Appeal CW Johnson v RIU – Costs Decision of Appeals Tribunal dated 8 December 2015 – Chair, Mr T Utikere

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hearing_title: Appeal CW Johnson v RIU - Costs Decision of Appeals Tribunal dated 8 December 2015 - Chair, Mr T Utikere

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BEFORE THE APPEALS TRIBUNAL OF THE

JUDICIAL CONTROL AUTHORITY

AT CHRISTCHURCH

UNDER THE RACING ACT 2003

IN THE MATTER of the Rules of Racing

BETWEEN C W JOHNSON

Appellant

AND RACING INTEGRITY UNIT

Respondent

Appeals Tribunal: Mr T Utikere (Chairman)

Mr S Ching (Member)

Appearances: Mr B Kinley (for the Appellant)

Mr C Johnson (Appellant)

Ms B Middlewood (Appellant’s Partner)

Mr R Neal (for the Respondent)

Mr N McIntyre (Registrar)

Hearing: Held at Christchurch, 20 November 2015

Date of Costs Decision: 8 December 2015

COSTS DECISION OF APPEALS TRIBUNAL

INTRODUCTION

[1] In determining whether to make an award for costs, it is observed that discretion lies with this Appeals Tribunal as to the awarding of costs. Costs are usually awarded in favour of the successful party against the unsuccessful party in such proceedings.

[2] Rule 1007(3) states: "The Appeals Tribunal may order that all or any of the costs and expenses of any party to the Appeal..."

[3] The Tribunal also notes the existence of the Practice Note related to costs (dated 25 September 2014) issued by the Judicial Control Authority (JCA).

SUBMISSIONS

[4] Mr Johnson was unsuccessful in his appeal against the decision of a Raceday Committee. The Tribunal considers that an award of costs should be made in favour of the Respondent.

[5] Written submissions as to costs have been received from both parties.

[6] The RIU refers the Tribunal to the Costs Decision in NZTR v McAnulty (2011); specifically inviting us to consider the same principles towards our costs determination.

[7] The RIU submitted the following costs:

Transcript (Penalty) $46.00
Airfares $486.00
Total $532.00

[8] Mr Kinley in his written submission, acknowledges that Mr Johnson accepts that he faces an award of costs being made against him. He also rejected the applicability of the McAnulty Costs Decision, citing that Mr Johnson's appeal was quite different to the circumstances of that case.

[9] He submits that the Appellant's appeal was not a frivolous one, identifying Mr Johnson as a rider who lightly appeals decisions.

[10] Mr Kinley believed the appeal included aspects that reasonably required examination by the Tribunal. He submitted that the judicial system should not hold Mr Johnson liable for the whole, nor indeed a significant portion, of actual costs incurred as a result of the non-frivolous appeal.

DISCUSSION

[11] The Tribunal accepts from the outset that Mr Johnson's appeal was not to be considered frivolous nor time-wasting. Further, it also considers that the circumstances of this appeal are quite separate to the McAnulty case, which we note was a matter related to a charge of serious misconduct.

[12] The appeal has allowed this Tribunal to provide clarity and guidance to Judicial Committees in approaching the calculation of genuine race days within a period of suspension. However, we do accept that it is appropriate for Mr Johnson to meet some of the costs incurred as a result of the unsuccessful appeal.

[13] The Tribunal considers it appropriate to adopt an approximate 60% costs award in favour of the RIU, alongside a contribution towards the JCA's costs.

DECISION

[14] The Appellant is ordered to pay costs to the RIU in the amount of $300. He is also to make a contribution to the costs of the JCA in the amount of $350.

[15] The Tribunal also orders that the filing fee is to be retained by the JCA, pursuant to Rule 1011.

Dated this 8th Day of December 2015

Tangi Utikere

Appeals Tribunal Chairman

Signed pursuant to Rule 1007(5)

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