Appeal NZTR v R Collett – 15 December 2010 – Decision dated 9 February 2011

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decisiondate: 09/02/2011

hearing_title: Appeal NZTR v R Collett - 15 December 2010 - Decision dated 9 February 2011

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BEFORE THE APPEALS TRIBUNAL
AT Auckland.

IN THE MATTER OF the New Zealand Rules of Racing

BETWEEN CAMERON GEORGE
Stipendiary Steward, of Wellington.
Appellant

AND RICHARD COLLETT
Trainer, of Pukekohe
Respondent

Appeals Committee: The Hon Sir John Hansen KNZM (Chairman)
Professor Geoffrey Hall (Member)

Appearances: M Colson for Appellant
D Alderslade for Respondent

Date of Hearing: 15 December 2010

Date of Decision: 9 February 2011

DECISION OF APPEALS COMMITTEE

[1] This is an appeal from the decision of the Judicial Committee (Messrs M McKechnie and R McKenzie) dated 8 October 2010. It raises a short but interesting and important point of law.
  

Background
[2] The background facts are extensively covered in the decision of the Committee and the submissions of counsel. We briefly summarise these.
[3] On 26 May 2010, around 6.15 am, two horses trained by Mrs D Jeffcoat were taken for track work. Mrs Jeffcoat rode one horse and Mr Hollis the other. It appears they worked the horses at half pace.
[4] About a third of the way through the work, two horses trained by the respondent and ridden by his daughters improved from behind the horses ridden by Mrs Jeffcoat and Mr Hollis. It is alleged that as a consequence of the way the front horses were being ridden, the Collett sisters had to take evasive action. Mr Collett who was stationed at the crossing, saw this, and was yelling. Mrs Jeffcoat and Mr Hollis continued to work at half pace, completed their work and exited the track.
[5] In the stabling area there was a confrontation between Mr Collett and Mrs Jeffcoat. It appears to be common ground that Mr Collett was the aggressor. There is some dispute of fact as to the exact nature of this confrontation, but the resolution of those facts is irrelevant for present purposes. Suffice to say that Mr Collett was highly upset at what occurred and took exception to it. Mrs Jeffcoat’s evidence was that Mr Collett grabbed her horse by the bridle and yanked it, yelled aggressively at her to get off, and began pushing the horse backwards. She said that Mr Collett attempted to remove the bridle and, in the wash bay, leapt and grabbed at her clothing in the throat area and attempted to physically pull her from the horse. She then alleged that Mr Collett took a swing at her, which missed.
[6] Mr Hollis, it is said, stepped between Mrs Jeffcoat and Mr Collett and was hit near his shoulder by Mr Collett.
[7] Mr Collett denied attempting to grab Mrs Jeffcoat around the throat region, or that he punched Mr Hollis, although he accepted he pushed him away with an open hand. The exchange between Mr Collett and Mrs Jeffcoat continued until Mrs Collett arrived and told Mr Collett to “knock it off”, which seemed to bring the situation to an end.
[8] After the incident, Mrs Jeffcoat telephoned the Chief Racecourse Investigator, Mr John McKenzie. On his advice, Mrs Jeffcoat and her husband went to the police station the next day and filed a complaint.
[9] On 28 May Mr McKenzie phoned Mrs Jeffcoat and told her she had two choices. She could proceed by way of a disciplinary hearing at the Counties Racing Club (CRC), or she could possibly go to the JCA. Mrs Jeffcoat gave evidence that she felt she was being pushed towards choosing to have a Club hearing, and so she agreed to that course of action.
[10] Having spoken to her husband, however, she decided she would prefer to go to the JCA. For reasons that are unimportant, she felt she might not get a fair hearing from the CRC’s disciplinary committee. She therefore phoned Mr McKenzie and said she preferred the matter to go to the JCA. It is alleged she was told by Mr McKenzie that it was too late to change her mind and that the hearing had already been organised.
[11] The CRC disciplinary sub-committee met on 2 June 2010. By then the police had advised that they had decided to warn Mr Collett and would take no further action. At that hearing Mr Collett pleaded guilty to a breach of clause 8 of the CRC bylaws and was fined the maximum financial penalty under the bylaws of $500.
[12] In late-July NZTR stipendiary stewards interviewed Mr Collett in relation to a possible breach of the New Zealand Rules of Racing. This unfortunate delay is not explained. On 4 August they filed an information against Mr Collett with the JCA alleging a breach of Rule 801(1)(s)(i) of the Rules. Prior to the JCA hearing in September, a second, alternative information against Mr Collett was laid for a breach of Rule 340.
[13] During the course of the hearing on 17 September, by agreement of the parties, the charge pursuant to Rule 801 was withdrawn and Mr Collett indicated he would plead guilty to the Rule 340 charge, but reserved his right to raise the abuse of process argument.
[14] Mr Alderslade contended before the Judicial Committee that it was an abuse of process as his client was being tried twice by different tribunals, both associated with the administration of racing, for precisely the same offence. It is said that the misconduct allegations brought by the CRC and the allegations faced under Rule 340 were in every respect exactly the same event. The commonality of circumstances was said to give rise to the abuse of process.
[15] On behalf of NZTR, it had been argued in front of the JCA that there was a critical distinction between the proceedings before the CRC and the proceedings before the JCA. It was submitted that the former arose from a private law relationship, while the latter arose from the Rules of Racing that find their provenance in the Racing Act 2003.
[16] This categorisation did not find favour with the JCA. The JCA found the similarities between the proceedings taken by NZTR and those before the CRC to be so striking that there was an abuse of process. The public interest consideration under the JCA proceedings did not persuade the Committee that there was a need for Mr Collett to be twice penalised for the same conduct.
 

Submissions
[17] Mr Colson contends that there are such differences in the nature, purpose and scope of hearings before the JCA and the CRC that there can be no abuse of process in this case. Rather obviously, Mr Alderslade contends, in his support of the JCA decision, that the similarities are such that the JCA hearing amounted to an abuse of process.
[18] Mr Colson argued that a consideration of the statutory and regulatory schemes relevant to the hearing shows this is so. He submitted it is clear that Parliament has chosen to regulate the discipline of licence holders in the racing industry through the Act. NZTR promulgates the rules, but both the JCA and NZTR rely on each other in respect of amendments to the rules – that is, there is a mutual duty of consultation. Parliament has created in the JCA a specialised body dealing with breaches of the rules, and there is a clear and prescribed statutory scheme which allows NZTR to instigate the disciplining of licence holders through the laying of an information to be considered by the JCA, which may then impose penalties.
[19] He said it is clear that under that statutory regime NZTR has an obligation to act on behalf of the entire racing industry, pursuant to its obligation to oversee the thoroughbred racing code. It is not there for the interests of just one club. He submitted the JCA is a specialist tribunal with the statutory powers and protection that entails.
[20] Whether it is NZTR considering whether to proceed with an information, or the JCA in imposing penalty, there is available a record of a licence-holder’s history of conduct including warnings and breaches of the rules. This allows both bodies to oversee the standards of conduct of licence holders. There is also a power to suspend or disqualify, which is the ultimate industry disapproval of a licence-holder’s action and the protection of the public at large. Essentially the submission is that NZTR and the JCA exist under a statutory power and function to regulate the industry participants for the good of the whole industry and the wider public.
[21] Mr Colson contrasted this with the bylaws under the CRC. The relevant bylaw, he submitted, applies to those who hold permits, and those who do not but are otherwise attending the training facility. That is, it binds those who have contracts with the CRC, but also others attending the training facility.
[22] He submitted the relationship between Mr Collett and the CRC was a contractual private law relationship, with Mr Collett having certain rights in relation to the CRC's land and paying consideration for those rights. An essential element of this contract is that he must observe the bylaws.
[23] In clause 8 of the CRC bylaws there is a summary remedy allowing for an offender to be expelled from the training facilities. Rhetorically, Mr Colson asked ‘Does that mean if a licensed trainer was summarily expelled because of an assault, any information laid under the rules of racing and brought before the JCA would be an abuse of process?’ He said the elected club officials making up the sub-committee were the decision-makers. He said their limitations were recognised in their own decision where the chairman stated they were not there to hear matters of a criminal nature and they were not empowered to administer matters that relate to the statutes of New Zealand. Simply, they were there to administer the bylaws of the CRC, and Mrs Jeffcoat had other remedies if she wished to exercise those other rights.
[24] Mr Alderslade submitted that the decision of the JCA in this case was fact-specific. He submitted that notwithstanding the submissions of the appellant to the contrary, there were no wider implications and consequences for NZTR’s jurisdiction to deal with licence holders. Whether such a prosecution constituted an abuse would be fact-specific to each case.
[25] He accepted that the “public” interests of thoroughbred racing may require an NZTR prosecution subsequently, and this would be a factor militating against an abuse of process. He said this could arise where the conduct was extremely bad and high profile, but a club’s response was disproportionate.
[26] However, he submitted in this case that there were compelling factors determining there was an abuse of process. These were:
• the parties were essentially the same;
• the initial complaint from Mrs Jeffcoat was lodged with NZTR;
• having been seized of it NZTR had the ability to investigate and issue an information;
• both proceedings were disciplinary in nature.
[27] He said the relevant bylaw and rule are directed at preventing misconduct in racing and the stipendiary steward, Mr McKenzie, after being seized of the complaint, felt that a proceeding under the CRC bylaws was the most appropriate course of action. Mr McKenzie was a most experienced investigator, being the Chief Racecourse Inspector, who had previously dealt with complaints in a similar manner. It was he who instigated the complaint to the CRC. All the relevant material relating to what occurred is the same, and the sub-committee’s disclaimer means no more than it was not for them to determine whether or not Mr Collett’s actions constituted a criminal assault. Similarly, the JCA cannot determine whether or not a criminal assault has been committed.
[28] Therefore, he submitted, the factual allegations were entirely co-extensive and there was no public racing interest that demands a subsequent NZTR prosecution which outweighs Mr Collett’s private interests in not being unduly harassed.
[29] Further, Mr Collett, following his admission of guilt, was told by Mr McKenzie a fine under the bylaw would be the end of the matter and no explanation by NZTR as to its reasoning and rationale for lodging the later information had been given.
 

Discussion
[30] Abuse of process is a well-known mechanism available to courts and tribunals. It has been developed to ensure that processes are not misused or used in a way that prevents justice being done.
[31] Whether or not an action is an abuse requires a broad inquiry. In Johnson v Gore Wood & Co [2002] 2 AC 1 at 31, Lord Bingham defined abuse of process as:
… a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the critical question whether, in all the circumstances, a party is misusing or abusing the process of the court....
[32] The leading New Zealand authority is the decision of the Supreme Court in Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1. In the joint judgment of Blanchard, Tipping and McGrath JJ it is stated:
[97] The common law recognises two standards of proof. The lower standard, the balance of probabilities, is that generally applied in civil proceedings. It is well established that professional disciplinary proceedings are civil and not criminal in nature. That is because the purpose of statutory disciplinary proceedings for various occupations is not to punish the practitioner for misbehaviour, although it may have that effect, but to ensure that appropriate standards of conduct are maintained in the occupation concerned.
…
[128] It is accordingly appropriate to consider further the nature of, and public interest involved in, the disciplinary process, including the framework within which the Act provides for that process. The purpose of disciplinary proceedings is materially different from that of a criminal trial. It is to ascertain whether a practitioner has met appropriate standards of conduct in the occupation concerned and what may be required to ensure that, in the public interest, such standards are met in the future. The protection of the public is the central focus. Protection is a less prominent factor in the criminal process. One consequence of this difference is that the disciplinary process may cover much wider ground than that litigated at the criminal trial.
[129] This breadth is reflected in what the Act provides in relation to the Tribunal’s proceedings, already discussed in our consideration of whether disciplinary proceedings should form an exception to general principles of the standard of proof. The inquisitorial nature of the inquiry, coupled with the Tribunal’s own power to summon witnesses and generally to admit evidence which is not admissible in criminal proceedings, are all in point. Also, the inclusion of dentists in the membership of the Tribunal brings expertise in the occupational field concerned, which is clearly relevant to its capacity to make judgments on appropriate standards of practice. The same point can be made in respect of bodies such as the respondent which exercise judgment in deciding whether to initiate disciplinary proceedings.
[130] In addition to these differences in purpose, scope of inquiry, and process, there is an important difference between the determinations that the Tribunal must make and those made in the criminal context. While the District Court jury was required to decide if all elements of the criminal charges were proved beyond reasonable doubt, the Tribunal must simply determine if it is satisfied that the practitioner is guilty of conduct detrimental to patient welfare or professional misconduct. The combined effect of all these factors makes it likely that in many cases different evidence will come before the Tribunal, which is addressed to wider aspects of a practitioner’s conduct than the strict regime of a criminal trial would allow.
…
[132] Taken together, these considerations do, however, signal the importance of the public interest served by the disciplinary process and the difference in nature of that process from criminal justice. These are clearly important policy factors in addressing the abuse of process issue in this case. They tell strongly against the proposition that the initiation of disciplinary proceedings, for the intended statutory purpose, is an abuse of process even if they include the same allegations as those in earlier criminal proceedings which resulted in an acquittal.
[33] We are satisfied that by applying the accepted legal tests, the JCA reached the incorrect conclusion in this case. As noted in Johnson, the crucial question is whether or not NZTR were misusing the Rules of Racing or abusing the processes of the JCA in bringing this matter before the JCA. To determine that requires a broad judgment on the merits, taking account of all public and private interests involved and all of the facts of the case. As noted, parts of the facts have not been finally determined in this case.
[34] We see an essential difference in the scope and purpose of the proceedings between the CRC sub-committee and the JCA. This is very much on the basis of the analysis of the differences in the purpose and scope of the proceedings put forward by the appellant. That factual matters in one proceeding will necessarily be traversed in the other is, in our view, not a bar (see Z v Dental Complaints Assessment Committee). But we accept inevitably that will often be the case.
[35] NZTR and the JCA are created by statute and are charged with protecting the interests of a valuable New Zealand industry, the thoroughbred racing industry. In equal parts they are charged with protecting the interests of the race-going public. The scope of their obligations is significantly wider than the obligations of the CRC. We consider Mr Colson to be right to characterise the relationship between the CRC and Mr Collett as a contractual one which required Mr Collett to abide by the Club bylaws. We are satisfied that it did not take Mr McKenzie’s recommendation to empower the CRC and its sub-committee to enforce the bylaws against Mr Collett. It is clear the Club could have independently taken steps to do so.
[36] What that means, of course, is that any club that determined to act with great expedition under its bylaws, convening a hearing and imposing a penalty, would effectively, notwithstanding Mr Alderslade’s submissions, prevent the invoking of the statutory and regulatory powers enjoyed by NZTR and the JCA. (Indeed the exercise of the summary power to expel from the course could have such an effect). We are satisfied that this cannot be in the best interests of thoroughbred racing or of the race-going public. There are a number of reasons for this, but the prime ones are that penalties imposed by the sub-committee of the CRC under the bylaws are significantly less than those that can be imposed by the JCA, and the fact of any such breach would not generally be disseminated to the thoroughbred racing industry or the race-going public. The records of previous behaviour and disciplinary breaches under the statutory/regulatory regime are kept and are available rather like a list of convictions in a criminal court. We consider that it is essential that such a list has integrity and cannot effectively be bypassed by swift action by a racing club under its bylaws. Effectively to uphold the JCA decision would allow clubs to bypass the legislative scheme that Parliament has put in place. Such a scheme has a much wider and broader aim than the contractual relationship with a club. We do not consider this to be appropriate. Indeed it would undermine the intent and integrity of the scheme put in place by the Act. That is clearly contrary to the public interest.
[37] We see no abuse of process offending against the public interest in the finality of litigation and the need for a person not to be vexed twice in the same matter. There are significant differences in scope and effect between the two processes that satisfy us in this case, taking a broad-based merits approach, that there has been no abuse of process.
 

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[38] Accordingly, we allow the appeal. Mr Collett indicated that but for the abuse of process argument he would plead guilty to the Rule 340 breach. We invite further submissions as to penalty, but consider it appropriate to take into account in this case that the procedure adopted was that recommended (in a non-binding way) by Mr McKenzie, and that an appropriate penalty in those circumstances could be considered to be less than would normally be the case. There is also the delay in laying the information to be appropriately factored in.
[39] For the same reason, while inviting submissions as to costs, we consider that costs could properly lie where they fall.

_______________________________           _________________________________
The Hon Sir John Hansen KNZM    Professor Geoffrey Hall

hearing_type: Non-race day

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Informant: Cameron George - Chief Stipendiary Steward

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Respondent: Richard Collett - Trainer

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