Appeal P McKenzie v RIU – Decision as to Costs dated 26 November 2013

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decisiondate: 30/11/2013

hearing_title: Appeal P McKenzie v RIU - Decision as to Costs dated 26 November 2013

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appealdecision: NO LINKED APPEAL DECISION

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Decision:

Between :

Peter McKenzie

Appellant

And :

Racing Integrity Unit

Respondent

Before: Judicial Committee: Hon Sir John Hansen KNZM, Chair – Professor Geoffrey Hall

Appellant: Mr McKenzie in person

Respondent: Mr M Colson

Decision as to Costs

1. In accordance with our decision both parties filed memoranda as to costs. We asked the registrar to approach the appellant to see if he wished to respond to the respondent’s memorandum. By this stage the time set for filing a reply had passed. We have heard nothing further and in the circumstances consider we need to proceed on the basis of the documents filed.

2. In his memorandum the appellant attempts to relitigate the whole matter again. He properly points out that we were in error in the 4th sentence in par 17 of our ruling. We accept no such evidence was called. However, he had the opportunity to call such evidence in front of us and did not do so. The fact also remains that a great deal of time in the hearing below (evidenced in the decision) was directed towards the existence, or otherwise, of the “like for like” policy. As we pointed out the policy is irrelevant for present purposes. The sole question was whether the appellant’s words and actions amounted to misconduct in the context of the charge. Whatever the appellant’s chagrin his behaviour was misconduct, albeit at the bottom end.

3. The hearing below was lengthy. Costs are discretionary. We see no error of principle in the approach taken by the Non-Raceday Judicial Committee, nor do we see grounds to interfere in the exercise of their discretion. The appeal against the cost and disbursements ordered by that committee is dismissed.

4. In relation to costs before us it appeared that the parties had agreed a sensible outcome and a draft memorandum to that effect was filed on the 13th September. However, the appellant changed his mind and his agreement was withdrawn. Its terms were more favourable than the outcome of the appeal. However, the appeal was dealt with expeditiously by both parties. As well if the transcript had been available Mr Zarb would not have had to attend. In those circumstances there should be costs to the RIU of $500. While less than actual costs of the JCA we consider the appropriate award to the JCA, in all of the above circumstances, is $500.

Sir John Hansen                  Professor Geoff Hall

Chair                                 Member of Tribunal

26 November 2013

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