Appeal S Gommans v RIU – Decision dated 22 May 2014

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decisiondate: 26/05/2014

hearing_title: Appeal S Gommans v RIU - Decision dated 22 May 2014

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Decision:

BEFORE A JUDICIAL COMMITTEE OF THE JUDICIAL CONTROL AUTHORITY AT PALMERSTON NORTH

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Rules of Greyhound Racing

BETWEEN MRS SUE GOMMANS of Palmerston North, Licensed public trainer

Applicant

AND RACING INTEGRITY UNIT

Respondent

Judicial Committee: Prof G Hall, Chairman - Mr P Williams, Member of Committee

Appearing: The Applicant in person

Mr M Austin, Stipendiary Steward and Mr R Neal, Co-chief Stipendiary Steward for the Respondent

Also present: Mr J Gommans, assisting Mrs S Gommans

Mr G Whiterod, Stipendiary Steward

DECISION OF JUDICIAL COMMITTEE

[1] The applicant, Mrs Gommans, sought review of the decision of the stipendiary stewards at the Wanganui Greyhound Racing Club meeting at Hatrick Raceway Wanganui on 25 April 2014 where in Race 6 the greyhound STELLAR FORCE was stood down for 28 days under Rule 80.1.(b).

2] First it is appropriate to record the relevant Rules.

80.1 Where a Greyhound:

b. Fails to pursue the Lure in a Race the Stewards may impose the following periods of suspension:

a. in the case of a first offence, twenty-eight (28) days and until the completion of a Satisfactory Trial;

80.2 Where a Greyhound fails to pursue the Lure as provided under Rule 80.1, the Greyhound shall be examined by the officiating Veterinarian or Authorised Person.

80.3 For the purposes of this Rule, “seriously injured” means an injury which the Veterinarian or Authorised Person concludes will result in a period of incapacitation of 21 days or more.

80.4 Where a Greyhound is found not to be seriously injured upon an examination pursuant to Rule 80.2, the Owner or Trainer of the Greyhound may, within 72 hours after the completion of the Meeting at which the Greyhound failed to pursue the Lure, apply to the Stewards seeking a re-examination at a time to be agreed by the Stewards.

80.5 Where a Greyhound is found to be seriously injured upon an examination pursuant to Rule 80.2 or re-examination pursuant to Rule 80.4, a certificate shall be produced to the Stewards by the Veterinarian or Authorised Person detailing the injury. The Stewards shall not endorse the Greyhound’s Certificate of Registration and shall not impose a Suspension pursuant to Rule 80.1 but shall order the Greyhound to undergo a Satisfactory Trial before it is eligible to compete in any Race.

[3] At the commencement of the hearing at Palmerston North on Tuesday 13 May 2014 Mr Neal stated on behalf of the Racing Integrity Unit that they no longer opposed the application by Mrs Gommans. We asked Mr Neal for clarification.

[4] Mr Neal explained that at 9 o’clock on the morning of the hearing the Racing Integrity Unit became aware that on the previous day Dr Jansen, the officiating veterinarian who had examined STELLAR FORCE on raceday, had prepared a signed statement, at the request of the applicant, to the effect greyhounds could suffer potentially serious injuries that did not become apparent for 12 to 24 hours after racing. A dog might suffer an injury that would cause a marked reduction in performance but would only show pain and lameness some 12 to 24 hours later. This, he stated, occurred particularly with undisplaced hairline cracks in the hock joint, which Mr Neal accepted was the type of injury STELLAR FORCE had suffered.

[5] This statement from Dr Jansen, which was produced by Mr Neal, together with the race day veterinarian report and a non-raceday report from Dr Boyce, needs to be considered in the wider context of this case.

[6] Dr Jansen had previously examined STELLAR FORCE, as he was the veterinarian officiating on raceday. He had recorded after his post race examination that the dog had “pain in left hind gracilis muscle” and ordered a 7-day stand down.

[7] An inquiry into the performance of STELLAR FORCE had been conducted by the stipendiary stewards on the night as they considered the dog had failed to pursue the lure. Mrs Gommans was not present on raceday and was represented at that hearing by Miss S Smith, and assisting her was a trainer of her choice, Mr W Hodgson. The stipendiary steward on the night, Mr Austin, considered Dr Jansen’s raceday veterinarian examination. Mr Austin determined that the injury detected was insufficient to persuade him that the reason STELLAR FORCE had failed to pursue the lure was the injury that the dog had suffered. He told the Committee that as the veterinarian had only ordered a 7-day stand down it was not a “serious injury” for the purpose of r 80.3 and 80.5. When questioned by the Committee, Mr Austin stated he had not spoken directly to the veterinarian about the injury or the stand down on the night.

[8] Mrs Gommans stated she had rung Mr Austin’s cell-phone a number of times during the course of the meeting and had left a message requesting that he ring her when he was free and before he left the track. Mr Austin explained to the Committee that he was busy on raceday and had not returned Mrs Gommans’ call. He also explained that he had spoken on the telephone with the owner of STELLAR FORCE, Mr Cleaver, and that that call had eventually become heated with Mr Austin’s competence being questioned.

[9] Mr Austin stated that he did not ring Mrs Gommans and he would have expected her to ring him or another stipendiary steward once she had determined to have STELLAR FORCE re-examined by a veterinarian the next day, as is provided in the Rules. He explained that the Rules required the stipendiary steward to approve the time of the veterinarian examination and it was usual practice for a steward to be present.

[10] The examination of STELLAR FORCE by Dr Boyce, veterinary surgeon, was thus not sanctioned by the Rules of Greyhound Racing, as no stipendiary steward had been informed of the re-examination. Mrs Gommans stated she did not realise a stipendiary steward had to be present although she acknowledged that any previous re-examination of any of her dogs had been in the presence of a steward.

[11] Mrs Gommans acknowledged she was annoyed that Mr Austin had not rung her back despite her leaving a message requesting that he do so before he left the track, and said she did not believe she should have to keep trying to contact the stipendiary steward. She said she took it as a fact that the stipendiary stewards did not want to talk to her. She acknowledged there was no way Mr Austin would have known about the re-vetting of STELLAR FORCE by Dr Boyce.

[12] When Dr Boyce examined STELLAR FORCE he found injuries to “the right central tarsal bone and the left gracilis muscle”. He expressed the opinion that STELLAR FORCE was not fit to race for 28 days. Mrs Gommans emailed this report to Mr Whiterod, the resident stipendiary steward in the lower North Island. He received it some 3 or 4 days after the re-vetting.

[13] Mr Austin acknowledged that he had received a copy of Dr Boyce’s report but as the examination was not conducted in accordance with the Rules, he did not believe he was able to attach any weight to it. It was only when the Racing Integrity Unit received the second report from Dr Jansen on the day of the hearing that they accepted that the reason STELLAR FORCE had not chased the lure was due to a serious injury that the dog had received in the race.

[14] Mr Austin confirmed that the Racing Integrity Unit were no longer seeking to stand the dog down for 28 days.

[15] We ordered that the 28-day stand down of STELLAR FORCE be lifted.

[16] We then asked the parties for submissions as to costs.

[17] Mr Neal indicated that the Racing Integrity Unit was not seeking costs.

[18] Mrs Gommans did not seek costs from the Racing Integrity Unit.

[19] We asked the parties for submissions as to Judicial Control Authority costs.

[20] Each party blamed the other for the delay in the veterinarian evidence becoming available.

[21] Mrs Gommans stated that she initially believed that Dr Boyce’s letter would be sufficient to have the stand down lifted. She said the issue with Dr Boyce’s letter was never raised by the Racing Integrity Unit at the scheduling telephone conference call that was held on 6 May, despite the fact that the Racing Integrity Unit had had a copy of Dr Boyce’s letter for some time.

[22] Mrs Gommans said it was only when it became apparent that the hearing was going ahead, that she thought to obtain a second opinion. She said she approached Dr Jansen on Friday 9 May. There was a delay in Dr Jansen forwarding his findings to her and the email did not appear on her husband’s computer until it was opened on the morning of the hearing (Tuesday 13 May).

[23] Mr Neal stated that the Racing Integrity Unit had acted in good faith with respect to this matter. There was no evidence on raceday that the dog had suffered a “serious injury”.

[24] Mr Neal emphasised that Mrs Gommans had had 10 days to obtain further evidence as to the likely impact of STELLAR FORCE’s injuries and had left things to the last minute. She had not told the Racing Integrity Unit that there was a letter coming from Dr Jansen and they only became aware of its existence on the day of the hearing as a consequence of a conversation between Mr Whiterod and Dr Jansen. He stated that as an experienced trainer, Mrs Gommans should have known the Racing Integrity Unit had to be formally notified of the re-vetting of STELLAR FORCE, in order for there to be a stipendiary steward present at the re-examination the day after raceday.

[25] We are satisfied there is fault on both sides. Mr Austin acknowledges that Mrs Gommans had left a message to ring him and he did not return her call. He explained he was busy on raceday and that he had had a heated conversation with the owner of the dog. We suspect this may have influenced Mr Austin’s decision not to return Mrs Gommans’ call. He should have returned her call.

[26] As an experienced trainer, we would have expected Mrs Gommans to know of the need for the stipendiary stewards to be notified under r 80.4 of the intention to have STELLAR FORCE re-examined in order that they could approve the time and, if so notified, we understand it is standard practice for a stipendiary steward to be present. That said, the inadequacy of Dr Boyce’s signed statement, which was on a letterhead page and which stated the dog had an injury and in his opinion was not fit to race for 28 days, was never raised by the Racing Integrity Unit at the teleconference of 6 May, despite our understanding that this note had been forwarded by email to Mr Whiterod some days prior.

[27] Mrs Gommans was obviously annoyed that Mr Austin had not responded to her calls and her message to ring her, and she decided to go ahead with the re-vetting despite not having informed the Racing Integrity Unit of this fact. There was also quite some delay before Mrs Gommans approached Dr Jansen for a further opinion.

[28] We believe it is appropriate for each party to make a contribution to the costs of the Judicial Control Authority in this matter. We believe that the Authority should recover approximately 65 per cent of their costs, which were in excess of $1200.

[29] We see no reason to differentiate between the Racing Integrity Unit and the applicant in this matter. Each “dug their toes in” when better communication would have avoided the need for a hearing.

[30] We order that the Racing Integrity Unit pay costs of $400.

[31] We order Mrs Gommans pay costs of $400. We note a filing fee of $250 has already been paid, so the sum outstanding is $150.

Dated at Dunedin this 22nd day of May 2014.

G Hall
Chairman

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