Appeal AR Beck v RIU 11 April 2012 – Decision as to Costs dated 9 July 2012

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decisiondate: 04/07/2012

hearing_title: Appeal AR Beck v RIU 11 April 2012 - Decision as to Costs dated 9 July 2012

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

BEFORE THE APPEALS TRIBUNAL

IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN ALLAN ROBERT BECK

Appellant

AND BARRY ALEXANDER KITTO

Respondent

Appeals Tribunal:  Bruce Squire QC (Chairman) - Tim Gresson (Appeals Tribunal Member)

Counsel:  Ms M J Thomas and Mr R Donnelly – Counsel for Mr Beck, Mr C J Lange – Counsel for HRNZ

DECISION OF THE APPEAL TRIBUNAL ON COSTS

1. Introduction:

1.1 On 16 May 2012 we delivered our Decision on an appeal brought by Mr Beck against a finding by a Judicial Committee that he had committed a breach of R.1001 (1) (q) of the New Zealand Rules of Harness Racing (“the Rules”) and the penalty imposed on him. Mr Beck had admitted a charge of administering a prohibited substance namely Aminorex to a horse named “Call of Duty” which had run in and placed second in Race 3 of the Invercargill Harness Racing Clubs race meeting at Ascot Park Raceway on 20 September 2011. As a result of the breach Mr Beck was fined the sum of $10,000.00 and ordered to pay costs to the Judicial Control Authority of $500.00. Despite the fact the charge was admitted by Mr Beck we have referred to it as a finding by the Judicial Committee because of the provisions of R.1111 (1) (d).

1.2 Mr Beck appealed against both the finding he had breached R.1001 (1) (q), despite having admitted it, and the penalty imposed on him. For the reasons set out in our Decision of 16 May 2012 we dismissed both aspects of the appeal and reserved the question of costs for further submissions by Counsel. We have now received those submissions.

1.3 R.1207 (3) of the Rules confers on an Appeals Tribunal the power to award costs in the following terms:

“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. Such amount if unpaid shall be deemed arrears and may be placed on the Unpaid Forfeit List by the Board.”

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. In exercising our discretion in this case we have been guided by the observations of the Appeals Tribunal in the case of B v RIU (21 December 2011) and the Judicial Committee in NZTR v McA (17 March 2011) recognizing the difference that our function in this case has been that of an appellate tribunal.

1.4 In this case HRNZ seeks costs of 60% of its actual costs of $3,613.50 made up of legal costs and travel expenses. The Judicial Control Authorities costs, also comprising legal costs and travel expenses, have been notified at a rounded off figure of $9,000.00. In his submissions Counsel for HRNZ has pointed to the observation of the Appeals Tribunal in B that the Judicial Control Authority is funded by allocations from the New Zealand Racing Board and partly from fees and levies. Those funds are utilized to meet expenses when it is necessary to take proceedings against those bound by the rules and who breach them. Unless effective steps are taken to recover the expenses the utilisation of funds for disciplinary purposes is inevitably at the expense of the Judicial Control Authority’s and the codes other activities in relation to racing. Those observations mirror similar comments made by the Judicial Committee in the case of NZTR v McA. Counsel in his submissions also recognised the value in having cases dealt with at an appellate level which he said provided “…significant guidance in hearings for future Judicial Committees”.

1.5 Counsel for the Appellant in his submissions in reply pointed to factors which it was claimed justified the appeal being brought and the fact the appeal had drawn out a drafting difficulty with the Rules which the Appeals Tribunal had suggested might be clarified. The recovery of costs at the level of 60% submitted as appropriate by Counsel for HRNZ was disputed. Counsel for the Appellants submitted that given what he called “the benefit to the industry” which resulted from the appeal by the clarification of issues relating to administration of a prohibited substance and the drafting difficulty referred to, and the fact the Appellant had born his own costs in pursuing the appeal, the Tribunal should exercise its discretion to leave costs where they fell.

2. Discussion:

2.1 We doubt the Decision we delivered in this appeal has quite the benefits to the industry Counsel for the Appellant has urged on us. We see no particular novelty in the point made about administration and the drafting difficulties referred to in our Decision, which we have suggested might be clarified, arose from the Tribunal’s own concerns as to whether the appeal was properly brought. The issue was only addressed by Counsel after the Tribunal had specifically requested they do so. Nonetheless we think some weight can be given to the latter consideration in the exercise of our discretion. Balanced against that however, we think it appropriate to also have regard to the fact that for the reasons set out in our Decision we did not think there was any merit in the appeal brought by Mr Beck against the penalty imposed on him by the Judicial Committee.

2.2 Approaching the exercise of our discretion in the manner outlined we think Mr Beck should be required to meet 60% of the costs of HRNZ and 55% of the costs of the Judicial Control Authority which we round off at $5,000.00. In relation to the quantum of the costs advised and sought by HRNZ and the JCA we note Counsel for the Appellant has raised no issue.

3. Result:

3.1 In the result, for the reasons outlined:

(a) Mr Beck is to pay costs to HRNZ in the sum of $2,170.00;

(b) Mr Beck is to pay costs to the Judicial Control Authority in the sum of $5,000.00.

Orders are made accordingly in terms of R.1207 (3).

DATED this 9th day of July 2012

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Bruce Squire QC (Chairman)
Signed: Pursuant to R.1207 (4)

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hearing_type: Non-race day

Rules: 1001(1)(q)

Informant: Mr AR Beck - Trainer/part Owner

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PersonPresent: Ms MJ Thomas and Mr R Donnelly - Counsel for Mr Beck, Mr CJ Lange - Counsel for HRNZ

Respondent: Mr B Kitto - Racecourse Inspector representing the Racing Integrity Unit

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