Manzelmann v Racing Queensland Limited [2013] QCAT 45

[1] Mr Manzelmann is a licensed harness racing trainer. On 20 October 2012 a horse that he trained, Something Slippery, competed in race 3 at Albion Park. Subsequent to the race, a blood sample was taken from Something Slippery and upon analysis, it showed that the horse had a total plasma carbon dioxide (TCO2) concentration of 38.8mmol/L. A concentration of TCO2 of more than 36mmol/L is deemed a prohibited substance within Australian Harness Racing Rule 188A(1)(b) and 2(a). The second sample was also tested by Racing Analytical Services Ltd. This sample revealed a concentration of 37.7mmol/L.

[2] As a result Stewards held an inquiry on 8 November 2012 and charged Mr Manzelmann with a breach of rule 190(1). The rule provides that a horse shall be presented for a race free of a prohibited substance. Stewards were satisfied that Mr Manzelmann was in breach of the rule and he was disqualified from holding a trainer's license for 8 months.

[3] Mr Manzelmann has sought a review of that decision in the Tribunal.

[4] The Tribunal's function on an application to review an administrative decision is to produce the correct and preferable decision by way of a fresh hearing on the merits.[1] There is no presumption that the original decision is correct nor is it necessary to identify any error in the original decision making process. This review is limited to the penalty that should be imposed on Mr Manzelmann because he now accepts that he has breached rule 190(1), which is of course a charge involving strict liability.

[5] Mr Manzelmann explained to the Stewards that prior to this race Something Slippery had been having, for some time, trouble with muscle fatigue. On the advice of his vet, Peter Hill, Mr Manzelmann was told to treat the horse with Neutradex, 60mls given orally "over the tongue". In addition, he was given satchels of salines to also help to control muscle fatigue. He said he had been giving the horse this treatment prior to race day. On the day of the race, the horse was jogged lightly and given a dose of Neutradex over the tongue.[2] At lunchtime he was given a small feed with green amino in the feed.

[6] Even though Neutradex contains an alkalising agent, Mr Manzelmann was confident that this would not elevate the TCO2 level beyond the prohibited level of 36mmol/L. In fact Dr Young, a vet from the Racing Science Centre, confirmed that Neutradex would only slightly elevate the TCO2 level and nowhere near as much as dosing the horse with bicarbonate. It is common knowledge that the horse's natural TCO2 level is somewhere around 30mmol/L on average but it also depends on the horse's particular metabolism.

[7] The treatment regime of the horse that day, and the days prior to that Saturday was not likely to give rise to any reasonable apprehension that the horse's TCO2 level would rise significantly.

[8] Just prior to the race Dr Greg Baldwin, the official veterinary surgeon at the races that night, used an i-Stat machine to get an indicative reading of the horse's TCO2 level. The i-Stat machine is not an official testing machine and the results cannot be used to substantiate a charge of presenting a horse with a prohibited substance. It is used in an attempt to curb the increased prevalence of TCO2 in harness racing horses. The i-Stat provides a quick and simple means of determining the indicative TCO2 level and whether further testing should take place. The test produced a result of 36mmol/L.

[9] At the time Dr Baldwin did the test, Mr Manzelmann was not present so Dr Baldwin told his daughter Michaela Manzelmann, who in fact is a licensed stable hand working for her father, that the horse would be required for a post race blood sample.

[10] The horse raced, did not place, in fact came 8th and was not claimed. After taking the gear off the horse and washing it down, Mr Manzelmann gave the horse a drink containing electrolytes and alkalising agents. After the horse had consumed the drink Mr Manzelmann was then told that the horse would be required for a blood sample and it should remain at the track for another 3 hours. Unfortunately Michaela Manzelmann did not tell her father that the horse was required for a post race swab before he gave it the drink. It is not disputed at this review hearing that Mr Manzelmann rehydrated the horse after the race in the absence of any knowledge that it was required for a further test.

[11] Later that evening the blood sample was taken and when tested the results were that the TCO2s were elevated beyond the accepted level. Although the prescribed level is 36mmol/L the authorities allow a tolerance of 1mmol/L meaning the Stewards will not take action unless the level exceeds 37mmol/L.

[12] Mr Manzelmann explained that because the horse did not place in the race and he had no knowledge that the horse was required for a post race swab, he believed he was entitled to give the horse electrolyte treatment for rehydration. Mr Manzelmann explained that at Albion Park this is his usual practice, as it is with other trainers.

[13] Although Mr Manzelmann contested the charge at the Stewards Inquiry he has since accepted that he has breached the rule but considers the penalty imposed is excessive having regard to all the circumstances.

[14] Although AHR190(1) provides that a horse shall be presented for a race free of a prohibited substance, sub rule 5 also defines what is meant by "presented for a race". The phrase means during the period commencing at 8am on the day of the race for which the horse is nominated and ends when the horse is removed from the racecourse after the running of the race. Clearly Mr Manzelmann falls within the ambit of rule 190.

[15] The question for determination by this Tribunal by way of a fresh hearing is the appropriate penalty that should be imposed for this presentation charge. The inference Mr Manzelmann asks this Tribunal to draw from the events that occurred that evening, is that having regard to the indicative test taken before the horse raced, it is unlikely the horse would have reached the threshold amount of 37mmol/L had it not been for the alkalising agents in the drink given to the horse subsequent to the race.

[16] Racing Queensland correctly submits that it, and this Tribunal, has sought to produce consistency in penalty, particularly with respect to the prohibited substance of TCO2. In Abbott v Racing Queensland [2012] QCAT 230 the Tribunal said that as a matter of fairness and natural justice the Tribunal should strive to achieve the greatest degree of consistency as is possible. It is accepted that without any explanation 6 months' disqualification the "norm" for a first offence involving TCO2 is 6 months. For a second offence, the penalty is between 8-10 months.

[17] Although consistency is ideal, each case must still be considered having regard to the particular circumstances.[3] The Tribunal must also have regard to what was said in Wallace v Racing Queensland[4] when considering the level of blameworthiness on the part of the trainer. Importantly here if the trainer can provide a specific explanation which did not involve any blameworthiness on the part of the trainer, this would amount to a mitigating circumstance where the penalty imposed should be more lenient than in the ordinary case.

[18] Mr Manzelmann accepts that he has to bear some blame for the high reading in Something Slippery. He acknowledges that administering an alkalising agent while at the race track puts him in breach of the presentation rule. However, it seems he acted reasonably in hydrating the horse after the race in circumstances where he did not have any reasonable expectation another swab would be required. He candidly acknowledges that he is the person in charge of the horse and must bear responsibility for Michaela Manzelmann's failure to advise him that Dr Baldwin wanted to take the more blood after the race. The reason for the delay is so that the horse's metabolism can return to normal after the exertion of a race. To that extent he accepts that he must undergo a period of disqualification.

[19] This case like many others involves other discretionary factors that must be considered. Although he has accepted he has breached the rule and in effect pleaded guilty before this Tribunal, this of itself does not have a significant mitigating factor because it is an offence of strict liability.

[20] Mr Manzelmann manages a large training complex with two tracks, stables, day yards and spelling paddocks and an equine swimming pool. He had 40 horses in work at the time of his disqualification. He also had a number of employees. His main source of income is from managing the complex and from the spelling and training of horses. He also has an income from breeding exotic birds.

[21] He supports his family from these activities. He has five children all of whom attend local schools except for his eldest daughter who works.

[22] He has had one previous presentation charge in 2004 but this did not involve TCO2. There have been no breaches of the harness racing rules since then and this is matter that must be taken into account.

[23] The circumstances of this case fall within the first category of case referred to in Wallace v Queensland Racing[5] in that there is evidence of a specific mitigating circumstance which goes to the level of blameworthiness that should be attributed to his conduct. As was said in Wallace where there is an explanation that does not involve any blameworthiness it may be appropriate to treat those cases more leniently. Here there is an explanation and although Mr Manzelmann does accept some blameworthiness on his part, his explanation and the evidence would suggest some leniency should be afforded to him when deciding penalty.

[24] Racing Queensland say any leniency as a result of these circumstances should be rejected because of his treatment of the horse. It is critical of the dosage of Baladene given to Something Slippery because it brought into question the welfare of the horse. Dr Young gave evidence that the dose was 10 times that recommended for this product. Mr Manzelmann poured 1 litre of Baladene into a 5 litre bucket of water whereas the recommended dose was 75ml/L. Dr Young did not say what effect this would have on the horse other than to say it was "a concern" because it was much higher than the recommended dose.[6] This conduct, it is submitted, flies in the face of s 4 of the Racing Act 2002 which sets out as one of the purposes of the Act which is to safeguard the welfare of all animals involved in the racing.

[25] The difficulty with that argument is that Mr Manzelmann is an experienced trainer and there is no evidence that the practice he adopted that night, and previously, had any adverse impact on the welfare of the animal. We are certainly not endorsing the administration of substances to animals in excess of the recommended dose but in the absence of any evidence as to the effect of this we cannot find that this is a circumstance of aggravation in a presentation charge. If the respondent was critical of this conduct Mr Manzelmann could have been charged with a breach of a rule like rule 218.

[26] We have been referred to a number of cases by both parties[7] involving TCO2. These cases support the contention that for a first offence, without explanation going to blameworthiness, the usual penalty is 6 months' disqualification. For a second offence, 8 months. We approach the penalty here on the basis that this is Mr Manzelmann's first offence firstly, because the previous breach did not involve TCO2 and, secondly, because it occurred a considerable time ago and also having regard to numerous numbers of horses presented for races in this time, it should be given little weight.

[27] Racing Queensland rely on the decision of Cramp[8], a decision of the Victorian Racing Appeals Tribunal. The circumstances of that case are certainly similar to this case. In a pre race test the horse, Saint News, recorded a TCO2 level of 35.2mmol. The horse placed third and after the race it was given "at least two buckets of a mixture of water, molasses and carboline". It was then tested about three hours after the race and returned a TCO2 level of 39mmo/L. The reasons do not set out the penalty imposed by the Stewards but the Tribunal reduced the disqualification to 6 months. Having regard to the circumstances of that case where only the year before Mr Cramp was breached for a similar offence and fined $8,000, we consider the previous breach distinguishes Mr Cramp's case from that under consideration here. Mr Manzelmann did not have a recent previous offence of a similar nature and his horse did not place although this is still a useful guide to the penalty that should be imposed.

[28] We are of the view that having regard to the circumstances of this case, and treating it as a first offence a reduction in the usual penalty is appropriate. We consider an appropriate penalty is three months' disqualification. Therefore, the decision of Racing Queensland Ltd will be set aside and instead Mr Manzelmann will be disqualified from holding a trainers licence for three months.

[29] We have been asked to impose a condition on the disqualification that will permit Mr Manzelmann to continue to reside at the property with the training facilities. The principle reason for this is the need to care for and maintain the exotic bird breeding business he and his partner undertake on the property. The imposition of a condition to permit this is opposed.

[30] We are told this business is labour intensive and generates a reasonable income for Mr Manzelmann and his family. Because he will not be able to engage in training activities it is important he continue to maintain an income stream. A limited stay of Racing Queensland's decision was granted permitting Mr Manzelmann to continue to reside at the property. We see no reason why the status quo should not continue and the order of disqualification will be subject to that condition.

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (21 paragraphs)

Manzelmann v Racing Queensland Limited [2013] QCAT 45 (23 January 2013)

Parties

Legislation Cited (1)