Appeal D Edlin v NZGRA – 3 March 2010 – Decision 14 April 2010

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hearing_title: Appeal D Edlin v NZGRA - 3 March 2010 - Decision 14 April 2010

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Decision:

BEFORE AN APPEALS TRIBUNAL

HELD AT WELLINGTON

IN THE MATTER    of the Rules and Constitution                                                            of the New Zealand Greyhound Racing Association (Incorporated)

BETWEEN     DEB EDLIN of Shannon, Licensed

                        Owner/Trainer

                        Appellant

AND               NEW ZEALAND GREYHOUND RACING ASSOCIATION INC

                        Respondent

Appeals Tribunal:

Mr Bruce Squire QC (Chairman)

Professor Geoffrey Hall

Present were:

Ms Deb Edlin – Appellant

Mr T R Carmichael – Counsel for the Respondent

Mr J A Tannahill – Counsel for Ms Edlin

Mr L W Goodman –  Counsel for Ms Edlin

Mr Paul Williams -  Registrar

Date of hearing: 3 March 2010

DECISION OF THE APPEALS TRIBUNAL

1.      Introduction

1.1        On 19 October 2009 the Appellant Deb Edlin appeared before a Judicial Committee convened under the Rules and Constitution of the New Zealand Greyhound Racing Association (Incorporated) (hereafter "the Rules") on a charge she had breached Rule 88.1 (q).  Rule 88.1 (q) makes it an offence for any person to whom the Rules apply, to commit or omit to do any act or engage in conduct which is in any way detrimental or prejudicial to the interest, welfare, image, control or promotion of Greyhound racing.  In a decision subsequently released the Judicial Committee found the charge against Ms Edlin proved and disqualified her from the activities identified in Rule 89.5 in relation to Greyhound racing for a period of five months commencing on 10 November 2009 and ending on 10 April 2010.  The Judicial Committee also imposed a fine of $500.00 and ordered Ms Edlin to pay costs in the sum of $600. 00.

1.2        Ms Edlin then lodged an appeal against the decision of the Judicial Committee.  The grounds of appeal notified were that by its decision the Judicial Committee had:

(i)                  removed her ability to earn a living.  Ms Edlin earned income as a greyhound race photographer and her ability to carry out that work required her to have access to racecourses.

(ii)                prevented her from racing her dogs thus further reducing her income and her ability to provide for the necessities for her dogs.

(iii)               imposed a fine of $500.00 which was excessive and unprecedented.

(iv)              ordered her to pay costs when it had had no jurisdiction to make such an order.

            Subsequently in a letter dated 8 December 2009 from her Solicitors, a further ground of appeal was notified namely that the decision of the Judicial Committee conflicted with s.14 of the New Zealand Bill of Rights Act 1990.  Under Rule 97.4 all appeals, except when the Appeal Tribunal directs otherwise, are required to be by way of a re-hearing based on the evidence adduced at the hearing of the body whose decision is appealed against.

1.3        Following notification of Ms Edlin's appeal it was discovered the tape recordings of the hearing before the Judicial Committee were of insufficient quality to enable them to be accurately transcribed.  This was communicated to this Tribunal which at a telephone conference with the parties and Counsel on 12 February 2010, ordered the appeal should proceed as a de novo hearing.  In addition it is necessary to record that the Tribunal, on 16 December 2009, without opposition from the Respondent Greyhound Racing Association granted Ms Edlin's application for a Stay of Penalty previously filed pending determination of her Appeal.

2.      The Appeal Hearing

2.1        The charge which the Judicial Committee found proven against Ms Edlin and on which the appeal proceeded as a de novo hearing was as follows:

"On or about the 7^th day of July 2009 (she) committed a breach of Rule 88.1 (q) in that by posting comments on the Race Café she committed an act that was detrimental to the interest, image, control, or promotion of Greyhound racing; and is therefore liable to the penalty or penalties that may be imposed pursuant to Rule 89.1"

2.2        The first witness for the Greyhound Racing Association (hereafter "the GRA") was Mr Jeremy Kennerley who, at the time of the alleged offending by Ms Edlin, was the Chief Executive of the New Zealand Greyhound Racing Association in Wellington.  Mr Kennerley ceased holding that position on Saturday 18 October 2009.  Mr Kennerley said in evidence that on the 1^st July 2009 he was alerted by a staff member to what were said to be potentially harmful postings on Race Café.  As a result he asked for the relevant postings to be printed out and made available to him.  He said that after reviewing the postings he formed the view they were defamatory and possibly detrimental to the interests of Greyhound racing.  Over the following week or so a further series of posts were published on Race Café which, while they did not refer to him by name, he claimed did so by implication along with the Chairman of the Association, the Board and a female staff member.  Mr Kennerley said the tenor of the posts raised questions about the integrity of the persons to whom reference was made by implication and asserted or implied mismanagement within the Association.  He said these postings led to further postings which alleged an affair between himself and a staff member which was untrue and unacceptable.  His view was the postings brought the industry into disrepute by implying he and his staff were unprofessional, unethical, lacked integrity and were not capable of fulfilling their job requirements.  Further, he said the postings implied he had lied or misled the Chairman and Board of the Association as personal relationships between staff or Board members were required to be disclosed to avoid potential conflict of interest situations.  He said the postings had defamed him professionally and personally and raised questions as to the integrity of the Board and a staff member.  As a result after consultation with the Association's Solicitors he instructed the racecourse Inspector to lodge the charge previously detailed against Ms Edlin for breach of Rule 88.1 (q).

2.3        The postings on Race Café to which Mr Kennerley referred in his evidence and which gave rise to the charge against Ms Edlin are set out for convenience in chronological sequence in a Schedule to this decision.  The postings were admitted into evidence as Exhibits 13 and 14 and are so identified in the Schedule.

2.4        Under cross examination Mr Kennerley was taken through the various postings by Counsel for Ms Edlin.  He acknowledged, as he had done in his evidence in chief, his name was not mentioned in the posts and that he had assumed the allegation of an affair referred to him and the staff member whom he named.  It was put to him in cross examination, the posts could equally have applied to a married couple who were employed by the Association at the time the posts appeared on Race Café.  Mr Kennerley did not accept that proposition and maintained his view the references were to him and the staff member.  Mr Kennerley was also questioned about the dismissal of another member of the staff, whom we will refer to as "D" which occurred just prior to the posts appearing on Race Café.  It was put to him the essence of the posts were concerns and criticism of the Association over the dismissal of "D".  Mr Kennerley accepted there could be no concern about legitimate criticism appearing on Race Café in relation to the dismissal, but took the view the criticism went beyond what was acceptable by making attacks on the professionalism and integrity of staff in the management of the Association's affairs.

2.5        The second witness for the Association was Ms Carla Gardiner, who said that until 8 January 2010 she was employed by the Association as its Business Support Manager.  She said she too was alerted to the posts on Race Café in early July 2009.  She checked the posts and formed the view the theme of those she read at that time were similar, alleging impropriety within the office of the Association.  She reported the matter to Mr Kennerley and provided him with copies of the posts concerned.  She said that over the next week or so a further series of posts appeared on the subject of "D" and she produced in evidence the posts published on Race Café between 30 June 2009 and 9 July 2009 set out in the Schedule annexed to this decision.

2.6        Ms Gardiner was then taken to the posts concerned and as with Mr Kennerley, conceded that whilst the posts contained no reference to her by name, she believed it was reasonable to assume that she was the staff member referred to. She said the tenor of the posts raised serious questions about the integrity of people involved with the Association and the impacts the claimed mismanagement and alleged affair could be causing for staff of the Association and industry alike.  She denied she had ever had an affair with Mr Kennerley.  She too believed the postings on Race Café brought the industry into disrepute by implying the Chief Executive and the staff were unprofessional, unethical, lacked integrity and were not capable of filling their job requirements.  She also said she believed she had been defamed, both professionally and personally.

2.7        Under cross examination Ms Gardiner agreed the relevant postings began after the dismissal of "D" and that the principal theme of the postings was that dismissal and inefficiencies within the office.  Ms Gardiner was adamant that two specific posts, numbers 8 and 13, referred to her.  She said this was the case because of her involvement in the events and process which led to "D" being dismissed.

2.8        The third witness for the Association was Mr Keith Coppins who is the Association's Training and Development Manager.  He said that on the 29^th June 2009 following the dismissal of "D", he was asked by Mr Kennerley if his wife could fill in by attending to a number of routine matters that were left after "D" departed.  He said his wife then worked on a casual basis a couple of days a week until about the middle of September 2009.  He said there was never any suggestion his wife would be taken on as a fulltime employee.  Mr Coppins evidence concluded the evidence for the Association.

2.9        Mr Tannahill then called Ms Edlin to give evidence.  She said she was a licensed owner/trainer under the Rules and had been involved in the Greyhound racing industry for about 4 ½ years.  She said she was currently on the Board of the Manawatu Greyhound Racing Club and was passionate about the industry.  She told the Tribunal she had also been a track photographer for about 3 years and that activity along with training of greyhounds provided her only sources of income.  She acknowledged that each of the postings under the non-de-plume D'Bandross on the Race Café previously referred to and produced in evidence were prepared and posted on the site by her.

2.10          In explanation for the postings, Ms Edlin said she had concerns about the administration of the Association arising from the dismissal of "D".  She said she had had dealings with "D" over a long period of time and found her efficient and friendly.  She had met her on one occasion at an awards dinner in Wanganui in October 2009.  Ms Edlin said she was a registered member of Race Café which meant she was able to publish posts on the site and she had done so in relation to a number of issues which had caused her concern since July 2009.  She said the matters which formed the substance of the charge began with the dismissal of "D" after she had read on the Race Café's site a post from someone called "Clarkie" to the effect "D" was no longer with the Association and that he/she had found her a neat person to deal with and wished her well for the future.  Ms Edlin said she agreed with the sentiments recorded in Clarkie's post which led to her post number No.13 put on the site on 30 June 2009.  The content of that post is shown in the Schedule attached to this decision.  Ms Edlin said the reference to "her" in that post referred to the person who had made the allegations which led to the dismissal of "D". She said she was so concerned about the circumstances of "D's" dismissal she then initiated a petition, addressed to Mr Kennerley asking for "D" to be reinstated.

2.11          She was then taken by Counsel through post numbers 38, 46, 50, 57 and 59 (all contained in the Schedule), which she said referred to the petition she had initiated.  In relation to post number 61 she claimed these were just comments about the industry in general which she made because she became aware the Head Office of the Association was monitoring the thread.  She said posts 64 and 70 which followed were similarly general comments about the industry.

2.12          Ms Edlin was then referred to the various posts which comprised Exhibit 14.  In relation to the final paragraph of post 2, she said the reference to a relationship in that paragraph referred to the relationship between Mr and Mrs Coppins and the employee referred to  was "D". She said the post was effectively asking the question whether "D's" dismissal was for the purpose of creating a position for Mrs Coppins.  Referred to post number 5 of Exhibit 14, she said the relationship referred to in that post again referred to the marital relationship between Mr and Mrs Coppins but she had not named them because she did not want to embarrass them. Ms Edlin said none of the postings referred to Mr Kennerley, despite his views to the contrary, and that she had not intimated or implied in any of the postings he was having an affair.  She did not accept the views of Mr Kennerley or Ms Gardiner in relation to the implications they had drawn from the various postings to the effect it was alleged they were having an affair.  Ms Edlin then referred to an email she sent to Mr Kennerley in August 2009 complaining about the specifics of the charge brought against her, and concluded her evidence in chief by saying the various postings she had made on the Race Café site were merely raising questions about the dismissal of "D" for  which she wanted responses from the Board.

2.13          Under cross examination by Mr Carmichael Ms Edlin confirmed that she had been registered with the Race Café site since 2007 and when referred to a document containing the Rules and policies of the site about free speech, produced as Exhibit 16 C, she said she had "skimmed" the document when she joined the site.  In answer to an inquiry about how she became involved in the issue over "D's" dismissal, she said she had been told by other staff members about it and that there had been problems within the Association office before "D" left.  She said her concern about "D's" dismissal, and that of others similarly concerned, led to a group getting together to look into the matter further, as she put it.  She claimed it was her business to support "D" because of what she had  done for the group.

2.14          Referred by Mr Carmichael to post 13 of Exhibit 13, Ms Edlin said the references in the post were to Ms Gardiner, Mrs Coppins and a person by the name of Lewer.  She said the reference to "a weak willied one" was a reference to Mr Coppins who did not stand up for "D" and "the green eyed one" was a reference to Ms Gardiner.  She said the reference to singing a song on the day you choked on that malicious forked tongue" was a reference to Ms Gardiner.  Referred to the word "Deeds" in the post by Mr Carmichael she claimed that did not refer to Mr Deed the Chairman of the Board but rather to Mr Coppins.  She said that arose from the fact Mr Coppins had apparently supported allegations made against "D", knowing they were not true.  She said  Mr Coppins had offered to support "D" but then turned around and "backed up" allegations that had been made by Ms Gardiner.  She said the person Lewer was in a similar position to Mr Coppins; hence the implied reference in the post to her.  She accepted that what she had written in the post was based on hearsay received from others in the office.  Mr Carmichael then referred Ms Edlin to post number 38 of Exhibit 13.  She explained that post by saying it was opinion based on the feelings of the people who comprised the group supporting "D".  Ms Edlin explained she knew there was likely to be mediation and that the reference in the post to "stopping the rot" was to the high turnover of staff within the Association and that good people were being lost without justification.  Referred to post number 51 of Exhibit 13 she accepted what was contained in the post could be taken as referring to Mr Kennerley and with reference to post 59 of the same Exhibit, she said the point she was endeavouring to make was that the deficiencies in the Association extended across the whole management structure and operation.

2.15          Mr Carmichael then took Ms Edlin to the posts comprising Exhibit 14.  In relation to the second paragraph of post number 2, she said the relationship referred to in that paragraph was one in which the parties were not married to each other but that she did not know whether it involved a sexual relationship.  She maintained the comments contained in this post were simply a response to the preceding post by "Umbrage" and what he/she said in that post.  Re-examined by Mr Tannahill Ms Edlin produced a statement from Joanne Bull dated 15 May 2009.  The statement from Ms Bull outlines in some detail the reasons for her leaving the Association on 22 August 2008 and various concerns she had about the way the office was run by Mr Kennerley.  In summarizing why she had posted the various posts referred to in evidence on the Race Café site, Ms Edlin said that had become the face of the group concerned about "D's" dismissal and that her expressions of concern reflected the views of the group.  She completed her evidence by saying she did not think the posts read in context with the other posts to which they responded would affect the image of the GRNZ in the eyes of people who read them.

2.16          At the conclusion of evidence a timetable was put in place for Counsel to provide submissions to the Tribunal.  Those submissions have now been received and considered accordingly.

3.   Tribunals Approach: Standard of Proof:

3.1       Although this is an appeal under the Rules, given the Order made by the Tribunal on 12 February 2010 it should proceed as a de novo hearing and our uncertainty as to the precise reasoning of the Judicial Committee in reaching the decision under appeal, we have concluded the most appropriate way to deal with the appeal is to reach our own independent conclusion as to whether or not the charge has been proved on the evidence put before us, and only if we find the charge made out on that evidence should we dismiss the appeal against the Judicial Committee's finding in that respect.  In adopting that approach we have applied the civil standard of proof appropriately adjusted to reflect the nature and seriousness of the charge brought against the appellant.

3.2       The issue of the appropriateness of the penalty imposed by the Judicial Committee, if it arises, is to be dealt with under conventional Appellate principles but subject to our own findings in relation to the charge should the appeal in that respect fail.

4.   Discussion:

4.1        In evidence Ms Edlin admitted she was responsible for the postings on the Race Café over the period 30 June 2009 to 7 July 2009 identified in the attached Schedule as having been posted under the non de plume D'Bandross.  That being so, in terms of the charge brought against her, the critical issue is whether the postings were detrimental to the interest, image, control or promotion of greyhound racing, leaving aside for the moment issues relating to s.14 of the New Zealand Bill of Rights Act 1990.  Those issues will not arise if the critical allegation is not otherwise proved.  The onus is on the Respondent association to prove the allegation of detriment to the interest, image, control and promotion of greyhound racing to the required standard.

4.2       In their submissions Counsel have referred to the meaning to be attributed to the word detrimental.  Acknowledging as they have the term is not defined in the Rules we are of the view the term is required to be given its natural and ordinary meaning except to the extent the context in which it appears in R.88.1 (q) may suggest otherwise.  The relevant dictionary definition of the term detrimental refers to things harmful, injurious or prejudicial which within the context of what seems to be the intent of R.88.1 (q) would seem to be an appropriate meaning for present purposes.

4.3       Whether or not the particular posts under consideration were detrimental in that sense to the interest, image, control or promotion of greyhound racing we think is to be determined first on what is a reasonable reading of what is expressed or implied in the posts, within the context of others to which the posts responded or followed.  Although two of the Respondent's witnesses were permitted to express in evidence their personal views of the effect of the relevant posts, their views are not, and cannot be determinative.  The exercise is an objective one based on what a reasonable reader of the posts would regard as expressed or implied in them.  The issue is then whether, applying the required standard of proof, the posts are detrimental to the interest, image, control or promotion of greyhound racing.

4.4       The relevant posts and the context in which they appeared on the Race Café site are shown in the attached Schedule.  Ms Edlin's explanation of them is as set out previously.  In short, she maintains the posts are expressions of her (as the face of her group) legitimate concerns about the administration of greyhound racing within the office of the Association following the dismissal of "D".  She denies the posts were, or were intended to be anything more than that; and she denies the posts were in any way intended to demean or denigrate the Association or persons working within it.

4.5       We turn to the relevant posts.  As will be seen the first post in Exhibit 13 from "Clarkie" on 30 June 2009 refers to the fact "D" was no longer employed by the Association.  There then follows a series of further posts on the same day leading up to the post by Ms Edlin at 7:03 pm numbered 13.  The posts which precede No.13 are in parts indirectly critical of the Association including its Chief Executive Officer and Chairman asserting in general terms a lack of competence or ability on the part of those identified to carry out their particular jobs.  At the same time the posts express sympathy for "D" for her sacking from the Association and express regret she was no longer working there.

4.6       The first post from Ms Edlin at 7:03 pm (No.13) follows up the theme of "D's" sacking by expressing surprise she had gone from the Association and then suggests by reference to "skullduggery" and the "one with greeneye and malicious forked tongue" casting "her spell on the beguiled, weak-willyed one" that "D's" sacking was the product of some kind of maliciously inspired arrangement between the persons referred to.  Those persons are not identified in the post but in evidence Ms Edlin said the references were to Ms Gardiner and Mr Coppins respectively.  Despite the lack of identification of the persons concerned in the post we are satisfied a reasonable reader of that post, in context with those which preceded it, would regard the post as an allegation the sacking of "D" was orchestrated by others within the Association for reasons of malice rather than those which might properly have justified such action.  That view is reinforced by the second paragraph of the post which refers to the "greeneyed one" choking on that "malicious forked tongue".

4.7       The posts which followed No.13 generally, in various ways, continued the themes of incompetence in the management of the Association and sympathy for "D" which preceded it.  On 2 July 2009 Ms Edlin returned to the theme with a further post which advised of two petitions in circulation.  The first petition sought a Ministerial Inquiry into what was said in the post to be the "(miss) management of the NZGRA and its Board" and the second petition sought the reinstatement of "D" on the basis her dismissal was "definitely not due to poor performance".  The post went on to urge readers to "stop the rot".  The claim "D" was not dismissed for poor performance allied to the reference to stopping the rot, we are satisfied would be read as a continuation of the assertion in the  previous post (No.13) that "D's" dismissal was maliciously inspired, rather than for justifiable reasons and that this resulted from the perceived incompetence and mismanagement within the Association.  This was followed by a further post by Ms Edlin on 5 July 2009 addressed to licenced persons and clubs soliciting support for the petitions referred to and seeking complaints from others concerning the administration and management of the "governing body and Board".  An inquiry from another user of the site concerning support for "D" drew a response from Ms Edlin (No.51) which referred to licenced persons and clubs being treated with contempt by the Association and Board and asking the question rhetorically whether the same contempt extended to those within the Association office.

4.8       A post from a person called Acquaman on 6 July 2009 (No.55) inquiring why the petition did not concern what were claimed to be daily breaches of the drug rules drew a response from Ms Edlin in post No.59 in which she identified one of the issues needing to be addressed as the mismanagement of funds.  She asserted in the post there needed to be an investigation into the whole "kit and caboodle" as she put it.

4.9       The relevant posts in Exhibit 14 begin with a post by a person using the non de plume "Umbrage" (No.1) in which he refers to his reading of what should be "no-nos in a working place".  He goes on to record that number one is the "striking up of any relationship beyond friendship between a boss and an employee" which he observes nearly always ended in squabbles and mistrust.  He concludes the post by asking the question what that reminded the reader of.  This is followed by a post (No.2) from Ms Edlin picking up the theme of romantic relationships between work colleagues.  In the post, and in that context, she refers to a relationship which previously existed within the greyhound industry which was seen by "those in power" as a conflict of interest or a potential conflict which resulted in the dynamics of the relationship being altered following the issue of a directive.  She then goes on in the post to question why the "powers that be" had not applied the "same logic" to a situation she claimed currently existed within the Wellington office and further questioned the sanctioning of such a relationship and the effect it may have had on those working in the office.  She concludes the post by asking (rhetorically) whether the relationship had any bearing on the "recent dismissal" of an employee, which Ms Edlin acknowledged in evidence was a reference to "D".  She claimed the relationship she referred to in the post was that of Mr and Mrs Coppins but in context and read with the prior post of "Umbrage" we do not accept that explanation.  Rather we think the reasonable reader would take the reference to the "situation" existing within the Wellington office as referring to a different, allegedly illicit relationship between persons within the office.  For what it is worth that woul

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