Appeal – L Innes (Costs)
ID: JCA23098
Hearing Type (Code):
thoroughbred-racing
Decision: --
The Appeal was conducted de novo and after hearing the evidence and submissions, the Tribunal dismissed the appeal and directed that Counsel should file and exchange submissions as to costs within 20 days of the date of the decision.
--
JUDICIAL CONTROL AUTHORITY FOR RACING
--APPEALS TRIBUNAL
--IN THE MATTER of an appeal by LEITH INNES
--against the severity of penalty imposed by the
--Judicial Committee on 21 January 2006
----
PARTIES:
--Mr Leith Innes, Appellant
--Represented by Mr A Shaw
--Mr LN McCutcheon, for NZTR, Respondent
--Represented by Mr MG Colson
----
APPEALS TRIBUNAL:
--Judge NF Smith, Chairman
--Professor GG Hall
--______________________________________________________________
--DECISION OF APPEALS TRIBUNAL AS TO COSTS
--______________________________________________________________
--This appeal was originally set down for hearing at Wellington but delayed for hearing at Palmerston North on the1st February 2006.
--The Appeal was conducted de novo and after hearing the evidence and submissions, the Tribunal dismissed the appeal and directed that Counsel should file and exchange submissions as to costs within 20 days of the date of the decision.
--Although Counsel for the Respondent complied with the directions re costs, Counsel for the Appellant did not respond until the 13th March and even then only in response to a reminder from the Executive Officer for JCA.
--Counsel for the Respondent traversed the various grounds for appeal set out in the successive memoranda of grounds for appeal filed by Counsel for the Appellant and submits that it was appropriate for the Respondent to instruct Counsel. We have no argument against that.
--Mr.Colson, for the Respondent, revisited the various grounds for appeal relied upon and argues that much was irrelevant and consequently what should have been a one-hour hearing took five hours.
--For those and other minor reasons alluded to in his submissions Counsel for the Respondent prays for orders for costs as follows:
--[a] $5,000.00 in favour of the Respondent;
--[b] The actual costs and expenses of the JCA; and
--[c] Mr Grant's actual travelling costs.
--This Tribunal is not swayed by any arguments that the time of the hearing has been unduly prolonged as parties are entitled to put their arguments and evidence before the Tribunal no matter how long it may take, but provided that the arguments, or the appeal itself, are not vexatious or frivolous. There has been no suggestion that such was the case in this instance.
--We are informed that the actual costs of the appeal hearing [ignoring the preliminary hearings relating to stay and the summoning of Mr. Grant to give evidence were as follows:
--Travel $872.00
--Expenses $161.00
--Appeal Tribunal $964.00
--Stenographer $326.00
--Total $2,323.00
--Mr. Shaw, for the Appellant in his submissions argued that costs should lie where they fall, or alternatively should be limited to a reasonable and just award applying the standard tariff conventionally applied by the Appeals tribunal in like cases.
--Counsel says further, that there is no justification to award the extravagant, excessive and non-particularised sums as claimed by the Respondent.
--In support of this, Mr.Shaw argued: " It is a well established principle of law of general application, that an award of costs- if it is to be made- should reflect what is reasonable and just in the circumstances. See generally, High Court Rules, rr46-48A-H."
--It is his contention that only a reasonable contribution should be made by an unsuccessful Appellant and that an award of costs should not be used to punish an Appellant who has failed to prove his case.
--Counsel for the Appellant argued that the grounds for appeal [particularly those relating to the power of Judicial Committees to defer suspensions under Rule 1305[2] of the Rules of Racing] raised important questions of principle and law and were properly raised.
--This Tribunal however has some difficulty accepting Mr Shaw's interpretation of the above Rule as being of any assistance to his client's case. That Rule permits deferment of suspension to enable riders to carry out their obligations in respect to races the time for acceptances for which fall due on the day the suspension is imposed or before that date. Mr. Shaw's client was seeking to complete rides the acceptances for which did not fall due until some time after the date the suspension was imposed.
--In his submissions Mr. Shaw challenged certain assertions made by Counsel for the Respondent but as those assertions do not carry much weight with this Tribunal there is no necessity to deal with them now. Mr Shaw also challenges the claim for costs of $5,000.00, as there are no specifics showing how that figure was arrived at. Further, he submits that any award to meet the costs of the JCA in conducting the appeal goes beyond that contemplated by Rule 1207[3].
--The claim for Mr Grant's travelling costs is also opposed.
--Finally Counsel states that the forfeiture of the filing fee is a matter that should be taken into account when fixing costs.
--Mr Colson has filed an answer to those submissions filed by Mr Shaw and this Tribunal has perused that memorandum and taken the matters set out therein on board.
--The jurisdiction of the Appeal Tribunal to award costs is clearly set out in Rule 1207[3] of the Rules of Racing which states:
--"The Appeals Tribunal may order that all or any of the costs and expenses of any party to the appeal, any person granted permission to be heard at the hearing by direction of the Chairman of the Appeals Tribunal, Thoroughbred Racing 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" [ The emphasis has been added.]
--With due respect to Mr Shaw, this Tribunal is therefore entitled to look at the question of expenses incurred.
--That an order for costs is warranted is beyond dispute and there only remains for this Tribunal to determine the quantum to be awarded.
--Dealing with the costs prayed by Counsel for the Respondent in the manner, in which he has cited them, this tribunal finds as follows:
--Claim for costs of $5,000.00 for the Respondent.
--The Tribunal accepts the argument that the sum has not been particularised and although in his answer to the submissions made by Counsel for the Appellant, Mr Colson stated: "?indemnity costs are not sought. The respondent's actual legal costs are well above the amount claimed." there is little in the submissions to commend an award of this figure.
--On the question of reimbursement of the actual costs and expenses of JCA, the figure quoted above must be varied. The total sum of $2323 includes the Appeals Tribunal's costs of $964, which presumably includes the payments made to the members of the Appeals Tribunal. They are costs that should ordinarily be borne by the regulatory body and not the Appellant.
--Otherwise the costs of appeal could become excessive discouraging parties from exercising the rights reserved to them under the Rules.
--Finally we come to the matter of Mr Grant's costs. He was summoned to appear by the Tribunal at the request of Counsel for the Appellant in terms of Rule 1214[1] of the Rules of Racing and although there is nothing in the Rules relating to witnesses expenses, it is normal, in ordinary jurisdictions, when issuing a summons on behalf of a party, that party is required to tender to the witness appropriate travelling expenses.
--Perhaps this Tribunal may have been remiss in not addressing this matter at the preliminary hearing when Counsel for the Appellant made his request.
--It is noted however that Rule 1214[2] makes it an offence not to answer a summons, and under the circumstances the tender of travelling expenses may not be required.
--Regardless of the merits or otherwise of this matter, Mr. Grant as Chairman of JCA should be available to assist when required although it is doubtful having heard the evidence given that his evidence was of any assistance to the Appellant's case and therefore his presence hardly warranted.
--Having given due consideration to the submissions of both Counsel, referred to the appropriate Rules of Racing and had the opportunity of perusing decisions of the Appeals Tribunal on similar appeals this Tribunal makes the following awards as to costs;
--Costs in favour of the Respondent, $1,000.00 .
--In favour of JCA, $750.00.
--There is no award in respect to Mr. Grant's travelling expenses.
--Dated at Tauranga this 20th day of March 2006.
----
Norman F.Smith
--Chairman
Decision Date: 01/01/2001
Publish Date: 01/01/2001
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
hearingid: ed1b3f66fdeec84efa43dc59da64cde9
informantnumber:
horsename:
hearing_racingtype: thoroughbred-racing
startdate: 01/01/2001
newcharge:
plea:
penaltyrequired:
decisiondate: no date provided
hearing_title: Appeal - L Innes (Costs)
charge:
facts:
appealdecision:
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
--The Appeal was conducted de novo and after hearing the evidence and submissions, the Tribunal dismissed the appeal and directed that Counsel should file and exchange submissions as to costs within 20 days of the date of the decision.
--
JUDICIAL CONTROL AUTHORITY FOR RACING
--APPEALS TRIBUNAL
--IN THE MATTER of an appeal by LEITH INNES
--against the severity of penalty imposed by the
--Judicial Committee on 21 January 2006
----
PARTIES:
--Mr Leith Innes, Appellant
--Represented by Mr A Shaw
--Mr LN McCutcheon, for NZTR, Respondent
--Represented by Mr MG Colson
----
APPEALS TRIBUNAL:
--Judge NF Smith, Chairman
--Professor GG Hall
--______________________________________________________________
--DECISION OF APPEALS TRIBUNAL AS TO COSTS
--______________________________________________________________
--This appeal was originally set down for hearing at Wellington but delayed for hearing at Palmerston North on the1st February 2006.
--The Appeal was conducted de novo and after hearing the evidence and submissions, the Tribunal dismissed the appeal and directed that Counsel should file and exchange submissions as to costs within 20 days of the date of the decision.
--Although Counsel for the Respondent complied with the directions re costs, Counsel for the Appellant did not respond until the 13th March and even then only in response to a reminder from the Executive Officer for JCA.
--Counsel for the Respondent traversed the various grounds for appeal set out in the successive memoranda of grounds for appeal filed by Counsel for the Appellant and submits that it was appropriate for the Respondent to instruct Counsel. We have no argument against that.
--Mr.Colson, for the Respondent, revisited the various grounds for appeal relied upon and argues that much was irrelevant and consequently what should have been a one-hour hearing took five hours.
--For those and other minor reasons alluded to in his submissions Counsel for the Respondent prays for orders for costs as follows:
--[a] $5,000.00 in favour of the Respondent;
--[b] The actual costs and expenses of the JCA; and
--[c] Mr Grant's actual travelling costs.
--This Tribunal is not swayed by any arguments that the time of the hearing has been unduly prolonged as parties are entitled to put their arguments and evidence before the Tribunal no matter how long it may take, but provided that the arguments, or the appeal itself, are not vexatious or frivolous. There has been no suggestion that such was the case in this instance.
--We are informed that the actual costs of the appeal hearing [ignoring the preliminary hearings relating to stay and the summoning of Mr. Grant to give evidence were as follows:
--Travel $872.00
--Expenses $161.00
--Appeal Tribunal $964.00
--Stenographer $326.00
--Total $2,323.00
--Mr. Shaw, for the Appellant in his submissions argued that costs should lie where they fall, or alternatively should be limited to a reasonable and just award applying the standard tariff conventionally applied by the Appeals tribunal in like cases.
--Counsel says further, that there is no justification to award the extravagant, excessive and non-particularised sums as claimed by the Respondent.
--In support of this, Mr.Shaw argued: " It is a well established principle of law of general application, that an award of costs- if it is to be made- should reflect what is reasonable and just in the circumstances. See generally, High Court Rules, rr46-48A-H."
--It is his contention that only a reasonable contribution should be made by an unsuccessful Appellant and that an award of costs should not be used to punish an Appellant who has failed to prove his case.
--Counsel for the Appellant argued that the grounds for appeal [particularly those relating to the power of Judicial Committees to defer suspensions under Rule 1305[2] of the Rules of Racing] raised important questions of principle and law and were properly raised.
--This Tribunal however has some difficulty accepting Mr Shaw's interpretation of the above Rule as being of any assistance to his client's case. That Rule permits deferment of suspension to enable riders to carry out their obligations in respect to races the time for acceptances for which fall due on the day the suspension is imposed or before that date. Mr. Shaw's client was seeking to complete rides the acceptances for which did not fall due until some time after the date the suspension was imposed.
--In his submissions Mr. Shaw challenged certain assertions made by Counsel for the Respondent but as those assertions do not carry much weight with this Tribunal there is no necessity to deal with them now. Mr Shaw also challenges the claim for costs of $5,000.00, as there are no specifics showing how that figure was arrived at. Further, he submits that any award to meet the costs of the JCA in conducting the appeal goes beyond that contemplated by Rule 1207[3].
--The claim for Mr Grant's travelling costs is also opposed.
--Finally Counsel states that the forfeiture of the filing fee is a matter that should be taken into account when fixing costs.
--Mr Colson has filed an answer to those submissions filed by Mr Shaw and this Tribunal has perused that memorandum and taken the matters set out therein on board.
--The jurisdiction of the Appeal Tribunal to award costs is clearly set out in Rule 1207[3] of the Rules of Racing which states:
--"The Appeals Tribunal may order that all or any of the costs and expenses of any party to the appeal, any person granted permission to be heard at the hearing by direction of the Chairman of the Appeals Tribunal, Thoroughbred Racing 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"
[ The emphasis has been added.]--With due respect to Mr Shaw, this Tribunal is therefore entitled to look at the question of expenses incurred.
--That an order for costs is warranted is beyond dispute and there only remains for this Tribunal to determine the quantum to be awarded.
--Dealing with the costs prayed by Counsel for the Respondent in the manner, in which he has cited them, this tribunal finds as follows:
--Claim for costs of $5,000.00 for the Respondent.
--The Tribunal accepts the argument that the sum has not been particularised and although in his answer to the submissions made by Counsel for the Appellant, Mr Colson stated: "?indemnity costs are not sought. The respondent's actual legal costs are well above the amount claimed." there is little in the submissions to commend an award of this figure.
--On the question of reimbursement of the actual costs and expenses of JCA, the figure quoted above must be varied. The total sum of $2323 includes the Appeals Tribunal's costs of $964, which presumably includes the payments made to the members of the Appeals Tribunal. They are costs that should ordinarily be borne by the regulatory body and not the Appellant.
--Otherwise the costs of appeal could become excessive discouraging parties from exercising the rights reserved to them under the Rules.
--Finally we come to the matter of Mr Grant's costs. He was summoned to appear by the Tribunal at the request of Counsel for the Appellant in terms of Rule 1214[1] of the Rules of Racing and although there is nothing in the Rules relating to witnesses expenses, it is normal, in ordinary jurisdictions, when issuing a summons on behalf of a party, that party is required to tender to the witness appropriate travelling expenses.
--Perhaps this Tribunal may have been remiss in not addressing this matter at the preliminary hearing when Counsel for the Appellant made his request.
--It is noted however that Rule 1214[2] makes it an offence not to answer a summons, and under the circumstances the tender of travelling expenses may not be required.
--Regardless of the merits or otherwise of this matter, Mr. Grant as Chairman of JCA should be available to assist when required although it is doubtful having heard the evidence given that his evidence was of any assistance to the Appellant's case and therefore his presence hardly warranted.
--Having given due consideration to the submissions of both Counsel, referred to the appropriate Rules of Racing and had the opportunity of perusing decisions of the Appeals Tribunal on similar appeals this Tribunal makes the following awards as to costs;
--Costs in favour of the Respondent, $1,000.00 .
--In favour of JCA, $750.00.
--There is no award in respect to Mr. Grant's travelling expenses.
--Dated at Tauranga this 20th day of March 2006.
----
Norman F.Smith
--Chairman
sumissionsforpenalty:
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penalty:
hearing_type: Old Hearing
Rules: 1305.2, 1207.3, 1214.1, 1214.2
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