Appeal Sir P and Lady Hogan/PJ Walker v RIU – Costs Decision dated 22 April 2015
ID: JCA18082
Decision:
IN THE MATTER of the New Zealand Rules of Thoroughbred Racing
AND
BETWEEN LADY JUSTINE & SIR PATRICK HOGAN & PJ WALKER
Appellants
AND RACING INTEGRITY UNIT
Respondent
COSTS DECISION
1. In determining whether to make an award of costs, it is observed at the outset that this Appeal Tribunal has a discretion to award costs. Costs are usually awarded against the unsuccessful party in the proceedings in favour of the party who has succeeded.
2. Rule 1007(3) provides as follows:
"The Appeals Tribunal may order that all or any of the costs and expenses of any party to the Appeal, ... ... ... ...".
3. This Appeal Tribunal is also cognisant of the Practice Note dated 25th September 2014 issued by the Judicial Control Authority for Racing ("JCA").
4. In this case, the Appellants have not been successful and thus, an award of costs should be made in favour of the Respondent.
5. Mr Ryan, advocating for the Appellants, refers to High Court Rules, and in particular, to Rule 14.7(e) which reads:
"The proceedings concerned a matter of public interest and the party opposing costs acted reasonably in the conduct of the proceeding."
Mr Ryan also submits that the evidence given by Sir Patrick Hogan was of such a nature as to be of concern to the Appeal Tribunal; that for whatever reason, the transcript available from the Race Day Hearing was not complete.
Mr Ryan, in his submission, also places emphasis on the fact that the Judicial Committee did not properly articulate its reasons for its ruling and says that the Appeal was brought in good faith.
Mr Ryan takes the view that costs should "lie where they fall".
6. Mr Colson, of Counsel for the Respondent, submits that costs should follow the event as the Respondent was successful in the Appeal.
7. Mr Colson also argues that it became apparent at the oral hearing that Sir Patrick Hogan's evidence was largely uncontentious or was more in the way of submission than evidence. He submits that this Appeal could have been dealt with in a tele-conference or on the papers.
Mr Colson acknowledges that the Appellants have already suffered a disappointing outcome in relation to the race, given the failure of the starting stalls but nevertheless he submits that a contribution of $1,500.00 to the RIU's legal costs and Counsel's airfare of $521.85, should be awarded.
COSTS DECISION
1. Whilst the Appeal may have, to a degree, concerned a matter of public interest, namely the articulation of how a Judicial Committee's discretion should be exercised, this Appeal Tribunal is of the view that the principle that has been referred to by Mr Ryan assists his submission in terms of a reduction of costs only. Therefore, it is now a question of the quantum of the costs award that should be made.
2. Mr Colson's suggestion that the Appeal could have been dealt with by an alternative means, other than the oral hearing, is, with respect, to a large degree, wisdom with hindsight. The fact of the matter is that Sir Patrick Hogan and Mr Walker were sufficiently aggrieved by the Judicial Committee's Ruling as to seek the opportunity to provide further evidence.
3. Whilst accepting that the Appeal was brought in good faith, the fact of the matter is that the Appellants "required their day in Court" and were unsuccessful. Thus, an award of costs is appropriate. We do not consider, as Mr Ryan submits, that it would be an injustice to award costs against the Appellants.
4. The Practice Note on Costs states that:
"In general where costs are awarded to a party a good rule of thumb is an award of 60% of the actual costs reasonably incurred by that party..."
If there are factors which might persuade an Appeals Tribunal to move up or down from that starting point, then the Tribunal has the power to exercise a further discretion in this regard.
5. The Rule provides that the Appeals Tribunal may order the payment of costs, which makes It clear that there is a discretion to be exercised but, of course, the discretion must be exercised on a principled basis. In this regard, and in exercising our discretion in this case, we are guided by the Decision of TW Mitchell v RIU dated 7th August 2012.
6. As we have said, the Appeal was brought in good faith to correct what the Appellants perceived was failure for the legal issues to be adequately addressed.
7. Mr Colson, in his submission, has stated that he only seeks a "contribution of $1,500.00" to the RIU's legal costs, but we do not know what his actual fee is. In any event, we intend to be generous in the exercise of our discretion in so far as the Appellants are concerned. Even though the Appellants were not successful in the overall result, they were, in principle, partially successful in that the Judicial Committee had not adequately expressed its reasons for its Ruling; that is to say, the Judicial Committee did not appear to exercise the discretion that it was required to exercise, in an appropriate manner.
8. Thus, the award of costs in favour of the RIU is as follows:
a. Costs $600.00; and
b. Airfares $521.85.
9. JCA COSTS
9.1 The Appellants are directed to pay JCA costs in the sum of $2,045.10.
Dated this 22nd day of April 2015
KG Hales
Appeal Tribunal Chairman
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 18/04/2015
Publish Date: 18/04/2015
JCA Decision Fields (raw)
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hearing_title: Appeal Sir P and Lady Hogan/PJ Walker v RIU - Costs Decision dated 22 April 2015
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Decision:
IN THE MATTER of the New Zealand Rules of Thoroughbred Racing
AND
BETWEEN LADY JUSTINE & SIR PATRICK HOGAN & PJ WALKER
Appellants
AND RACING INTEGRITY UNIT
Respondent
COSTS DECISION
1. In determining whether to make an award of costs, it is observed at the outset that this Appeal Tribunal has a discretion to award costs. Costs are usually awarded against the unsuccessful party in the proceedings in favour of the party who has succeeded.
2. Rule 1007(3) provides as follows:
"The Appeals Tribunal may order that all or any of the costs and expenses of any party to the Appeal, ... ... ... ...".
3. This Appeal Tribunal is also cognisant of the Practice Note dated 25th September 2014 issued by the Judicial Control Authority for Racing ("JCA").
4. In this case, the Appellants have not been successful and thus, an award of costs should be made in favour of the Respondent.
5. Mr Ryan, advocating for the Appellants, refers to High Court Rules, and in particular, to Rule 14.7(e) which reads:
"The proceedings concerned a matter of public interest and the party opposing costs acted reasonably in the conduct of the proceeding."
Mr Ryan also submits that the evidence given by Sir Patrick Hogan was of such a nature as to be of concern to the Appeal Tribunal; that for whatever reason, the transcript available from the Race Day Hearing was not complete.
Mr Ryan, in his submission, also places emphasis on the fact that the Judicial Committee did not properly articulate its reasons for its ruling and says that the Appeal was brought in good faith.
Mr Ryan takes the view that costs should "lie where they fall".
6. Mr Colson, of Counsel for the Respondent, submits that costs should follow the event as the Respondent was successful in the Appeal.
7. Mr Colson also argues that it became apparent at the oral hearing that Sir Patrick Hogan's evidence was largely uncontentious or was more in the way of submission than evidence. He submits that this Appeal could have been dealt with in a tele-conference or on the papers.
Mr Colson acknowledges that the Appellants have already suffered a disappointing outcome in relation to the race, given the failure of the starting stalls but nevertheless he submits that a contribution of $1,500.00 to the RIU's legal costs and Counsel's airfare of $521.85, should be awarded.
COSTS DECISION
1. Whilst the Appeal may have, to a degree, concerned a matter of public interest, namely the articulation of how a Judicial Committee's discretion should be exercised, this Appeal Tribunal is of the view that the principle that has been referred to by Mr Ryan assists his submission in terms of a reduction of costs only. Therefore, it is now a question of the quantum of the costs award that should be made.
2. Mr Colson's suggestion that the Appeal could have been dealt with by an alternative means, other than the oral hearing, is, with respect, to a large degree, wisdom with hindsight. The fact of the matter is that Sir Patrick Hogan and Mr Walker were sufficiently aggrieved by the Judicial Committee's Ruling as to seek the opportunity to provide further evidence.
3. Whilst accepting that the Appeal was brought in good faith, the fact of the matter is that the Appellants "required their day in Court" and were unsuccessful. Thus, an award of costs is appropriate. We do not consider, as Mr Ryan submits, that it would be an injustice to award costs against the Appellants.
4. The Practice Note on Costs states that:
"In general where costs are awarded to a party a good rule of thumb is an award of 60% of the actual costs reasonably incurred by that party..."
If there are factors which might persuade an Appeals Tribunal to move up or down from that starting point, then the Tribunal has the power to exercise a further discretion in this regard.
5. The Rule provides that the Appeals Tribunal may order the payment of costs, which makes It clear that there is a discretion to be exercised but, of course, the discretion must be exercised on a principled basis. In this regard, and in exercising our discretion in this case, we are guided by the Decision of TW Mitchell v RIU dated 7th August 2012.
6. As we have said, the Appeal was brought in good faith to correct what the Appellants perceived was failure for the legal issues to be adequately addressed.
7. Mr Colson, in his submission, has stated that he only seeks a "contribution of $1,500.00" to the RIU's legal costs, but we do not know what his actual fee is. In any event, we intend to be generous in the exercise of our discretion in so far as the Appellants are concerned. Even though the Appellants were not successful in the overall result, they were, in principle, partially successful in that the Judicial Committee had not adequately expressed its reasons for its Ruling; that is to say, the Judicial Committee did not appear to exercise the discretion that it was required to exercise, in an appropriate manner.
8. Thus, the award of costs in favour of the RIU is as follows:
a. Costs $600.00; and
b. Airfares $521.85.
9. JCA COSTS
9.1 The Appellants are directed to pay JCA costs in the sum of $2,045.10.
Dated this 22nd day of April 2015
KG Hales
Appeal Tribunal Chairman
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