Appeal RIU v C Lunn – Decision dated 30 April 2012

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decisiondate: 06/05/2012

hearing_title: Appeal RIU v C Lunn - Decision dated 30 April 2012

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Decision:

BEFORE THE APPEALS TRIBUNAL

IN THE MATTER of the New Zealand Thoroughbred Rules of Racing

BETWEEN ANDREW RAY

Appellant

AND CASEY LUNN

Respondent

Appeals Tribunal: Bruce Squire QC (Chairman) - Ms Nicki Moffatt

DECISION OF APPEALS TRIBUNAL

Introduction:

1. In a Reserved Decision delivered on 14 March 2012 a Judicial Committee duly constituted under the New Zealand Thoroughbred Rules of Racing (“the Rules”) found a charge brought against Ms Lunn under Rule 636 (1) (b) of the Rules proved. The charge alleged that as the rider of a horse named “Chillydip” in Race 6 at the Greymouth Jockey Club’s meeting at Omoto on 14 January 2012 she failed to take all reasonable and permissible measures during the race to give the horse full opportunity to win or obtain the best possible placing. As a result Ms Lunn was suspended for a period of four weeks commencing on 21 February 2012 up to and including 12 March 2012. The period of suspension encompassed seven riding days.

2. Following the Decision of the Judicial Committee the Racing Integrity Unit (“the RIU”) sought an award of costs representing the actual costs incurred in prosecuting the charge. The amount sought was $583.00 made up of transcription costs of $210.00 and one half of the airfares of the Chief Stipendiary Steward who attended the hearing to give evidence. The Judicial Committee deferred its decision on costs to enable written submissions to be filed. Submissions were duly made by the RIU but Ms Lunn declined to file any. In its Decision of 14 March 2012 the Judicial Committee refused the RIU’s application for costs. The reasons for its refusal are set out in paragraphs [57] to [60] of its Decision which we set out in full as follows:

“[57] The charge in this case arose from a raceday riding breach by Miss Lunn of the Rules of Racing. Of course, she had the right to defend the charge and put the Informant to the task of proving his allegation to the Committee’s satisfaction and to present her defence to the charge before a Judicial Committee. Miss Lunn elected to defend the charge, albeit unsuccessfully.

[58] It is a well-accepted principle that an Informant is entitled to recover costs at the discretion of the Judicial Committee, against a Respondent who unsuccessfully defends a charge in the nature of disciplinary proceedings such as drug-related charges, misconduct or the like. However, in the view of the Committee it is not the practice of Judicial Committees to award costs to a successful Informant in a case arising out of a riding charge. This is the case whether the charge is defended or not and whether it is heard on a raceday or not. The Committee is not aware of a single case where costs have been so awarded.

[59] A jockey must be given the right to defend a raceday riding-related charge, whether heard on the raceday or not, without fear that an award of costs will follow an unsuccessful defence.

[60] In this case, the Racing Integrity Unit elected not to charge Miss Lunn on raceday but rather to continue to investigate the matter and subsequently file an information to be heard as a non-raceday hearing. The charge could have been brought on the day and Miss Lunn may have elected to have it heard on that day. In that case, quite clearly, the issue of costs would not have arisen. Miss Lunn should not be required to pay costs in these circumstances.”

3. The Appeal now brought by the RIU is against the refusal of the Judicial Committee to award costs.

4. Both the RIU and Ms Lunn were directed to file written submissions in support of or opposition to the Appeal. Submissions have been received from the RIU but Ms Lunn has indicated she has no submissions she wishes to put before the Appeals Tribunal.

The Power to Award Costs:

5. The Judicial Committee’s power to award costs is conferred by Rule 920 (3) in terms which are discretionary and unqualified in the sense the Rule contains no express or implicit presumption either way. Nonetheless the discretion is required to be exercised on a principled basis.

6. In as much as the Appeal seeks to attack the exercise of a discretion by the Judicial Committee, applying standard appellate principles this Tribunal may only differ from the decision reached by the Judicial Committee if there has been an error of principle by the Committee or a failure on its part to take account of some relevant consideration.

The Decision of the Judicial Committee:

7. It is apparent from paragraphs [57] to [60] of the Judicial Committees Decision set out earlier in this Decision that in deciding to refuse the RIU’s application for costs, the Judicial Committee was influenced essentially by two factors:

(a) what it called the practice of Judicial Committee’s not to award costs to a successful Informant on a riding charge, whether or not the charge was defended and whether or not it was heard on a raceday or subsequently. The Committee said it was not aware of a single case where costs had been “so awarded” and observed that had the charge been dealt with on raceday no issue of costs would have arisen;

(b) a jockey must be able to exercise his or her right to defend a raceday riding related charge without fear an unsuccessful defence would attract an award of costs.

The Committee noted however that it was what it called “a well-accepted principle” that an Informant was entitled to recover costs at the discretion of the Judicial Committee against a Respondent who unsuccessfully defended disciplinary proceedings in the nature of drug related charges, misconduct or the like.

Discussion:

8. As we have noted earlier Rule 920 (3) and the discretion it confers is drawn in what might be described as neutral terms. Neither the language used in the Rule itself or anything else in the Rules expressly or implicitly qualifies the exercise of the discretion conferred by the Rule. Specifically there is nothing in the Rules which suggests any intention the discretion to award costs conferred by Rule 920 (3) is not intended to apply to cases involving riding charges, whether heard on racedays or subsequently. In its Decision the Judicial Committee said it was not the “practice” to award costs to an Informant in cases arising out of riding charges. We doubt that is so because there are instances where costs have been awarded to an Informant in such cases (J) (March 2007)), but even if it was we do not think it was legitimately open to the Judicial Committee, as a matter of interpretation, to circumscribe the discretion conferred by Rule 920 (3) in that way by declaring the power to award costs to Informants under the Rule did not extend to cases involving riding charges whether heard on raceday or not. The effect of such a finding is to read into the Rule a qualification to the discretion conferred which is not apparent on the face of the Rule or engrafted on to it by any necessary implication. With respect we are of the view the Judicial Committee was wrong as a matter of principle in interpreting and applying Rule 920 (3) in that way.

9. Neither is the observation made by the Judicial Committee in para [59] of its Decision, set out earlier, a proper justification for reading down the application of Rule 920 (3) in the manner the Committee did in this case. As we have said, the Rule does not preclude costs being awarded to an Informant in the discretion of the Judicial Committee, exercised on a principled basis, in cases where jockeys unsuccessfully defend riding related charges, and it must accordingly be accepted that an award of costs may be one possible outcome for a jockey in such cases. To circumscribe the discretion conferred by Rule 920 (3) for the reasons given by the Judicial Committee in para [59] of its Decision involves the same error of principle as identified in paragraph 9 above.

10. For the reasons we have set out we are satisfied the Judicial Committee erred in refusing the application for costs made by the RIU on the grounds set out in paras [57] to [60] of its Decision and pursuant to Rule 1007 (1) (b) we set aside that decision.

11. Under Rule 1007 (2) (d) this Tribunal may exercise any power the Tribunal whose Decision is appealed against might have exercised. Accordingly we have the power to determine the issue of costs ourselves. Ordinarily in circumstances where, as here, the Judicial Committee did not properly address the issues which bear on the exercise of the discretion to award costs we would refer the matter back to the Judicial Committee for further hearing and determination under Rule 1007 (1) (f). However we see little point in adopting that course in this instance. Ms Lunn and those representing her did not avail themselves of the opportunity to make submissions on the issue of costs to the Judicial Committee when given the opportunity to do so and she has elected to make no submissions to us on this Appeal. Referring the matter back to the Judicial Committee will not likely persuade Ms Lunn to adopt any different position and in terms of the submissions made to us by the RIU, we are in as good a position as the Judicial Committee to determine the matter.

12. In approaching the exercise of the discretion conferred by Rule 930 (2) we are guided by the observations of the Judicial Committee in NZTR v McA (17 March 2011) (para 5.2) and of the Appeals Tribunal in the case of B v RIU (21 December 2011). The latter case involved an issue as to costs under Rule 1114 (3) of the New Zealand Rules of Harness Racing. Rule 1114 (3) is couched in terms not dissimilar to Rule 920 (3) and some of the observations of the Appeals Tribunal in that case have application, in our view, to the exercise of discretion under Rule 920 (3).

13. In B the Appeals Tribunal noted that costs awards under the Rules of Racing are generally relatively modest, particularly in respect of breaches of riding obligations of jockeys or the driving obligations of reinsman in harness racing. On the other side of the equation we bear in mind what was said by the Judicial Committee in the McA case that:

“…there seems no compelling reason in principle why those whose conduct has led to the institution of disciplinary procedures should not, within limits, bear the expense of those procedures if they are ultimately found to have breached the Rules as charged. Obviously given the nature and intended width of the discretion conferred by Rule 930 (3) that factor will not necessarily be the only consideration to be brought to account in deciding to award costs or fixing the quantum in any case, but there seems no reason why that should not be the starting point for the exercise of the discretion in any given instance”.

14. In this case the RIU sought to recover only actual costs incurred as outlined previously in this Decision. The total amount sought was a relatively modest figure of $583.00. We are troubled by the fact that we have no information before us as to Ms Lunn’s means but that is a result of her decision not to put submissions before us or the Judicial Committee. We note however that she is an apprentice jockey of limited experience from which we can draw some inference as to her likely means. We note also no financial penalty was imposed by the Judicial Committee. Approaching the matter in the fashion indicated, and doing the best we can on the information before us we have concluded that an award of costs to the RIU is warranted in this case. There will accordingly be an Order under Rule 920 (3) that Ms Lunn is to pay costs to the RIU in the sum of $300.00.

15. Ms Lunn did not file submissions on this Appeal and has not otherwise participated in the Appeal despite being advised of it and invited to provide submissions. In the circumstances and because the Appeal involved an issue of principle, we do not consider there should be any award of costs on this Appeal against Ms Lunn, either to the RIU or the JCA and costs are to lie where they fall.

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Disposition:

16. In the result, for the reasons outlined:

(a) The decision of the Judicial Committee refusing to make an Order for costs in favour of the RIU is set aside;

(b) Ms Lunn is ordered to pay costs to the RIU in the sum of $300.00;

(c) There is no Order for costs on this Appeal.

Dated at Wellington this 30thth day of April 2012

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Bruce Squire QC (Chairman)
Signed pursuant to Rule 1007 (5)

hearing_type: Non-race day

Rules: 636(1)(b)

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