QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Sitek v Queensland Racing Integrity Commission [2020] QCAT 53	
PARTIES:	GEORGE SITEK	
	(applicant)	
	v	
	Queensland Racing Integrity Commission	
	(respondent)	
APPLICATION NO/S:	OCR323-18	
MATTER TYPE:	Occupational regulation matters	
DELIVERED ON:	17 February 2020	
HEARING DATE:	4 February 2020	
HEARD AT:	Brisbane	
DECISION OF:	Member King-Scott	
ORDERS:	1.	The decision of penalty imposed be set aside.
2.	The Applicant is disqualified for a period of 6 months.
3.	The period of disqualification to commence from 1 March 2020.	
CATCHWORDS:	ASSOCIATIONS AND CLUBS – RACING CLUBS AND ASSOCIATIONS – where administration of prohibited substance – non-licensed persons attending horse – where containers not clearly labelled – where consideration of factors related to penalty – whether appropriate penalty includes disqualification or suspension
Australian Rules of Racing
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Racing Integrity Act 2016 (Qld)
Abbott v Racing Queensland Limited [2012] QCAT 230
Briginshaw v Briginshaw (1938) 60 CLR 336
Facoory v Queensland Racing Ltd [2010] QCAT 120
Kehl v Board of Professional Engineers of Qld [2010] QCATA 58
Manzelmann v Racing Queensland Limited [2013] QCAT 45
Queensland Racing Integrity Commission v Belford [2017] QCATA 42
RVL Stewards v Peter Moody (Unreported, Racing Appeals and Disciplinary Board, 17 March 2016)	
APPEARANCES & REPRESENTATION:	

Applicant:	
A Fronis of Counsel 	

Respondent:	
A Freeman of Counsel, instructed by Queensland Racing Integrity Commission	

REASONS FOR DECISION
[1]	The Applicant is a licensed trainer with stables at Darra.  He was the trainer of a gelding named Choppa. It was entered in the 6th race at the Sunshine Coast Turf Club’s meeting on 1 September 2018. 
[2]	The horse underwent a random blood test before the race. When the sample was tested it revealed a total plasma carbon dioxide (TCO2) concentration of greater than 39 millimoles per litre in plasma in its system, which was above the prescribed limit. In fact, that was the limit of testing. In other words, the horse could have had a higher level but because the test limit was 39 mMol/litre, the actual concentration could not be determined. The prescribed limit under Rule 178C(1)(a) of the Australian Rules of Racing was 36 mMol/litre.
[3]	Choppa came last in the race.
[4]	The Applicant was charged, under Rule 175(h)(ii) of the Australian Rules of Racing, that as a licensed trainer he did administer a prohibited substance, namely TCO2, above the permitted threshold under Rule 178C(1)(a) of the Australian Rules of Racing which was detected in a pre-race blood sample taken from Choppa prior to its running in race 6 at the Sunshine Coast  on 1 September 2018. Rule 175(h)(ii) provides:
AR175. The Principal Racing Authority (or Stewards exercising powers delegated to them) may penalise;
(h) Any person who administers, or causes to be administered, to a horse any 	prohibited substance-
	…
	(ii)	which is detected in any sample taken from such horse prior to or 		following the running of any race.
[5]	The Applicant pleaded not guilty. The Stewards found the Applicant guilty and imposed a penalty of 12 months’ disqualification. He sought an internal review of that decision which affirmed the Stewards’ decision of guilt and penalty. He now seeks a review by this Tribunal. 
[6]	The Tribunal derives its jurisdiction to conduct an external review of the decision under s 246 of the Racing Integrity Act 2016 (Qld).
[7]	The Tribunal’s function on such a review application is to produce the correct and preferable decision by way of a fresh hearing on the merits. Because this is an administrative review proceeding, the Tribunal’s function is to review the decision, not the process by which it was arrived at nor the reasons given for making it. Accordingly, the Tribunal is not required to identify an error in either the process or the reasoning that led to the decision being made. There is no presumption the original decision is correct.
[8]	In his defence before the Stewards and before the Tribunal, the Applicant gave evidence that he did not administer anything to the horse but provided as an explanation that he had asked a friend, Jennifer Rose, who was in attendance at the property to add molasses to the horse’s water. He believes that she, mistakenly, poured 2 litres of Nutralene Plus into the horse’s water bucket. Ms Rose provided a signed statement to that effect but was not available for cross-examination. I should interpolate here that Nutralene Plus contains sodium citrate which is an alkalinising agent.
[9]	Dr Eric Young, an experienced veterinary surgeon and the Principal Veterinary Officer in the Integrity Investigations Team of the Queensland Racing Integrity Commission (QRIC), gave evidence of the effects of such a quantity of Nutralene Plus on the horse’s performance. In essence he made the following points:
(a)	It is unlikely that the horse would have drunk such a quantity of Nutralene Plus in its concentrated form because of the taste. However, I infer from his evidence that the same quantity diluted in water could lead to the same result but that would require the horse to drink a larger quantity;
(b)	The usual dose of Nutralene Plus is 25 to 50 ml, usually spread on the oats or administered by syringe on the tongue;
(c)	Its effect is to increase the alkalinity of the blood which would buffer the build-up of lactic acid and delay the onset of fatigue. Essentially, its effect is performance enhancing;
(d)	A dose of the magnitude of Nutralene Plus as speculated by the Applicant could cause health problems for the horse and affect performance; and 
(e)	The inference to be drawn from Dr Young’s evidence is that Nutralene Plus was intentionally administered. 
[10]	There is no direct evidence that the Applicant intentionally administered the Nutralene Plus. Ms Rose was not cross-examined. Her unavailability was explained by the Applicant as due to a breakdown of their relationship and her wish not to be involved further in the matter. Of course, an alternative inference is that she no longer adhered to her evidence.
[11]	It was Dr Young’s belief that the horse was administered the Nutralene Plus on the morning of the race and he gave evidence about the practice of giving a horse a ‘milkshake’ by administering the alkaline agent by naso-intubation. There is no evidence that the Applicant administered the Nutralene Plus in that manner. Further, a statement was provided by a Ms Anne Patterson who accompanied the Applicant and the horse to the meeting. She said that they did not stop in the course of the journey. She was not required for cross-examination. 
[12]	I am not prepared to make a finding on the Briginshaw v Briginshaw standard that the Nutralene Plus was intentionally administered.
[13]	However, such a finding does not exculpate the Applicant. As a licensed trainer the Applicant has responsibilities in the manner in which he administers his stable. 
[14]	The Applicant gave evidence that he administered 20 ml of Nutralene Plus to Choppa on a daily basis but not on the day of the race. He kept it in a white, five-litre container that the product was supplied in. It was appropriately labelled.
[15]	There are onerous requirements on a trainer to be licensed, to lodge stable returns, to keep treatment records, etc. There is also a requirement of the Commission that persons who work in stables, including stable hands, be appropriately licensed. 
[16]	Ms Rose, who has been referred to was not a licensed stable hand. The Applicant freely acknowledges that she knew nothing about horses or work in stables. She was present because he was fixing her car. He acknowledges that he was in a hurry and asked Ms Rose to fill the horse’s water bucket with some molasses water which he had stored in an old five-litre Nutralene Plus container. It was the same sort of container as the actual Nutralene Plus container. It was not properly labelled, or labelled at all, save for the old Nutralene Plus label. 
[17]	The Applicant said he directed Ms Rose to the container and the other container was some distance away. A further complication was that Ms Rose did not speak English well, and presumably, did not read English. In any event, I am of the opinion that the Applicant’s level of administration and management of his stable fell well short of what is expected of a licensed trainer under the Australian Rules of Racing. The occurrence of this incident in the manner described by the Applicant shows a poor level of care.
[18]	It is pertinent to refer to the decision of RVL Stewards v Peter Moody where the Board chaired by Judge J Bowman said:
As the licensed trainer, Mr Moody was and is responsible for the horses he trains, including Lidari. For a number of reasons, which are discussed further below, we find that Mr Moody’s stable operations were far from satisfactory.
…	
Regardless of the delegation of various tasks and responsibilities within the stable, Lidari was under the care and control of Mr Moody and the buck stops with him. At the very least, Mr Moody failed to prevent the prohibited substance finding its way into Lidari as a result of something occurring within his stables.
…
The Board is comfortably satisfied that Mr Moody caused to be administered to Lidari a prohibited substance which was detected in a sample taken from the horse following the running of the Turnbull Stakes.
[19]	The above comments of the Racing Appeals and Disciplinary Board are apposite to the present case.
[20]	The objects of the Racing Integrity Act 2016 (Qld) include the maintenance of public confidence in racing, ensuring the integrity of all persons involved with racing and safeguarding the welfare of animals involved in racing.
[21]	In Abbott v Racing Queensland Limited, the Tribunal accepted that for a first offence the ‘norm’ was six months’ disqualification. That was a ‘presentation case’ under Rule 190 of the Australian Harness Racing Rules, the prohibited substance being TCO2. The Tribunal also noted that the ‘norm’ for a second offence was eight to ten months’ disqualification.
[22]	The ‘six month norm’ was also accepted to be the case in Manzelmann v Racing Queensland Limited. These decisions were considered with approval by President D G Thomas J (as he then was) in Queensland Racing Integrity Commission v Belford. Of course, the above cases were ‘presentation’ cases, but the principles upon which a penalty is imposed should not differ.
[23]	An aggravating factor in this case is the very high level of TCO2 detected, which it was not possible to determine other than it exceeded the measurement limits of the analysis. Dr Young testified that such a high level would have a significant impact on the horse’s health and welfare. He was of the opinion that it could cause gut disturbance, scouring and colic. Fortunately, the horse appeared to recover.
[24]	The Commission has submitted that the Applicant has shown no insight as to the seriousness of his behaviour. Further, it submitted that an offence of administering a prohibited substance is more serious than a presentation offence under Rule 178. Facoory v Queensland Racing Ltd is cited as authority for that proposition Ordinarily I would agree, but in this case, based on my findings, the occurrence of the prohibited substance has resulted not from an intentional administration but from the negligence of the Applicant. That also happened to be the case in Facoory which caused the Tribunal there, to distinguish it from the more serious case.. 
[25]	Further, the Commission relies upon the Applicant’s plea of not guilty as an aggravating factor that I should take into account. However, as submitted by his counsel Mr Fronis, if he had not contested the charge he would have been found guilty of directly and intentionally administering the substance as opposed to causing it to be administered as a result of his negligence. 
[26]	Mitigating factors are:
(a)	the Applicant’s age; 
(b)	the fact that he is a one-horse trainer in a modest training establishment. I infer from these circumstances that training is a hobby as he lives on a carer’s pension caring for his brother. I suspect that financial hardship arising from a period of disqualification is not a relevant consideration; 
(c)	there was only one horse involved and in only one race; 
(d)	he has no prior disciplinary history, other than an offence in 2002; 
(e)	the circumstances in which the prohibited substance was administered; and 
(f)	the likelihood of reoffending.
[27]	In the decision of Morrisey v Queensland Racing Integrity Commission the Tribunal explained the differences between disqualification and suspension. Member Hoizberger said:
[47]	Firstly, if disqualified Mr Morrisey could not, amongst other things, 		without the consent of the principal racing authority enter any 			racecourse or training track, or training complex, provide any 		service to a thoroughbred racing stable or attend racehorse sales or 		related events.
[48]	Secondly, unlike a suspension, the operation of any disqualification 	cannot be suspended either wholly or in part.
(Citations omitted). 
[28]	Before the Stewards, the Applicant’s submissions in mitigation of penalty mainly concerned the future of the horse Choppa which he described as a very difficult horse and one it would be difficult to place with another trainer. The penalty of 12 months’ disqualification was stayed pending this review. In the meantime, the Applicant has disposed of Choppa and is now training another horse. I do not consider a period of suspension is appropriate in this matter.
[29]	Nevertheless, I do consider that the period of 12 months’ disqualification was manifestly excessive. I make the following orders.
[30]	The Tribunal orders that: 
(a)	The decision of penalty imposed be set aside.
(b)	The Applicant is disqualified for a period of 6 months.
(c)	The period of disqualification to commence from 1 March 2020.