hearingid: 1009ad368b0d13eefc0634d384cd4ada

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: Appeal - P McKenzie v NZTR 21 September 2009 decision

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BEFORE THE APPEALS TRIBUNAL

HELD AT CHRISTCHURCH

IN THE MATTER OF            New Zealand Thoroughbred

                                                Rules of Racing

BETWEEN                            PETER MCKENZIE

                                                Appellant

 AND    

                                                STEWART CHING

                                                Respondent

On 25 August 2009 we issued a Minute which sets out the background of this case.  We have now received and read written submissions from the parties.  The issue is a simple one – does the appellant in the circumstances have a right of appeal? 

BEFORE THE APPEALS TRIBUNAL

HELD AT CHRISTCHURCH

IN THE MATTER OF            New Zealand Thoroughbred

                                                Rules of Racing

BETWEEN                            PETER MCKENZIE

                                                Appellant

 AND                                       STEWART CHING

                                                Respondent

On 25 August 2009 we issued a Minute which sets out the background of this case.  We have now received and read written submissions from the parties.  The issue is a simple one – does the appellant in the circumstances have a right of appeal? 

Appellant’s submissions

In essence, the appellant submits that as the originating Information refers to Rule 1102(a)(iii) (there is no such Rule) the appeal falls under an exception to, or is outside Rule 1201(1)(f).  That latter rule sets out the matters against which no appeal shall lie but does not include a start in a race where a horse or horses are prevented, by mechanical failure of the starting stalls, from participating in the race.  The appellant accordingly submits that in the circumstances of this case there is a right of appeal against a Judicial Committee decision declaring a race void because Rule 1201(1)(f) makes no reference to such a start (although it makes mention of other starts) and it follows that the appeal is not in respect of a decision made under Rule 864(5). 

The appellant also submits that the starter’s manual which is a directive issued to starters, ought to have been referred to by the Judicial Committee and further submits that in any event Rule 864(5) “is confusing in the extreme”.  The appellant’s submissions covered a number of other matters which we do not find it necessary to discuss.

Respondent’s Submissions

In summary, the respondent submits that this is a purported appeal against a decision made by the Judicial Committee under Rule 864(5) and accordingly there is no right of appeal.  In the alternative the respondent submits that Rule 864(5) is a rule of specific application whereas Rule 1102(2)(a)(iii) simply confers a general discretion.  Rule 864(5) prevails and there is again no right of appeal.

Discussion

Rule 1201(1)(a) reads:

No appeal shall lie against any decision declared to be final in these rules.

And Rule 864(5) reads:

Except as provided in Rule 861(3) where the horses are started in front of the starting post or the race is run over the wrong distance of where the race has been run on a wrong course or before the appointed time or where any horse or horses is prevented by mechanical failure of the starting stalls from participating in the race, the Judicial Committee shall have an absolute discretion to determine whether the race shall be deemed to have been run or to be void.  Provided, however that in exercising such discretion the Judicial Committee shall have regard to the degree of variation from the advertised length of the race and to the interests of the public who have invested on that race.  In any case where the race has been declared void the horses may be started again as soon as possible.  The decision of the Judicial Committee on any such matter shall be final and subject to no appeal.  In all other cases the Starter’s decision as to whether or not a proper start has been effected and to any other matter in connection with the start shall be final and subject to no appeal.

Contrary to the appellant’s submission, we are satisfied that although Rule 1102(2)(a)(iii) (mistakenly stated as 1102(a)(iii)) was referred to in the Information, the relevant Rule is Rule 864(5).  Reference to Rule 1102 (2)(a)(iii) in the Information was not incorrect but as a standard of perfection (not attainable on a busy race day) the references ought to have been to both Rule 1102(2)(a)(iii) and Rule 864(5).  It is of no consequence that no reference was made to Rule 864(5).  That is a matter of form only.  Rule 1102(2)(a) simply sets out the general functions of the Judicial Committee i.e. that it has various powers including the power to declare a race void.  We are satisfied that power can only be exercised when it is founded in the substantive Rules e.g. Rules 864(5) and 877.  Those rules establish when and in what circumstances the power is to be exercised.  It cannot be on a proper interpretation of the Rules a power of unlimited or unrestricted application.  Accordingly, Rule 1102(2)(a) could be described as procedural relating to the processes of the Judicial Committee rather than to substance and on its own could not be the subject of an Information nor grounds for an appeal. 

Furthermore, the appellant’s submissions would require this Tribunal to interpret Rule 1201(1)(f) as if it included a provision to the effect that an appeal shall lie where there is a start in a race where a horse or horses is/are prevented by mechanical failure of the starting stalls from participating in the race.  The Rule, of course, does not say that and we are satisfied such an interpretation is not permissible because Rule 1201(1)(a) specifically provides for the situation arising under Rule 864(5). 

This was a situation “where any horse or horses is prevented by mechanical failure of the starting stalls from participating in the race.”  The fact that two starting gates did not open in our view is sufficient evidence from which The Judicial Committee could draw the inference that there was a mechanical failure.  Once a horse or horses are so prevented, and this was the position here, the Judicial Committee had “an absolute discretion to determine whether the race shall be deemed to have been run or to be void”. 

Reference to the Starter’s Manual might have been more relevant if this Tribunal was considering the merits but in any event we do not accept the appellant’s submissions that the manual should have been referred to by the Judicial Committee.  First, it is a directive to starters, not to Judicial Committees.  Secondly, it would not have the force of a Rule or Regulation made under the Rules, it being a directive only and it does not take precedence over Rule 864 (5).  Furthermore, this was a case where although two starting gates did not open, the starter did not declare a false start and it is only in those circumstances that the Judicial Committee is able to deal with the matter under Rule 864(5).  Until the Judicial Committee declared the race void there was a race.  Reference to the Starters Manual could not alter that. 

Whilst the mechanical failure of the starting stalls in respect of a horse or horses gives the Judicial Committee jurisdiction, that fact is not the only matter to be taken into consideration by that Committee in reaching its decision.  This is made clear by the use of the words “absolute discretion”  and reference to the exercise of that discretion in Rule 864(5). 

Once the Judicial Committee accepted the Information and conducted a hearing on a principled basis under Rule 864(5) (and that we find is the case here) its decision is final and cannot be appealed.  That is what the Rule says confirmed by the provisions of Rule 1201(1)(a).

We do not accept the appellant’s submission that Rule 864(5) is confusing in the extreme.  The rule is clear.  It means that if, relevantly, a Judicial Committee has jurisdiction to consider an information i.e. “where any horse or horses is prevented by mechanical failure of the starting stalls from participating in the race” then any decision made by the Judicial Committee is final and not subject to appeal.  In cases where the Judicial Committee has no jurisdiction to be involved then the starters’ decisions (including the declaring of a false start) are also final and not subject to appeal.  We do not consider that Rule 864(5) is void for uncertainty if that is what the appellant is submitting. 

Generally we accept Counsel for respondent’s submissions contained in paragraphs 1 – 15 inclusive and we do not find it necessary to discuss the remainder of his submission.  We are satisfied that the Judicial Committee had jurisdiction to consider the Information as filed.  We are satisfied that the Judicial Committee acted under Rule 864(5) and we are satisfied that the Committee’s decision is final and there is no right of appeal. 

We have not been addressed as to costs and disposition of the filing fee.  If they are an issue, written submissions are to be filed within the next fourteen days. 

Result

(a)               The appeal is struck out.

(b)               Costs reserved

Judge J Bisphan            J Phelan

Chairman                        Tribunal Member

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hearing_type: Old Hearing

Rules: 1102.a.iii, 1201.1.f, 864.5, 1102.2.a.iii, 1201.1.a, 861.3, 1102.2.a

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