Appeal RIU v L Innes – Decision of Appeals Tribunal as to Costs dated 7 March 2013

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decisiondate: 10/03/2013

hearing_title: Appeal RIU v L Innes - Decision of Appeals Tribunal as to Costs dated 7 March 2013

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appealdecision: NO LINKED APPEAL DECISION

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APPEAL HEARING : LEITH INNES v RIU
RULING ON COSTS
DATED THURSDAY 7 DAY OF MARCH 2013

APPEALS TRIBUNAL: Mr Murray McKechnie, Chairman and Mr Jeff Holloway

RULING ON COSTS FOLLOWING WITHDRAWAL OF APPEALS

1. On the 13 February at Ellerslie Mr Innes was charged with careless riding. He pleaded not guilty. Following an extended hearing the charge was found to be proved. Mr Innes was suspended for five (5) riding days, the suspension to commence following racing on Sunday 17 February and to conclude after racing on the 27 February this year.

2. On the 17 February at Ellerslie Mr Innes was charged with careless riding following Race 5. He pleaded guilty to the charge. A suspension of four (4) days was imposed to commence after racing on the 27 February and to conclude after racing on the 6 March this year.

3. Mr Innes appealed both decisions. Those appeal notices were received by the Registrar of the JCA at around 3.30p.m. on the 20 February this year. By that time the suspension imposed on the 13 February had already taken effect in that Mr Innes had not been able to ride at Pukekohe on the 20 February and there was a meeting to take place at Te Aroha on the 21 February. The Tribunal initially ruled that the appeal in respect of the suspension imposed on the 13 February was out of time. By a further ruling issued on the same day the 21 February 2013 the Tribunal reviewed the position and ruled that both appeals were within time. The Tribunal directed that the appeals would be heard at Matamata Racecourse on the morning of Saturday 23 February this year.

4. Mr Innes sought a stay of proceedings in respect of both suspensions. With reference to the appeal from the decision on the 13 February this year Mr Innes advised that the jockey Mr Cameron Lammas was in hospital. No indication was given as to when Mr Lammas would be able to appear at a hearing before the Tribunal.

5. The power to grant a stay is governed by Rule 1108. That reads as follows:

The filing of a Notice of Appeal shall not operate as a stay of the decision or of any disqualification or suspension appealed against unless, on a written application made to it, the Appeals Tribunal or its Chairperson otherwise directs.

6. The Tribunal was conscious of the upcoming Auckland Cup Carnival which commenced on Saturday the 2 March. It was principally for that reason that the hearing of the appeals was scheduled at the earliest available date.

7. The stay application(s) were declined. There were a number of reasons for those decisions:

(a) As noted above the appeal(s) could be heard promptly on the 23 February;

(b) The appeal against the suspension imposed on the 13 February was not lodged until after the second suspension was imposed.

(c) The first suspension was already in effect.

(d) The penalty imposed on the 17 February followed a guilty plea. The four (4) day suspension was in line with established authority. There was thus little prima facie prospect that the appeal would be successful.

8. On the afternoon of the 22 February Mr Innes emailed the Registrar of the JCA. The advice was cryptic. It was as follows:

“I have been instructed by my lawyer to withdraw both my appeals. Please sent invoice of filing fee to …”.

The Registrar contacted the Chairman of the Tribunal and leave to withdraw both appeals was granted: refer Rule 1006(1). The Tribunal issued a minute. In the relevant part it was as follows:

The RIU and the JCA have been put to considerable trouble and expense. Both Mr Innes and the RIU are asked to make submissions on the issue of costs and expenses – no more than three (3) pages by 4.00p.m. Friday 1 March 2013. The Tribunal will consider those submissions and then issue a ruling.

9. Submissions have now been received from both the RIU and Mr Innes. The RIU seeks the payment of the filing fees on each appeal of $250.00 together with the sum of $250.00 being the cost of transcribing the evidence taken at the 13 & 17 February hearings.

10. Mr Innes requested advice as to the nature of the RIU application. He stated:

“Before making submissions on the issue of costs and expenses I would be interested in an outline of those incurred so that I can make an informed comment. Given the timetable we are working to can I please ask for these by 4.00p.m.? Thursday 28 February”.

At the direction of the Chairman advice was sent to Mr Innes the same day (27 February). In the relevant part it was as follows:

(i) The RIU seeks the sum of $250.00 transcription costs.

(ii) There is also a $250.00 filing fee on each appeal.

(iii) The Judicial Authority seeks the costs of the Appeal Tribunal.

(iv) The determination of costs is not limited to the actual costs incurred. The award can reflect the substantive merits or otherwise of the appeals and the stay application(s).

11. Mr Innes filed a submission on the 1 March. He raised five (5) matters which require comment. These were:

(i) The $250.00 transcription fee was questioned. It was said that the Stipendiary Steward Mr Matthew Williamson contacted the agent for Mr Innes on the 20 February to advise that the transcript of the hearing from Sunday 17 February had already been completed.

(ii) Mr Innes agreed that there is a filing fee to be paid of $250.00 in respect of each appeal.

(iii) It was contended that a significant portion of the Appeals Panel’s costs were incurred by the Tribunal in the first instance ruling that the appeal from the hearing on the 13 February was out of time.

(iv) It was said that if the stay application(s) had been granted (there were applications in respect of both appeals) and the guilty finding in relation to the 13 February overturned that would have resulted in the dates for the suspension on the second careless riding charge being brought forward.

(v) Further with reference to the stay application Mr Innes said that there were difficulties with assembling witnesses. No details were provided save for the reference to Mr Lammas.

12. Before addressing the parties’ submissions it is appropriate to set out two (2) rules which are relevant. First Rule 1006(1). That rule is as follows:

An Appellant may withdraw his appeal with leave of the Appeals Tribunal and on such terms, including as to payment of costs and expenses, as it sees fit to impose.

The second relevant rule is Rule 1013. That rule is as follows:

Where a decision imposing a term of disqualification or suspension is stayed pending determination of an appeal and that appeal is subsequently dismissed or with leave of the Appeals Tribunal is withdrawn then, in exercising its powers under Rule 1007,(that Rule sets out the powers of the Appeals Tribunal) shall impose a term of disqualification or suspension commensurate with that originally imposed or so much of it as has not been served and if, in the opinion of the Appeals Tribunal the appeal is frivolous and/or was lodged for the principal purpose of delaying the commencement of a term of disqualification or suspension, the Appeals Tribunal may increase the term of disqualification or suspension or impose a fine not exceeding $5,000 in addition to the disqualification or suspension.

13. It can be seen that Rule 1013 has application only when a stay has actually been granted and the appeal is subsequently dismissed in circumstances where the Appeal Tribunal considers that it was frivolous and/or lodged for the principal purpose of delaying the commencement of the term of disqualification or suspension. The granting or refusing of a stay is entirely discretionary. Rule 1013 makes it plain that stay applications are not to be used to delay the commencement of suspensions or disqualifications. Some substantive reason must be advanced in support of a stay application. Here the first period of suspension was already underway. If a stay of that first suspension had been intended following the hearing on the 13 February then a stay application might have been expected to have been lodged before the suspension took effect. What happened in fact was that the stay application in respect of the penalty imposed on the 13 February was made only after the second suspension that was handed down on the 17 February.

14. If Mr Innes and his advisers had been confident that the appeal(s) would succeed then they might reasonably have been expected to attend the race meeting at Matamata on the 23 February. That was a prominent meeting at which most of the leading North Island jockeys were present.

15. Rule 1013 makes it plain that where an Appeals Tribunal believes that a stay application has been granted as a stratagem to obtain the delaying of the commencement of a term of suspension or disqualification then significant consequences will follow. Here Mr Innes was offered a prompt hearing date. He chose not to proceed with his appeals. Save for the reference to Mr Lammas (but one of a number of witnesses at the hearing on the 13 February) no other explanation was put forward. Further it must be mentioned that the Auckland Cup Carnival involving the running of the New Zealand Derby on the 28 February and the Auckland Cup on the 6 March might well have provided engagements for Mr Innes had his stay application(s) been granted. It is the Tribunal’s view that if the two (2) appeals had been meritorious they would have been pursued on the 23 February. The arrangements for the hearing in Matamata were well advanced. Advice that leave was being sought to withdraw both appeals reached the Registrar of the JCA mid afternoon on Friday the 22 February.

16 In regard to Mr Innes’ concerns about the transcript it seems clear to the Tribunal that the reference to Mr Williamson has to do with the transcript from the second hearing on the 17 February. The hearing on the 13 February was extended and the transcript runs to some eighteen (18) pages. That is were the significant cost has been incurred.

17. In considering the appropriate costs that might be awarded where an appeal is withdrawn or abandoned at a late stage reference has been made to the decisions in C v NZTR 28 February 2007 and W v RIU 6 December 2011. In the latter case the Appeals Tribunal had actually assembled at the nominated venue and the Appellant advised, without any prior notice that he would not proceed. Necessarily those circumstances involved some expense in having the members of the Appeals Tribunal assemble for a hearing which did not proceed. In W v RIU the costs award to the JCA was $850.00.

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18. It is necessary that there be a payment of $250.00 in respect of a filing fee on each appeal and there is an order accordingly. Further Mr Innes will pay to the RIU the sum of $250.00 in relation to the preparation of the transcripts from the two (2) race day Judicial Committee hearings. As to the costs of the JCA an appropriate figure in the circumstances outlined is $700.00 and there is an order accordingly.

19. The Tribunal wishes to make clear that in future where a stay of proceedings is sought without adequate grounds and the appeal is then abandoned or found to be without merit costs will be awarded in a sum more significant than has been ordered here.

Dated this 7 day of March 2013

_______________________________________
Murray McKechnie
Chairman
 

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