NZGRA Request for Review G Frederickson v RIU – Decision dated 18 March 2020 – Chair, Mr T Utikere

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decisiondate: 19/03/2020

hearing_title: NZGRA Request for Review G Frederickson v RIU - Decision dated 18 March 2020 - Chair, Mr T Utikere

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Decision:

BEFORE A JUDICIAL COMMITTEE OF THE

JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the Rules of Greyhound Racing

BETWEEN G FREDERICKSON

Informant

AND-RACING INTEGRITY UNIT

Respondent

Judicial Committee:-Mr T Utikere (Chairman)

Mr N McCutcheon (Member)

Parties:--Mr G Frederickson (as the Applicant)

Mr S Wallis (for the RIU)

DECISION OF JUDICIAL COMMITTEE DATED 18 MARCH 2020

INTRODUCTION

[1] This Non-Raceday Judicial Committee has been appointed to deal with a Request for a Review that has been filed with the Judicial Control Authority (JCA), by Public Trainer, Mr G Frederickson. The Notice of Review sets out the grounds of the Review.

[2] The greyhound which Mr Frederickson trains, HEY FERNANDO, was stood down for a period of 12 months by raceday Stipendiary Stewards, after they determined it had marred in Race 9 at the Auckland Greyhound Racing Club’s meeting at Manukau Raceway on 23 February 2020. Mr Frederickson seeks the period of the stand down to be reduced to one of three months.

[3] A teleconference was convened for all parties. Mr Frederickson confirmed that he accepted his dog had marred, and was only seeking a review of the penalty imposed. With the concurrence of both parties the Committee issued a Minute which outlined a timeframe for the filing of Submissions so that it could hear this matter on the papers. It was considered appropriate for the RIU to file their Submissions first, followed by that of Mr Frederickson. Submissions have been received, and the Committee is now in a position to issue its decision on the Review Request.

THE RIU’S SUBMISSIONS

[4] Mr Wallis’ submissions set the context for the position of the RIU by identifying the relevant Rules and Policies. These included Australian Rules, which are important for us to set out, the reason for which will become clearer in this Decision.

The Relevant Rules and Policies

Greyhound Racing New Zealand Rule 55.1

[5] Rule 55.1 states:

“Where a Greyhound:

(a) -Mars the running of any other Greyhound during a Race; or

(b) -Fails to pursue the Lure in a Race;

the Stewards may impose the following periods of suspension:

(c) -in the case of a first offence, twenty-eight (28) days and until the completion of a Satisfactory Trial; or

(d) -in the case of a second offence under Rule 55.1 (which for clarity need not be the same offence as the first offence under that subsection), three (3) months and until the completion of a Satisfactory Trial, or

(e) -in the case of a third or subsequent offence, under Rule 55.1 (which for clarity need-not be the same offence as the first offence under that subsection), twelve (12) months and until the completion of a Satisfactory Trial.”

Greyhound Racing New Zealand Rule 55.7

[6] Rule 55.7 provides oversight of the process for cancelling a marring endorsement on a Greyhound’s Certificate of Registration, when the Owner/Trainer of the greyhound has sought the cancellation of the endorsement following the greyhound’s successful completion of 10 clear runs. The Rule also stipulates that only one application may be made for such cancellation in respect of a Greyhound.

Greyhound Racing Australasia Rule 69

[7] The Greyhound Racing Australasia Rule 69 stipulates the periods of suspension (whilst the Australian Rules use the word 'suspension' the relevant New Zealand definition if that of a 'Stand Down') that apply to a greyhound after a greyhound is found to have marred. There is no discretion as to the period of suspension which must be applied as that is set out in Rule 69(2) which states:

“The period of suspension imposed pursuant to sub-rule (1) shall be -

(a)-In the case of a first offence, at the track where the offence occurred, 28 days and until the completion of a satisfactory trial; or

(b)-Subject to Rule 70, in the case of a second offence, at all tracks, 3 months, and until the completion of a satisfactory trial; or

(c)-In the case of a third or subsequent offence, at all tracks, 12 months and until the completion of a satisfactory trial”.

Greyhound Racing Australasia Rule 70

[8] Greyhound Racing Australasia Rule 70 sets out the process for the cancellation of a marring endorsement. It essentially states that where a greyhound contains one endorsement for marring, and that greyhound competes in not less than ten events the owner or trainer may apply to have the endorsement cancelled. It has a rider that only one application may be made pursuant to that Rule in respect of any greyhound.

[9] The Rule also identifies that where the Controlling Body cancels the endorsement, “that one cancelled endorsement shall not be treated as a prior offence for the purposes of determining the length of the period of suspension to be imposed on a subsequent offence…” (Greyhound Racing Australasia Rule 70(2)).

Greyhound Racing Victoria Local Rule 54

[10] This states that for the purposes of Greyhound Racing Australasia (GAR) Rule 70, “where a greyhound has been previously recorded with a single endorsement for a breach of rule GAR 69 it shall be automatically removed from the greyhound’s record, after competing in not less than ten (10) Events (Emphasis added), excluding a course, without being subsequently endorsed for a breach of GAR 69.”   (Greyhound Racing Victoria Local Rule 54.1)

Greyhound Racing New Zealand Import and Grading Policy  (Effective 1 January 2019)

[11] This Policy indicates criteria that are applicable to greyhounds that are imported into the country for racing purposes. It describes how the onus for the provision of correct and accurate information for the dog lies with the licensed person who is importing it. It also specifically, at clauses 6 to 9 of the Policy, sets out:

“6. It is also a requirement that licensed persons furnish GRNZ with a copy of the steward’s report pertaining to the greyhound’s last race day start overseas, thus removing the possibility that there isn’t any relevant racing endorsement (e.g.: stand down period).

7. It is also a requirement that licensed persons furnish GRNZ with a copy of any current endorsements, race day or otherwise, that have resulted in any stand-down.

8. It is the reasonability (we infer this to be 'responsibility' ) of the Importer to ensure compliance with GRNZ Rule 35.1 which must include all stand downs and penalties. These must be submitted before the dog is registered in NZ.”

[12] Mr Wallis also helpfully set out in his submissions the racing history of HEY FERNANDO, with annotations where relevant. We consider it helpful to set out the dog’s racing history (in Australia and New Zealand), with Mr Wallis’ annotations, below:

Date(s), Location(s) and/or Races, Annotation(s) (As provided by Mr Wallis in his Submissions)

9 April 2018:  Launceston - Stood Down for Marring under GAR Rule 69 - Cannot race at Launceston until satisfactory trial at this track. Free to race at all other tracks (First Offence)

21 June-27 Aug 2018:  Raced on six occasions (Hobart and Launceston)

26 Oct 2018:  Geelong - First start in Victoria

2 and 9 Nov 2018:  Raced on two occasions at Geelong

14 Nov 2018:  Ballarat - 10th start after first offence - first offence automatically cancelled after this race under GRV LR 54. So next offence will be deemed first offence.

21 Nov-8 Dec 2018:  Raced on three occasions at Ballarat

15 Dec 2018:  Sale - Stood down for Marring under GAR Rule 69 - Cannot race at Sale until Satisfactory trial at this track. Free to race at all other tracks. This being deemed first offence due to 10 clear races being completed on 14 November at Ballarat (First Offence).

28 Dec 2018-23 Feb 2019:  Raced on eight occasions (Geelong and Meadows)

3 Apr 2019:  Wanganui - Completed Satisfactory Trial at Wanganui as per GRNZ Import Policy.

12 Apr-20 May 2019:  Raced on eight occasions (Wanganui, Addington, Manawatu and Cambridge)

24 May 2019:  Wanganui - Stood Down for Marring under GRNZ Rule 55.1(a) - Second Offence so stood down for three months under GRNZ Rule 55.1(d), and must complete a Satisfactory Trial (Second Offence).

2 Aug 2019:  Wanganui - Satisfactory Trial completed.

26 Aug-14 Oct 2019: 10 Clear runs completed (Manawatu and Wanganui) - 10 clear runs endorsed incorrectly at this meeting (Manawatu Meeting on 14 October 2019). GRNZ Rule 55.7 & GAR Rule 70(1) clearly reads only one application can be made. GRV LR 54 provides this to be automatically endorsed. HEY FERNANDO is ineligible to have this endorsed at this meeting as it’s first offence was cancelled after 10 clear races at Ballarat on the 14th November 2018.

25 Oct 2019-14 Feb 2020:  Raced on 14 occasions (Manawatu and Wanganui)

23 Feb 2020:  Auckland - Stood down for Marring under GRNZ Rule 55.1(a) - Third offence so stood down for 12 months under GRNZ Rule 55.1(e) and must complete a satisfactory trial (Third Offence).

[13] Mr Wallis has submitted that it is clear that HEY FERNANDO has transgressed under the GAR Rule 70 and then under GRNZ Rule 55 on four occasions, and that the Rules are reciprocal between both countries. He confirmed that both Rules only provide for one application for the endorsement to be cancelled after the completion of 10 clear runs.

[14] Mr Wallis accepts that Mr Frederickson had been given incorrect information by Stewards on 14 October 2019 at the Palmerston North Meeting, and that 10 clear runs were ‘inadvertently endorsed’ on the second occasion. While he sympathises with Mr Frederickson, Mr Wallis refers to the GRNZ Import Policy where it is the reasonability (sic) of the Importer to ensure compliance with the requirement to advise of all stand downs and penalties. He has also provided the Committee with a copy of the Import Form for HEY FERNANDO.

[15] While Mr Wallis accepts that the Stewards had incorrectly endorsed the 10 clear runs on 14 October last, he submits that both Rules are clear in that such an endorsement may only be endorsed on one occasion and that this was automatically done at Ballarat on 14 November 2018. The RIU believes that the Steward Panel at Auckland on 23 February were correct to stand HEY FERNANDO down for 12 months and a requirement for a satisfactory trial to be undertaken for a third breach of Rule 55.1(a). In summary, the RIU respectfully seek the dismissal of the Review.

THE APPLICANT’S SUBMISSIONS

[16] Mr Frederickson filed a number of supplementary documents in support of his written submissions. The first was the Stipendiary Steward’s Report from the Palmerston North Greyhound Racing Club’s Meeting held on 14 October 2019, which noted that “HEY FERNANDO has now completed 10 clear runs”.

[17] A copy of the relevant page from HEY FERNANDO’s handbook was also provided. This indicated four endorsements signed off by the RIU, namely:

●-3 April 2019 at Wanganui - Completed a Satisfactory Trial;

●-24 May 2019 at Wanganui - Rule 55.1a three months stand down and a Satisfactory Trial;

●-2 August 2019 at Wanganui - Completed a Satisfactory Trial with Blinkers;

●-14 October 2019 at Wanganui - Completed 10 clear runs.

[18] Mr Frederickson also furnished copies of the Steward’s Report from Ballarat on 14 November 2018 and Sale on 15 December 2018. The latter identified that HEY FERNANDO was found guilty of marring and was suspended for 28 days.

[19] Following the dog’s ninth start in New Zealand on 24 May 2019, the dog was stood down for three months for marring. As the dog had nine clear runs at that point, Mr Frederickson asked Mr Mike Austin what the dog’s position was with regard to future obligations. Mr Austin advised that he would seek advice on the matter. He then followed up with the Applicant, and advised that as the dog had not completed 10 clear runs in New Zealand, he could do so, and would then be “wound back to 28 days” (From the Informant's Written Submissions)

[20] Following that, Mr Frederickson then outlined the dog’s future starts as:

2 August 2019:  HEY FERNANDO has a qualifying trial, cleared to race after 24 August

26 August 2019:  HEY FERNANDO has his first of 10 clear runs

14 October 2019: HEY FERNANDO completes his 10th clear run at Palmerston North

[21] At the meeting on 14 October 2019, the greyhound’s endorsement is signed off in its Handbook, and the connections start racing the dog, thinking that the one year stand down penalty is now reduced. The Applicant also states that he started to pick his racing distances and frequency of racing in relation to the new, reduced, penalty. Then on 23 February, some 15 starts later, the dog is stood down for 12 months after marring in the race.

[22] Mr Frederickson explained that GRNZ Rule 55.7 states that the greyhound gets one endorsement, but that it neglects to indicate that a dog’s previous Australian racing history is relevant. He also pointed out to the Committee that as the owner or trainer, they were the first to make an application for the endorsement to be cancelled in both New Zealand and Australia. He supported this view by the lack of an endorsement in relation to HEY FERNANDO in any Stewards’ Reports in Australia.

[23] Such an endorsement was sought in close guidance and support of the RIU, and it is the view of the Applicant that once the endorsement was signed on 14 October, a contract was entered into between the connections of HEY FERNANDO and the RIU.

[24] On the issue of a potential ‘contract’, Mr Frederickson submits that the RIU would be within their rights to inform him that there were issues with the endorsement prior to the dog being charged on 23 February, but not after that point. Whilst the contract may have been rescinded prior to that date, on 23 February it is his view that the contract matured and for the RIU to simply say they had got it wrong, and it was tough luck, was not honouring what was a signed contract.

[25] Mr Frederickson concludes his submissions by indicating that the dog would have been managed differently, racing over shorter distances, if there was a 12 month stand down penalty potentially hanging over its head. He reiterated that as the connections of the greyhound had undertaken their due diligence in this matter the contract should be honoured and the stand down period for HEY FERNANDO should revert to one of three months.

REASONS

[26] We thank both parties for filing comprehensive submissions to assist us in this matter. The implications of the relevant Rules are reciprocal between both Australia and New Zealand. We mention this, because while the approach is slightly different between the need to seek the cancellation of an endorsement in some jurisdictions, whereas such an endorsement is automatically cancelled in the State of Victoria; once an offence of marring has been established, the consequences that follow are defined in each of the Rules. Those Rules take into account previous offences that are deemed to be offences for the purpose of determining which consequence ‘shall’ (Greyhound Racing Australasia Rules) or ‘may’ (Greyhound Racing New Zealand Rules) follow.

[27] While Mr Frederickson cannot find any reference to an endorsement being cancelled for HEY FERNANDO in any Australian Stewards’ Reports, we are not aware of any need for such a course of action to be advised by way of official notification in any Stewards’ Reports.

[28] HEY FERNANDO’s Racing History that has been submitted, has been very helpful. We accept that after 10 clear runs, an endorsement may be cancelled across all racing jurisdictions that HEY FERNANDO has been subject to. It is also clear that the cancellation across all jurisdictions can only be utilised once. While the mechanism to achieve the cancellation may vary from jurisdiction to jurisdiction, we are satisfied that the single cancellation endorsement that was available to HEY FERNANDO was utilised after its tenth clear run at Ballarat on 14 November 2018.

[29] Whether or not the connections made an application for cancellation or not is irrelevant, as the one opportunity available to HEY FERNANDO had been exercised in accordance with the Rules in Victoria; that is by way of an automatic cancellation following the dog’s tenth clear run on 14 November 2018.

[30] It is understandable that Mr Frederickson is frustrated after he received an inaccurate signal from Stewards when he sought advice about potential consequences for his dog when it raced on 24 May at Wanganui. The provision of inaccurate, and at the time what could be described as considered, advice to him by the RIU is unfortunate to say the least. This advice led to a training and racing regime that was at odds with steps he may have taken if the next step was to potentially be a 12 month stand down for marring in the future.

[31] Whilst Mr Frederickson believes that the relationship around the endorsement is to be viewed in the nature of a Contract, we disagree. The Rules and relevant Policies are quite clear, that there is an obligation on Mr Frederickson as a licensed person to be familiar with the Rules and this is reinforced by the importing requirements that are imposed prior to import. Any annotations in the dog’s Handbook, which have been viewed as a contract in the eyes of the Applicant, do not override the responsibilities or penalties which may follow under the Rules.

[32] What we must consider is whether the actions taken by the Stewards on 23 February were in accordance with the relevant Rules. It is clear that HEY FERNANDO has a history of marring, and the Applicant accepts that the greyhound did mar when it raced in Auckland last.

[33] Based on the racing record of HEY FERNANDO it is clear that the offence on that date was the dog’s third or subsequent offence. As it was racing in New Zealand, the relevant Rule 55.1(e) does apply. That is a requirement for a 12 month stand down and a satisfactory trial to take place.

[34] Ignorance of the Rules by a licensed person is no excuse. What might be mitigation in the current context is that incorrect advice from the RIU was given to Mr Frederickson, which led to him embarking upon a racing regime for HEY FERNANDO with the inaccurate advice in mind. However, that does not displace the ability for the Stewards to impose a 12 month stand down, if they choose to.

[35] It would be prudent for the RIU to review their own processes to ensure that where advice is sought from licensed persons, there is confidence in the robustness and accuracy of what is provided. This is especially so in circumstances where the provision of such advice is seen as considered, rather than off the cuff.

[36] As identified at Para [26] above, an element of discretion in relation to breaches of this nature does rest with Stewards, which is a key difference between the New Zealand and Australian Rules. This means that the RIU did have a discretion that they chose to exercise on the day. We form the view that was, in the circumstances presented, a permissible course of action for them to take.

[37] Finally, we do reiterate that the discretion is contained in Rule 55.1 by the inclusion of the word ‘may’. In light of the circumstances advanced by Mr Frederickson, if the RIU wish to retrospectively take an alternative position on exercising their discretion, that is a matter that remains available to them.

DECISION

[38] The outcome of the Review is that the raceday decision of the Stipendiary Stewards to stand down HEY FERNANDO for a period of 12 months is confirmed. The requirement to satisfactorily trial prior to racing next is also confirmed.

[39] The Committee also declines to exercise any discretion in relation to any costs that may have been incurred by the JCA or either party.

Signed at Palmerston North this 18th day of March 2020.

Mr Tangi Utikere

Chairman

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