reference to drench is application with a nasogastric tube. [17] During the course of the Stewards inquiry, Dr Young, the vet from the Racing Science Centre, said there was nothing on the label which would alert Mr Dixon to the fact that the contents may have included alkalising agents which would cause the TCO2 level to rise. This was also confirmed by Dr Hill. Dr van Eps from the University, said in his report that he had carefully examined the label on the product and there is no ingredient listed there that would normally be associated with alkalising agents affecting horses. [18] Inquiry was made with Nature Vet about the contents and effect of Green Amino but Nature Vet declined to provide any information on the basis that it was their “intellectual property”. This attitude, in view of the marketing of the product to trainers when it could have the effect of increasing TCO2 levels, without warning, is, in our view, irresponsible. Is Mr Dixon’s conduct blameworthy [19] The evidence from Dr van Eps raises the type of evidence that was referred to by his Honour Judge McGill in Wallace v Queensland Racing4 where he said:- “Cases where the trainer was able to show a specific explanation which did not involve any blameworthiness on his part are really examples of the situation where the trainer has for the purpose of penalty been able to show 4 [2007] QDC 168. -- 5 of 8 -- 6 a mitigating circumstance. It may well be appropriate for such cases to be treated more leniently than what might be described as the ordinary case, where there is no explanation for the elevated reading, and therefore no indication as to whether or not there is any personal blame worthiness on the part of the owner.” [20] We accept the evidence of Mr Dixon that when deciding to give the horse the supplement, he read the contents and made a decision that it was safe to do so and that it did not contain any prohibited substance. [21] Racing Queensland point out in their submissions that giving the supplement to the horse without obtaining veterinary advice was blameworthy because he could not be sure of the affect it would have on the horse. The answer is that Nature Vet is a well known supplier of horse supplements and it was reasonable for Mr Dixon to look at the label, consider the ingredients, and reasonably conclude given his knowledge and experience that the horse would not come to harm if given the supplement. This is also consistent with the evidence given by the vets at the inquiry. This is also an answer to Racing Queensland’s submission that extra care should have been taken because Mr Dixon had not used the substance before and was given it without professional advice, and by giving a second packet, exceeded the recommendations on the packet. This submission might have some weight if it wasn’t for the evidence of Mr Dixon as to the reason he gave the supplement to the horse, his actions in considering the contents of the label and his decision to administer it. There is no basis upon which it could be asserted that by doing so he was acting in a cavalier manner and prepared to accept the consequences, whatever they might have been. [22] This case is also on all fours with the Waterhouse case where the Racing New South Wales Appeal Panel accepted that Ms Waterhouse was not blameworthy when cocaine was detected in a sample taken from one of her horses. The explanation for cocaine in the sample was as a result of a stablehand using the substance in the stable without her knowledge. The Appeal Panel although finding the presentation charge made out, did not in the exercise of its discretion impose a penalty. Sealing of the packets [23] The Collection Procedures – Version 4 – effective from 1 June 2012 set out the collection procedures for blood samples in appendix 3. In respect of blood samples, step 6 requires that the sealed 3 pocket security pouch be placed inside the plastic bag that the sample bottles and associated equipment were delivered in. [24] This requirement is in stark contrast to the earlier Collection Procedures, Version 3. These procedures provided that the 3 pocket security pouch be placed in the plastic bag and that the top of the plastic bag was to be stapled or sealed with a heat sealer. The deletion of the reference to stapling or sealing of the top of the plastic bag in Version 4 is not only -- 6 of 8 -- 7 referred to in the collection of blood it has been deleted in a number of other places in new Collection Procedures. [25] The only reference to sealing is in Appendix 9 which provides an “example” of a “Record of Custody and Dispatch Document”. It refers to the security bag being “sealed with an intact red security number”. However the difficulty for the applicant is that it does not refer specifically to the collections procedures but the chain of custody. The fact that stapling and sealing has been removed, we can reasonably assume purposely, from Version 4 would lead us to conclude that the absence of it does not vitiate the collection process. We therefore find there has been compliance with the collection procedures. Absorbent Pad [26] The absorbent pad is only required to be used in the packaging if there is to be transportation by air. Its obvious purpose is to absorb spillage if the sample is damaged. Further Step 5 clearly states it is only a packaging requirement. The absence of the pad does not in any way compromise the integrity of the analysis of the sample, even if there is leakage. Therefore, there has been substantial compliance with the collection procedures.5 [27] Having said that, it is always desirable to comply with the collection procedures to the letter to avoid contests such as these. Decision [28] Mr Dixon presented a horse for competition at a race on 8 June 2012. The pre race blood sample showed the presence of a prohibited substance in excess of the permitted level. After an inquiry the Stewards disqualified Mr Dixon from holding a trainers licence for 6 months. [29] Subsequent investigation revealed that the probable explanation for the excess level was the administration of a supplement Green Amino. There was no indication on the packaging that this substance would be likely to raise the TCO2 level in the animal. [30] We have been directed to recent decisions of this Tribunal where statements have been made about the need for consistency in penalty for this type of presentation charge.6 While consistency is desirable, it is trite to say each case must be considered on its individual merits. In the cases referred to there was either an admission of the administration of carbon dioxide or no explanation at all for the increased level. Here there is a cogent and probative explanation, supported by independent evidence as to the increased level. That evidence cannot be ignored and to do so would result in an injustice and be against established principle.7 5 Racing Act 2002, ss 143 and 352A. 6 Abbott v Racing Queensland Ltd [2012] QCAT 230; Leitenberger v Racing Queensland Ltd [2012] QCAT 248 and Lawler v Racing Queensland Ltd [2012] QCAT 255. 7 Wallace v Queensland Racing [2007] QDC 168. -- 7 of 8 -- 8 [31] Because we have come to the view that there is no personal blameworthiness on the part of the applicant, and in reliance on the personal references provided, the decision of the Tribunal is that the decision of Racing Queensland be set aside and instead no penalty is imposed on the applicant. -- 8 of 8 --