Taylor v Racing Queensland Limited (2)

[2011] QCAT 577

CITATION: Taylor and Anor v Racing Queensland Limited (No 2) [2011] QCAT 577

PARTIES:	Mr Darren Taylor Mrs Kaye Taylor
v
Racing Queensland Limited

APPLICATION NUMBER:   OCR137-11 / OCR138-11

MATTER TYPE: Occupational regulation matters

HEARING DATE: 6 September 2011

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Acting Senior Member
James Allen, Member

DELIVERED ON: 3 October 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

1.    Racing Queensland’s decisions on penalty dated 1 July 2011 are set aside and the following penalties substituted:

(a) Mrs Kaye Taylor is suspended from racing for a period of three months.
(b) Mr Darren Taylor is suspended from racing for a period of four months.

CATCHWORDS: RACING – GREYHOUNDS – penalty

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Mr Taylor, and his mother, Mrs Taylor, own and train greyhounds.  They both had winners in the Rockhampton race meeting on 26 February 2011.  The urine samples for both dogs were sent to Brisbane for testing.  In both cases, Sample A tested positive to boldenone and its metabolic.  Boldenone is a prohibited substance.

2. At a hearing on 1 July 2011, the Stewards found both owners guilty of a breach of Greyhounds Australasia Rule 83(2)(a)(d):

   The owner, trainer or person in charge of a greyhound nominated to compete in an event shall present the greyhound free of prohibited substance.

3. Mr Taylor was disqualified for 4 months.  Mrs Taylor was disqualified for 3 months.  This is an appeal against penalty.

4. Racing Queensland submits that:

a)In Queensland, there have been two cases of animals testing positive to Boldenone, both of which led to the imposition of a suspension; one of three months plus a fine and the other of six months.

b)Those two matters, in themselves, do not create a range of penalties.

c)There are two matters in New South Wales concerning Boldenone.  The penalties imposed were a nine-month suspension and a six-month disqualification.

d)As part of Racing Queensland’s commitment to drug free racing, and to ensure greater consistency nationally, a period of disqualification is appropriate.

e)There is no explanation for the elevated readings that would operate as mitigation of penalty in line with the principles of Wallace v Queensland Racing[1].

[1] [2007] QDC 168.

1. The Taylors point to their good record within the industry and ask the tribunal to consider the Queensland precedents.  They say that Racing Queensland has offered no explanation as to why the Stewards imposed a harsher penalty than previously applied in this State.

2. This is not the first case considered by the tribunal where, without explanation, the penalty imposed by the Stewards has been significantly greater than antecedents suggest would be appropriate and it will probably not be the last.  As the tribunal has already explained[2] there is simply no room for the Stewards arbitrarily to bring Queensland penalties into line with other States without notice to the industry.

   [2]        Wiggins v Racing Queensland [2011] QCAT 370.

3. Even then, a decision to change the range of penalties should be supported by a review of the deterrent effect of the penalties, the need for an increase in penalty, the reason for any disparity between the States and whether this is having an adverse effect on the industry in Queensland.  That is not to say that there is no good reason to increase the penalties, it is simply that the tribunal has not been favoured with evidence of that reasoning.

4. On the other hand, as Racing Queensland correctly points out, the Taylors have not explained why Boldenone was present in their dogs.  While their previous good conduct in the industry may be taken into account, the Taylors have not been able to show a specific explanation for the presence of the drug which might have operated, as Judge McGill suggested[3], to mitigate the penalty.

   [3] Supra at [69].

5. Previous penalties in Queensland for presenting an animal with Boldenone involve suspension, not disqualification.  There is good reason to differentiate between Mrs Taylor’s penalty and that imposed on Mr Taylor, given their different levels of involvement in the industry.  The penalties should be set aside and the following penalties substituted:

a)Mrs Kaye Taylor is suspended from racing for a period of three months.

b)Mr Darren Taylor is suspended from racing for a period of four months.