Non Raceday Inquiry RIU v J Habraken – Decision as to Costs dated 17 April 2019 – Chair, Prof G Hall

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decisiondate: 17/04/2019

hearing_title: Non Raceday Inquiry RIU v J Habraken - Decision as to Costs dated 17 April 2019 - Chair, Prof G Hall

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Decision:

BEFORE A JUDICIAL COMMITTEE OF

THE JCA AT HAMILTON

UNDER THE RACING ACT 2003

AND IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN-RACING INTEGRITY UNIT (RIU)

Informant

AND-MR JON HABRAKEN

Stablehand

Respondent

Information: ---A8710

Judicial Committee: --Prof G Hall, Chairman

Mr D Jackson, Member

Appearing: -On the papers

DECISION OF JUDICIAL COMMITTEE AS TO COSTS

[1]-By written decision delivered on 12 March 2019 the Committee fined Mr Habraken $5,000 for his breach of r 1001(1)(y), itself a serious racing offence under the Rules. We called for the parties to file submissions as to costs.

[2]-Mr Symon, for the Informant, has filed a memorandum dated 14 March 2019. He seeks an order for costs in the RIU’s favour in the amount of $1,300. Mr Habraken has not filed any submissions and has not replied to a further email concerning this matter from the Executive Officer of the JCA.

[3]-In the absence of any submissions from Mr Habraken in opposition, the Committee will determine the issue of costs having regard to Mr Symon’s memorandum and the evidence adduced at the hearing on Mr Habraken’s behalf as to his personal and financial circumstances.

[4]-The Committee is empowered to determine the issue of costs pursuant to the 5th Schedule to the Rules of Harness Racing, which came into effect on 27 August 2015.

[5]-Clause 29 of the 5th Schedule provides that the Committee may order any person “as it thinks fit” to pay all or any of the reasonable costs and expenses of any party, HRNZ, the RIU, the Judicial Committee, and the Judicial Control Authority.

[6]-Mr Symon submits that the Informant has incurred the cost of investigating and prosecuting Mr Habraken’s breach of the Rules. He submits that the $1,300 costs award sought represents approximately 60 percent of the costs of counsel incurred by the Informant.

[7]-There is no scale applicable in cases such as these. The Committee’s discretion is broad. It may order costs “as it thinks fit”. The Informant has succeeded in its case. It is entitled to costs. The question though here is whether it is entitled to recover costs in circumstances where the case against Mr Habraken formed part of a broader enquiry, which focussed – in particular – on Mr Simon Lawson. Mr Habraken, of course, has admitted aiding and abetting Mr Lawson and did so at the first opportunity. The case against him was comparatively straightforward in that sense.

[8]-It follows that the bulk of the Informant’s costs sought can only have been incurred in the preparation of and presentation of its submissions as to penalty. By those submissions, the Informant sought the disqualification of Mr Habraken. Ultimately, the Committee determined to fine Mr Habraken for a combination of reasons, but primarily because of his vulnerability and the crushing effect that a disqualification may have on him.

[9]-It would be wrong to say that the Informant did not succeed against Mr Habraken on penalty because the penalty imposed was a substantial fine. However, for the reasons which informed the Committee to temper the penalty and the fine itself, we cannot agree to an award of costs in the amount sought. Rather, the Committee reflects on the circumstances of the breach and of Mr Habraken.

[10]-For these reasons, the Committee determines that an award of $500 costs in the Informant’s favour is appropriate. Mr Habraken is ordered to pay $500 costs to the Informant.

[11]-There is also an order that the Respondent pay costs of the JCA in the sum of $200.

[12]-Mr Habraken is reminded that a failure to pay a costs award within 28 days will result in his being deemed to be in arrears, a consequence of which may include his being placed on the unpaid forfeit list.

Dated at Dunedin this 17th day of April 2019.

Geoff Hall, Chairman

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