Appeal RIU v PJ Scaife – Decision of Appeals Tribunal as to Costs
ID: JCA12023
Decision:
BEFORE THE APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN THOMAS RODNEY CARMICHAEL, Chief Racing Investigator for the Racing Integrity Unit (RIU)
Appellant
AND PETER JOHN SCAIFE of Foxton, Licensed Public Trainer
Respondent
Appeals Tribunal: Prof G Hall, Chairman - Mr K Hales, Appeals Tribunal Member
Appearing: Mr C Lange for the appellant, Ms M Thomas for the respondent
Decision: 18 October 2012
DECISION OF APPEALS TRIBUNAL AS TO COSTS
[1] In our substantive decision of 25 September last, dismissing the appeal, we required the parties to file written submissions as to costs. We have now received these.
[2] Rule 1207(3) of the Rules of Harness Racing provides as follows:
The Appeals Tribunal may order that all or any of the costs and expenses of any party to the appeal, any other person granted permission to be heard at the hearing by direction of the Chairman of the Appeals Tribunal, HRNZ and/or any employee or officer thereof, the Judicial Control Authority and the Appeals Tribunal be paid by such person or body as it thinks fit….
[3] The respondent seeks full costs ($1395) on the basis that the appeal lacked merit, was a “test case” and was unsuccessful on the grounds advanced.
[4] Ms Thomas drew our attention to Be v RIU (2012) where an award to the respondent was 60% of the costs of HRNZ and 55% of the costs of the JCA. In that case the Tribunal said that the appeal lacked merit and it also noted the parties were required to incur costs due to questions raised by the Tribunal itself. She emphasised the latter was not a consideration in this case.
[5] The appellant submits that the appeal was not without merit in that we found the penalty to be at the bottom end of the range legitimately open to the Committee and that we cautioned against the approach that fines are the norm. He noted that in Bu v RIU (2011) it was accepted that there is no presumption under the rule with respect to granting or failing to grant costs and that a relevant consideration is that a prosecutor is exercising a statutory or public function, with the consequence proceedings are brought in the wider public interest. He submitted that costs should be awarded at a level of no more than $500.
[6] We have an unfettered discretion to award costs. We have been guided by the decisions in Bu, J (2011) and Be. In the last case it was said: “The discretion to award costs under the Rule, is on the face of it, unqualified with no presumption either way, but is to be exercised on a principled basis.”
[7] We endorse the observations of the Tribunal in Bu (at 3.1 and 3.6) that:
The RIU is a creature of statute. It has an obligation to ensure that the Rules of Racing (whether Thoroughbred, Harness or Greyhound racing) are upheld. It is a disciplinary body expressly created to ensure that industry rules are obeyed. It is important that those rules be obeyed for the protection of the general public who interest themselves in racing and in order to maintain confidence in the conduct of the racing industry….
[I]t is important to examine the approach that has hitherto been taken under the Rules of Harness Racing. Our research has established that the practice has generally been to award costs to a party who has successfully defended charges laid under the rules. Notwithstanding the cautionary words of Devlin LJ [in Berry v British Transport Commission [1962] 1 QB 306] that “a prosecutor brings proceedings in the public interest and should be treated more tenderly” we can find no evidence that costs awards made in the past have acted as some sort of disincentive or dis-encouragement.
[8] We believe the respondent’s submission that the appeal lacked merit to be too harsh. The appellant is correct when he states that we found the penalty to be at the bottom end of the available range and the reference by the Committee to fines being the “norm” to be in error. That said, the principal ground of the appeal, that the Committee had erred in that it was not prepared to make a finding of administration, in the absence of evidence of administration, was not successful.
[9] The fact that the parties agreed to the appeal being “conducted on the papers” is also relevant to the quantum of the award.
[10] Approaching the exercise of our discretion in the manner outlined, we believe the RIU should be required to meet approximately 40% of the costs of the respondent and of the JCA, which we round off at $600 for each.
[11] The appellant is to pay costs to Mr Scaife in the sum of $600.
[12] The appellant is to pay costs to the JCA in the sum of $600.
[13] Orders are made accordingly in terms of r 1207(3).
[14] Finally, we refer to paragraphs [19] and [20] of the appellant’s submissions. We do not believe a consideration of these matters is appropriate or necessary when we are determining an application for costs. We would state, however, that we obtained substantial assistance from the comprehensive written submissions filed by both parties with respect to the appeal.
Penalty:
N/A
Appeal Decision: b90fba5e88135918fe92911c03977056
Decision Date: 04/10/2012
Publish Date: 04/10/2012
JCA Decision Fields (raw)
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hearing_title: Appeal RIU v PJ Scaife - Decision of Appeals Tribunal as to Costs
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Decision:
BEFORE THE APPEALS TRIBUNAL OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
IN THE MATTER of the New Zealand Rules of Harness Racing
BETWEEN THOMAS RODNEY CARMICHAEL, Chief Racing Investigator for the Racing Integrity Unit (RIU)
Appellant
AND PETER JOHN SCAIFE of Foxton, Licensed Public Trainer
Respondent
Appeals Tribunal: Prof G Hall, Chairman - Mr K Hales, Appeals Tribunal Member
Appearing: Mr C Lange for the appellant, Ms M Thomas for the respondent
Decision: 18 October 2012
DECISION OF APPEALS TRIBUNAL AS TO COSTS
[1] In our substantive decision of 25 September last, dismissing the appeal, we required the parties to file written submissions as to costs. We have now received these.
[2] Rule 1207(3) of the Rules of Harness Racing provides as follows:
The Appeals Tribunal may order that all or any of the costs and expenses of any party to the appeal, any other person granted permission to be heard at the hearing by direction of the Chairman of the Appeals Tribunal, HRNZ and/or any employee or officer thereof, the Judicial Control Authority and the Appeals Tribunal be paid by such person or body as it thinks fit….
[3] The respondent seeks full costs ($1395) on the basis that the appeal lacked merit, was a “test case” and was unsuccessful on the grounds advanced.
[4] Ms Thomas drew our attention to Be v RIU (2012) where an award to the respondent was 60% of the costs of HRNZ and 55% of the costs of the JCA. In that case the Tribunal said that the appeal lacked merit and it also noted the parties were required to incur costs due to questions raised by the Tribunal itself. She emphasised the latter was not a consideration in this case.
[5] The appellant submits that the appeal was not without merit in that we found the penalty to be at the bottom end of the range legitimately open to the Committee and that we cautioned against the approach that fines are the norm. He noted that in Bu v RIU (2011) it was accepted that there is no presumption under the rule with respect to granting or failing to grant costs and that a relevant consideration is that a prosecutor is exercising a statutory or public function, with the consequence proceedings are brought in the wider public interest. He submitted that costs should be awarded at a level of no more than $500.
[6] We have an unfettered discretion to award costs. We have been guided by the decisions in Bu, J (2011) and Be. In the last case it was said: “The discretion to award costs under the Rule, is on the face of it, unqualified with no presumption either way, but is to be exercised on a principled basis.”
[7] We endorse the observations of the Tribunal in Bu (at 3.1 and 3.6) that:
The RIU is a creature of statute. It has an obligation to ensure that the Rules of Racing (whether Thoroughbred, Harness or Greyhound racing) are upheld. It is a disciplinary body expressly created to ensure that industry rules are obeyed. It is important that those rules be obeyed for the protection of the general public who interest themselves in racing and in order to maintain confidence in the conduct of the racing industry….
[I]t is important to examine the approach that has hitherto been taken under the Rules of Harness Racing. Our research has established that the practice has generally been to award costs to a party who has successfully defended charges laid under the rules. Notwithstanding the cautionary words of Devlin LJ [in Berry v British Transport Commission [1962] 1 QB 306] that “a prosecutor brings proceedings in the public interest and should be treated more tenderly” we can find no evidence that costs awards made in the past have acted as some sort of disincentive or dis-encouragement.
[8] We believe the respondent’s submission that the appeal lacked merit to be too harsh. The appellant is correct when he states that we found the penalty to be at the bottom end of the available range and the reference by the Committee to fines being the “norm” to be in error. That said, the principal ground of the appeal, that the Committee had erred in that it was not prepared to make a finding of administration, in the absence of evidence of administration, was not successful.
[9] The fact that the parties agreed to the appeal being “conducted on the papers” is also relevant to the quantum of the award.
[10] Approaching the exercise of our discretion in the manner outlined, we believe the RIU should be required to meet approximately 40% of the costs of the respondent and of the JCA, which we round off at $600 for each.
[11] The appellant is to pay costs to Mr Scaife in the sum of $600.
[12] The appellant is to pay costs to the JCA in the sum of $600.
[13] Orders are made accordingly in terms of r 1207(3).
[14] Finally, we refer to paragraphs [19] and [20] of the appellant’s submissions. We do not believe a consideration of these matters is appropriate or necessary when we are determining an application for costs. We would state, however, that we obtained substantial assistance from the comprehensive written submissions filed by both parties with respect to the appeal.
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