Appeal Sir P and Lady Hogan/PJ Walker v RIU – Decision dated 7 April 2015
ID: JCA10459
Decision:
IN THE MATTER of the New Zealand Rules of Racing
AND
BETWEEN SIR PATRICK and LADY JUSTINE HOGAN and
PJ WALKER of Cambridge, Horse Breeders
Appellants
AND RACING INTEGRITY UNIT
Respondent
______________________________________________________________________________________________________________________________
DECISION OF APPEALS TRIBUNAL DATED 7th April 2015
______________________________________________________________________________________________________________________________
PRESENT:
Mr M Colson – Counsel for the Racing Integrity Unit (RIU)
Mr AJ Ryan – Lay Advocate, appearing for the Appellants
Sir Patrick Hogan – Appellant
Mr PJ Walker – Appellant
Mr J Oatham – Registrar
1. Introduction
1.1 Following the running of Race 6 at the Counties Racing Club’s meeting held on the 22nd of November 2014, a Group 2 race, Stipendiary Steward, J Oatham lodged an information requesting a ruling pursuant to Rule 632 to determine whether the barrier of “Pussy O’Reilly” (OP Bosson) was slow to open, and in particular, to determine if “Pussy O’Reilly” was denied a fair start.
1.2 Rule 632 reads as follows:
“If in the opinion of the Judicial Committee a horse which does not finish in the first 3 placings was prevented from taking an effective part in a race owing to the mechanical failure of starting stalls, or is denied a fair start and such occurrence materially prejudiced the chances of that horse (but not where the horse is slow away of its own accord), the Judicial Committee may declare such horse to be a non-starter.”
1.3 After hearing evidence from the trainer of “Pussy O’Reilly”, Mr K Kelso, the Jockey Mr OP Bosson, and the starter Mr T Harrison and after considering submissions from Mr Oatham, the Judicial Committee determined that there had been a mechanical failure of the starting stalls and that “Pussy O’Reilly” had been denied a fair start, and that its chances had been materially prejudiced. This conclusion was not contested on race day, particularly by the trainer, Mr K Kelso and the jockey, Mr OP Bosson.
1.4 The Judicial Committee was then faced with the task of determining whether or not to declare “Pussy O’Reilly” a non-starter.
1.5 The co-owners of the horse, Mr P Walker and Sir Patrick Hogan submitted to the Judicial Committee that Rule 632 seemed to be designed solely for the benefit of the betting public and that no consideration was given to the impact on the owners, in so far as the loss of stake money is concerned. Whilst it does not appear from the transcript of the hearing, the Judicial Committee in its decision refers to Mr Walker submitting that “Pussy O’Reilly” would also be denied “black type” for her pedigree record.
1.6 The Judicial Committee ruled that there had been a mechanical failure of the starting stalls and that it was satisfied that the chances of “Pussy O’Reilly” had been materially prejudiced. Accordingly, the Judicial Committee declared “Pussy O’Reilly” to be a non-starter. It appears from the transcript, that the Judicial Committee took the view, that because the mare had not finished in the first three placings that it had to be declared a non-starter.
2. The appeal
2.1 Sir Patrick and Lady Hogan and Mr P Walker, the owners of “Pussy O’Reilly” now appeal against the decision of the Judicial Committee.
2.2 The appeal procedure is set out in Rule 1005 of the Rules of Thoroughbred Racing and in particular, the appeal is by way of re-hearing based on the evidence adduced at the hearing.
2.3 Mr AJ Ryan, Lay Advocate for the Appellants, advised that the Appellants were of the view that the transcript did not represent a complete record of the hearing and accordingly, further evidence was received, pursuant to Rule 1005(4) of the Rules of Thoroughbred Racing. Sir Patrick Hogan gave evidence on behalf of the appellants.
2.4 In the first instance Sir Patrick took issue with the degree to which “Pussy O’Reilly” had been affected by the slow opening of the starting gates. He thought that the words “significantly disadvantaged” used by Mr Ross Neal, Co-Chief Stipendiary Steward, in his pre-hearing submissions to this panel, was an exaggeration. He said that although “Pussy O’Reilly” was impeded she still took an effective part in the race, by running into 4th place.
2.5 However, the main thrust of Sir Patrick’s evidence was on the impact on the mare in terms of the enhancing of her catalogue pedigree insofar as the mare’s performance in Group and Listed races is concerned. He said that “Pussy O’Reilly” has 3 fourth placings in her pedigree and he took the view that there should be a fourth, namely the one in this case. He said that there are, two impacts, namely the placing as discussed above and the amount of stake money won. He said that even though he had been re-imbursed by NZ Thoroughbred Racing in a sum equivalent to the stake money, that such a payment was an ex gratia payment and could not be regarded as “stake money”
2.6 Sir Patrick also challenged the Chairman of the Judicial Committee’s approach to the interpretation of the rule. He referred to the transcript and said that the Chairman took the view that the film was the only evidence which had to be considered and that nothing he said would have any impact on the Judicial Committee’s decision. He said that the Chairman took the view that the mare “had to be declared a non-starter’ and further for the Chairman to say, “Because it has run 4th, we have to declare it has been denied a fair opportunity”, that demonstrated the Chairman did not understand the rule. Sir Patrick alleged that at the point of the transcript on page 4 when the recorder was turned off that he was of the view that he had a discussion concerning the Committee’s discretion.
2.7 Mr PJ Walker, said that he recalled a discussion with Mr Oatham (Stipendiary Steward), who was the informant on race day, prior to the hearing getting underway, as to whether or not they, (the connections) wanted to “hold onto 4th place”. Mr Oatham responded to this by saying that was the kind of discussion which can take place in such a situation but had no specific recollection of that being talked about on the day.
3. Submissions
3.1 The thrust of the Appellants’ submissions is that the Judicial Committee failed to adequately articulate its reasons for declaring “Pussy O’Reilly” a non-starter, and in fact, Mr Ryan submitted that the Judicial Committee did not exercise a discretion at all. It appears from the transcript of the hearing and from the Judicial Committee’s decision that the Committee was of the view that as a result of its findings, that there had been a mechanical failure of the starting stalls, which materially prejudiced the chances of the horse, and because the horse had not finished in the first 3 placings, that it had to be declared a non-starter. Mr Ryan also said that there was some doubt as to whether or not “Pussy O’Reilly’s” chances were “materially prejudiced”
3.2 As Mr Ryan correctly submits, the rule provides among other things that if a horse is denied a fair start and its chances in the race are materially prejudiced by reason of the mechanical failure of the starting stalls, then a Judicial Committee may declare the horse a non-starter. The word “may” means that a Judicial Committee has a discretion as to whether or not to declare a horse a non-starter. Mr Ryan has, in his pre-hearing submission provided a detailed synopsis as to how the word “may”, when used in a legal context, should be interpreted and we are grateful for his submissions in this regard. From this Appeal Committee’s perspective, a succinct definition of the exercise of a discretion comes from a decision of Appeal Judges in the case involving the 1996 Kurow Cup. In that decision, the Chairman of the Appeal Judges wrote:
“Deciding how to exercise a discretion involves an intellectual process of weighing relevant factors, excluding irrelevant factors and reaching a rational conclusion capable of explanation with reasons. It requires qualities of sound judgement, wisdom and logic, as well as an instinct for fair play. Discretions are conferred under the Rules of Racing so that decision makers have the flexibility necessary to ensure that racing’s image as a sport is administered with fairness and integrity is fostered and protected. The factors to be weighed or to be excluded can only be identified from the particular facts of each case. For that reason, and because any formula would tend to fetter the decision-maker’s discretion, there cannot be any predetermined list of factors to apply.”
3.3 With this in mind, we now turn to consider the competing arguments against the background of the factual matrix.
3.4 Mr Ryan invited us to consider as part of the overall discretion exercise, as to whether or not the chances of “Pussy O’Reilly” were “materially prejudiced”. Having viewed the video coverage of the start and the race, we find as a fact, which finding we believe to be uncontested, that the starting gates failed and as a result “Pussy O’Reilly” was denied a fair start. It is accepted that it was the jockey’s riding plan to ride close to the leading horses, or in racing parlance, to “ride near the speed”. Again, in racing parlance, the mare was not “put in the race” as was intended. As a result of the starting gates failing, this race plan was frustrated. Thus in terms of the rule, we find that the chances of “Pussy O’Reilly” were materially prejudiced. We further comment that the expression “materially prejudiced” really has to be looked at in context. “Pussy O’Reilly’s” gate did not open in unison with the other gates. As a consequence, the mare jumped awkwardly and was clearly off balance. Mr Kelso, Licensed Trainer, said in the hearing on race day, “she’s probably lost approximately 3 lengths , leaving the barrier as you can see and we intended to ride her 5th, 6th, 4th 5th 6th, so she has definitely been impeded by the way the barriers opened”. The starter, Mr T Harrison said in response to a question from the Chairman, I. Even though from this Appeal Committee’s viewing of the video it only seemed to lose a length or so at the start, it did lose ground in the early part of the race. Thus in the context of this fact situation, we find that the chances of the mare were “materially prejudiced”.
3.5 The result of the combination of these facts means that the Judicial Committee was left with a discretion to exercise, namely whether or not to declare “Pussy O’Reilly” a non-starter, but as we have observed, neither the race day decision or the transcript of the hearing seems to demonstrate how the Judicial Committee exercised its discretion, or whether or not the members of the Committee, turned their minds to the fact that the rule provided for a discretion.
3.6 We are also cognisant of the discussion which took place before the Judicial Committee, of the ongoing problems that there apparently have been with regard to the starting gates in question. That is all very well and we are sure that such a problem will be addressed by racing authorities but it is an irrelevant factor for the purposes of this appeal. The fact of the matter is that there was a mechanical failure and that failure gave rise to this case.
3.7 Furthermore, we are also well aware that this rule was brought into effect before the advent of “First 4” betting and that there are moves afoot to have this rule amended. Notwithstanding, however, that whilst the rule remains in full force and effect, Judicial Committees must interpret and apply the rule as it stands.
3.8 It is the Appellants’ case, that the Judicial Committee erred by not exercising its discretion in favour of “Pussy O’Reilly” by leaving the placings as the horses passed the post. Because the race was a Group 2 race, the Appellants say that the potential commercial value of the horse and its progeny has been affected by it not having “black type” in future sales catalogues for this race. Therefore Mr Ryan says that the placings should remain unchanged and that this appeal should be upheld.
3.9 We interpolate to record at this point, that at the Judicial Committee Hearing, Sir Patrick Hogan raised the issue of the loss of stake earnings. However, we are aware that NZ Thoroughbred Racing Incorporated has a fund set aside to pay an equivalent sum to the stakes to the connections of horses affected by the application of this rule and accordingly, the issue of a loss of earnings is not a “relevant factor” that will be considered by us in our determination of this appeal. Whilst this was not referred to in the Judicial Committee’s decision, we think that we can safely conclude that the Judicial Committee is deemed to have known of this fact. We also understand that the payment from NZTR may have been paid to the connections of “Pussy O’Reilly”.
3.10 We further note that we are aware that those punters affected by the race day decision, will have had their bets refunded but notwithstanding that, the interests of the betting public remains a live issue and a relevant factor for the purposes of this appeal.
3.11 Mr Colson raised with us an interesting point, as to whether or not there was jurisdiction for this appeal to be heard. He referred to Rule 1001(1).
“An appeal may lie against a decision of the Judicial Committee except:
(a) any decision made by a Judicial Committee during the currency of a Race Day or Race Meeting that a horse should or should not be disqualified or placed after another horse on account of something which happened during the running of a race or any findings relating thereto;
(b) any decision made by the Judicial Committee to which Rule 642 of these Rules apply; or
(c) any decision of the Judicial Committee with respect to any matter of fact in connection with weighing, a start in front of the post or on the wrong course, or before the appointed time or in connection with the running of a race over the wrong distance”
Mr Colson said that in this case, whilst the request for a ruling does not lie on all fours with the matters referred to in Rule 1001(1) (a) & (b) in particular, that by inference, because it was a race day decision which affected the betting public, in the same way that a protest or a disqualification affects the punter, that ipso facto, no appeal is available.
Mr Ryan, rather predictably, was of the view that the draftsman of the rule had deliberately omitted reference to the kind of fact situation before us and therefore, a right of appeal must exist.
We choose not to formulate a ruling on this point. From our perspective, this is something that the draftsman of the Rules may or may not consider at a later time.
4. Decision and reasons
4.1 We turn now to the arguments under consideration.
4.2 The Appellants say that the potential commercial value of “Pussy O’Reilly” and its progeny will be affected by the loss of opportunity for “black type” in future sales catalogues. It is noted that the Appellants are concerned about “potential”. That word in itself imports uncertainty. Is a Judicial Committee required to know what might affect the decision of a buyer when looking at a horse in the sale ring? Is a 4th placing in a Group 2 race going to have an input to such an extent to encourage a purchaser to pay a premium for the horse on sale? Possibly so, but it is trite to say that there are many other factors which a buyer of a horse will take into account. Examples include the horse’s conformation and its breeding.
4.3 The real question is to what extent should a Judicial Committee be expected to take into account an uncertain factor such as the owners’ belief that the potential value of progeny might be affected? There are so many imponderable factors that need to be looked at. What if the filly/mare is barren? What if the first foal is stillborn? What if the mare/filly breaks down at its next start and is euthanized? What if the mare wins a Group 1 race in the future, won’t the “black type” for 4th in a Group 2 race pale into insignificance? Supposing this fact situation occurred in a Rating 65 race at a country meeting, would a Judicial Committee have to stop and consider the potential of the mare for its future commercial value in considering its discretion?
4.4 These are the uncertainties that accompany the breeding and racing of horses and it is this Appeal Committee’s view that such an argument should not carry much weight in the minds of a Judicial Committee when exercising its discretion in a case such as the one under consideration. A Judicial Committee should not be required to speculate on the matters which are referred to.
4.5 On the other hand, we have the certain argument that the betting public was affected. Win/place/quinella and trifecta punters were affected as their bets may well have been affected by the failure of the starting gates. We recognise that the “First 4” bettors were affected by the Judicial Committee’s decision and that is unfortunate. Mr Colson, of Counsel for the respondent, provided figures made available by the TAB, which showed that of a total of bets refunded in New Zealand of $51,216-00, only $4,922-00 was refunded for “First 4” bettors. TABCorp of a total of $11,816-00, refunded $2118 to “First 4” bettors. Mr Ryan said that it was unfair to deprive otherwise successful “First 4” bettors of their dividend, but as we have said that is unfortunate. At least they are not totally out of pocket.
5. In summary
It is this Appeal Committee’s view that having taken into account the relevant factors and excluded the irrelevant factors that in this instance the interests of the betting public must, in terms of the exercise of our discretion, override the interests of the connections of the horse. We find that “Pussy O’Reilly” was properly declared a non-starter. The appeal is dismissed accordingly.
6. Costs
The parties are to file submissions on costs with the Registrar within 7 days of the date of this decision.
Dated this 7th day of April 2015
K G Hales (Chairman) N McCutcheon
Appeals Tribunal Appeals Tribunal Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 02/04/2015
Publish Date: 02/04/2015
JCA Decision Fields (raw)
Dmitry: This section contains all JCA fields migrated from the raw data.
Data from these fields should be mapped appropriately to display amongst the standard fields above; please make note of any values below that are missing in the above standard fields but should be there.
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decisiondate: 02/04/2015
hearing_title: Appeal Sir P and Lady Hogan/PJ Walker v RIU - Decision dated 7 April 2015
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
isappeal:
submissionsfordecision:
reasonsfordecision:
Decision:
IN THE MATTER of the New Zealand Rules of Racing
AND
BETWEEN SIR PATRICK and LADY JUSTINE HOGAN and
PJ WALKER of Cambridge, Horse Breeders
Appellants
AND RACING INTEGRITY UNIT
Respondent
______________________________________________________________________________________________________________________________
DECISION OF APPEALS TRIBUNAL DATED 7th April 2015
______________________________________________________________________________________________________________________________
PRESENT:
Mr M Colson – Counsel for the Racing Integrity Unit (RIU)
Mr AJ Ryan – Lay Advocate, appearing for the Appellants
Sir Patrick Hogan – Appellant
Mr PJ Walker – Appellant
Mr J Oatham – Registrar
1. Introduction
1.1 Following the running of Race 6 at the Counties Racing Club’s meeting held on the 22nd of November 2014, a Group 2 race, Stipendiary Steward, J Oatham lodged an information requesting a ruling pursuant to Rule 632 to determine whether the barrier of “Pussy O’Reilly” (OP Bosson) was slow to open, and in particular, to determine if “Pussy O’Reilly” was denied a fair start.
1.2 Rule 632 reads as follows:
“If in the opinion of the Judicial Committee a horse which does not finish in the first 3 placings was prevented from taking an effective part in a race owing to the mechanical failure of starting stalls, or is denied a fair start and such occurrence materially prejudiced the chances of that horse (but not where the horse is slow away of its own accord), the Judicial Committee may declare such horse to be a non-starter.”
1.3 After hearing evidence from the trainer of “Pussy O’Reilly”, Mr K Kelso, the Jockey Mr OP Bosson, and the starter Mr T Harrison and after considering submissions from Mr Oatham, the Judicial Committee determined that there had been a mechanical failure of the starting stalls and that “Pussy O’Reilly” had been denied a fair start, and that its chances had been materially prejudiced. This conclusion was not contested on race day, particularly by the trainer, Mr K Kelso and the jockey, Mr OP Bosson.
1.4 The Judicial Committee was then faced with the task of determining whether or not to declare “Pussy O’Reilly” a non-starter.
1.5 The co-owners of the horse, Mr P Walker and Sir Patrick Hogan submitted to the Judicial Committee that Rule 632 seemed to be designed solely for the benefit of the betting public and that no consideration was given to the impact on the owners, in so far as the loss of stake money is concerned. Whilst it does not appear from the transcript of the hearing, the Judicial Committee in its decision refers to Mr Walker submitting that “Pussy O’Reilly” would also be denied “black type” for her pedigree record.
1.6 The Judicial Committee ruled that there had been a mechanical failure of the starting stalls and that it was satisfied that the chances of “Pussy O’Reilly” had been materially prejudiced. Accordingly, the Judicial Committee declared “Pussy O’Reilly” to be a non-starter. It appears from the transcript, that the Judicial Committee took the view, that because the mare had not finished in the first three placings that it had to be declared a non-starter.
2. The appeal
2.1 Sir Patrick and Lady Hogan and Mr P Walker, the owners of “Pussy O’Reilly” now appeal against the decision of the Judicial Committee.
2.2 The appeal procedure is set out in Rule 1005 of the Rules of Thoroughbred Racing and in particular, the appeal is by way of re-hearing based on the evidence adduced at the hearing.
2.3 Mr AJ Ryan, Lay Advocate for the Appellants, advised that the Appellants were of the view that the transcript did not represent a complete record of the hearing and accordingly, further evidence was received, pursuant to Rule 1005(4) of the Rules of Thoroughbred Racing. Sir Patrick Hogan gave evidence on behalf of the appellants.
2.4 In the first instance Sir Patrick took issue with the degree to which “Pussy O’Reilly” had been affected by the slow opening of the starting gates. He thought that the words “significantly disadvantaged” used by Mr Ross Neal, Co-Chief Stipendiary Steward, in his pre-hearing submissions to this panel, was an exaggeration. He said that although “Pussy O’Reilly” was impeded she still took an effective part in the race, by running into 4th place.
2.5 However, the main thrust of Sir Patrick’s evidence was on the impact on the mare in terms of the enhancing of her catalogue pedigree insofar as the mare’s performance in Group and Listed races is concerned. He said that “Pussy O’Reilly” has 3 fourth placings in her pedigree and he took the view that there should be a fourth, namely the one in this case. He said that there are, two impacts, namely the placing as discussed above and the amount of stake money won. He said that even though he had been re-imbursed by NZ Thoroughbred Racing in a sum equivalent to the stake money, that such a payment was an ex gratia payment and could not be regarded as “stake money”
2.6 Sir Patrick also challenged the Chairman of the Judicial Committee’s approach to the interpretation of the rule. He referred to the transcript and said that the Chairman took the view that the film was the only evidence which had to be considered and that nothing he said would have any impact on the Judicial Committee’s decision. He said that the Chairman took the view that the mare “had to be declared a non-starter’ and further for the Chairman to say, “Because it has run 4th, we have to declare it has been denied a fair opportunity”, that demonstrated the Chairman did not understand the rule. Sir Patrick alleged that at the point of the transcript on page 4 when the recorder was turned off that he was of the view that he had a discussion concerning the Committee’s discretion.
2.7 Mr PJ Walker, said that he recalled a discussion with Mr Oatham (Stipendiary Steward), who was the informant on race day, prior to the hearing getting underway, as to whether or not they, (the connections) wanted to “hold onto 4th place”. Mr Oatham responded to this by saying that was the kind of discussion which can take place in such a situation but had no specific recollection of that being talked about on the day.
3. Submissions
3.1 The thrust of the Appellants’ submissions is that the Judicial Committee failed to adequately articulate its reasons for declaring “Pussy O’Reilly” a non-starter, and in fact, Mr Ryan submitted that the Judicial Committee did not exercise a discretion at all. It appears from the transcript of the hearing and from the Judicial Committee’s decision that the Committee was of the view that as a result of its findings, that there had been a mechanical failure of the starting stalls, which materially prejudiced the chances of the horse, and because the horse had not finished in the first 3 placings, that it had to be declared a non-starter. Mr Ryan also said that there was some doubt as to whether or not “Pussy O’Reilly’s” chances were “materially prejudiced”
3.2 As Mr Ryan correctly submits, the rule provides among other things that if a horse is denied a fair start and its chances in the race are materially prejudiced by reason of the mechanical failure of the starting stalls, then a Judicial Committee may declare the horse a non-starter. The word “may” means that a Judicial Committee has a discretion as to whether or not to declare a horse a non-starter. Mr Ryan has, in his pre-hearing submission provided a detailed synopsis as to how the word “may”, when used in a legal context, should be interpreted and we are grateful for his submissions in this regard. From this Appeal Committee’s perspective, a succinct definition of the exercise of a discretion comes from a decision of Appeal Judges in the case involving the 1996 Kurow Cup. In that decision, the Chairman of the Appeal Judges wrote:
“Deciding how to exercise a discretion involves an intellectual process of weighing relevant factors, excluding irrelevant factors and reaching a rational conclusion capable of explanation with reasons. It requires qualities of sound judgement, wisdom and logic, as well as an instinct for fair play. Discretions are conferred under the Rules of Racing so that decision makers have the flexibility necessary to ensure that racing’s image as a sport is administered with fairness and integrity is fostered and protected. The factors to be weighed or to be excluded can only be identified from the particular facts of each case. For that reason, and because any formula would tend to fetter the decision-maker’s discretion, there cannot be any predetermined list of factors to apply.”
3.3 With this in mind, we now turn to consider the competing arguments against the background of the factual matrix.
3.4 Mr Ryan invited us to consider as part of the overall discretion exercise, as to whether or not the chances of “Pussy O’Reilly” were “materially prejudiced”. Having viewed the video coverage of the start and the race, we find as a fact, which finding we believe to be uncontested, that the starting gates failed and as a result “Pussy O’Reilly” was denied a fair start. It is accepted that it was the jockey’s riding plan to ride close to the leading horses, or in racing parlance, to “ride near the speed”. Again, in racing parlance, the mare was not “put in the race” as was intended. As a result of the starting gates failing, this race plan was frustrated. Thus in terms of the rule, we find that the chances of “Pussy O’Reilly” were materially prejudiced. We further comment that the expression “materially prejudiced” really has to be looked at in context. “Pussy O’Reilly’s” gate did not open in unison with the other gates. As a consequence, the mare jumped awkwardly and was clearly off balance. Mr Kelso, Licensed Trainer, said in the hearing on race day, “she’s probably lost approximately 3 lengths , leaving the barrier as you can see and we intended to ride her 5th, 6th, 4th 5th 6th, so she has definitely been impeded by the way the barriers opened”. The starter, Mr T Harrison said in response to a question from the Chairman, I. Even though from this Appeal Committee’s viewing of the video it only seemed to lose a length or so at the start, it did lose ground in the early part of the race. Thus in the context of this fact situation, we find that the chances of the mare were “materially prejudiced”.
3.5 The result of the combination of these facts means that the Judicial Committee was left with a discretion to exercise, namely whether or not to declare “Pussy O’Reilly” a non-starter, but as we have observed, neither the race day decision or the transcript of the hearing seems to demonstrate how the Judicial Committee exercised its discretion, or whether or not the members of the Committee, turned their minds to the fact that the rule provided for a discretion.
3.6 We are also cognisant of the discussion which took place before the Judicial Committee, of the ongoing problems that there apparently have been with regard to the starting gates in question. That is all very well and we are sure that such a problem will be addressed by racing authorities but it is an irrelevant factor for the purposes of this appeal. The fact of the matter is that there was a mechanical failure and that failure gave rise to this case.
3.7 Furthermore, we are also well aware that this rule was brought into effect before the advent of “First 4” betting and that there are moves afoot to have this rule amended. Notwithstanding, however, that whilst the rule remains in full force and effect, Judicial Committees must interpret and apply the rule as it stands.
3.8 It is the Appellants’ case, that the Judicial Committee erred by not exercising its discretion in favour of “Pussy O’Reilly” by leaving the placings as the horses passed the post. Because the race was a Group 2 race, the Appellants say that the potential commercial value of the horse and its progeny has been affected by it not having “black type” in future sales catalogues for this race. Therefore Mr Ryan says that the placings should remain unchanged and that this appeal should be upheld.
3.9 We interpolate to record at this point, that at the Judicial Committee Hearing, Sir Patrick Hogan raised the issue of the loss of stake earnings. However, we are aware that NZ Thoroughbred Racing Incorporated has a fund set aside to pay an equivalent sum to the stakes to the connections of horses affected by the application of this rule and accordingly, the issue of a loss of earnings is not a “relevant factor” that will be considered by us in our determination of this appeal. Whilst this was not referred to in the Judicial Committee’s decision, we think that we can safely conclude that the Judicial Committee is deemed to have known of this fact. We also understand that the payment from NZTR may have been paid to the connections of “Pussy O’Reilly”.
3.10 We further note that we are aware that those punters affected by the race day decision, will have had their bets refunded but notwithstanding that, the interests of the betting public remains a live issue and a relevant factor for the purposes of this appeal.
3.11 Mr Colson raised with us an interesting point, as to whether or not there was jurisdiction for this appeal to be heard. He referred to Rule 1001(1).
“An appeal may lie against a decision of the Judicial Committee except:
(a) any decision made by a Judicial Committee during the currency of a Race Day or Race Meeting that a horse should or should not be disqualified or placed after another horse on account of something which happened during the running of a race or any findings relating thereto;
(b) any decision made by the Judicial Committee to which Rule 642 of these Rules apply; or
(c) any decision of the Judicial Committee with respect to any matter of fact in connection with weighing, a start in front of the post or on the wrong course, or before the appointed time or in connection with the running of a race over the wrong distance”
Mr Colson said that in this case, whilst the request for a ruling does not lie on all fours with the matters referred to in Rule 1001(1) (a) & (b) in particular, that by inference, because it was a race day decision which affected the betting public, in the same way that a protest or a disqualification affects the punter, that ipso facto, no appeal is available.
Mr Ryan, rather predictably, was of the view that the draftsman of the rule had deliberately omitted reference to the kind of fact situation before us and therefore, a right of appeal must exist.
We choose not to formulate a ruling on this point. From our perspective, this is something that the draftsman of the Rules may or may not consider at a later time.
4. Decision and reasons
4.1 We turn now to the arguments under consideration.
4.2 The Appellants say that the potential commercial value of “Pussy O’Reilly” and its progeny will be affected by the loss of opportunity for “black type” in future sales catalogues. It is noted that the Appellants are concerned about “potential”. That word in itself imports uncertainty. Is a Judicial Committee required to know what might affect the decision of a buyer when looking at a horse in the sale ring? Is a 4th placing in a Group 2 race going to have an input to such an extent to encourage a purchaser to pay a premium for the horse on sale? Possibly so, but it is trite to say that there are many other factors which a buyer of a horse will take into account. Examples include the horse’s conformation and its breeding.
4.3 The real question is to what extent should a Judicial Committee be expected to take into account an uncertain factor such as the owners’ belief that the potential value of progeny might be affected? There are so many imponderable factors that need to be looked at. What if the filly/mare is barren? What if the first foal is stillborn? What if the mare/filly breaks down at its next start and is euthanized? What if the mare wins a Group 1 race in the future, won’t the “black type” for 4th in a Group 2 race pale into insignificance? Supposing this fact situation occurred in a Rating 65 race at a country meeting, would a Judicial Committee have to stop and consider the potential of the mare for its future commercial value in considering its discretion?
4.4 These are the uncertainties that accompany the breeding and racing of horses and it is this Appeal Committee’s view that such an argument should not carry much weight in the minds of a Judicial Committee when exercising its discretion in a case such as the one under consideration. A Judicial Committee should not be required to speculate on the matters which are referred to.
4.5 On the other hand, we have the certain argument that the betting public was affected. Win/place/quinella and trifecta punters were affected as their bets may well have been affected by the failure of the starting gates. We recognise that the “First 4” bettors were affected by the Judicial Committee’s decision and that is unfortunate. Mr Colson, of Counsel for the respondent, provided figures made available by the TAB, which showed that of a total of bets refunded in New Zealand of $51,216-00, only $4,922-00 was refunded for “First 4” bettors. TABCorp of a total of $11,816-00, refunded $2118 to “First 4” bettors. Mr Ryan said that it was unfair to deprive otherwise successful “First 4” bettors of their dividend, but as we have said that is unfortunate. At least they are not totally out of pocket.
5. In summary
It is this Appeal Committee’s view that having taken into account the relevant factors and excluded the irrelevant factors that in this instance the interests of the betting public must, in terms of the exercise of our discretion, override the interests of the connections of the horse. We find that “Pussy O’Reilly” was properly declared a non-starter. The appeal is dismissed accordingly.
6. Costs
The parties are to file submissions on costs with the Registrar within 7 days of the date of this decision.
Dated this 7th day of April 2015
K G Hales (Chairman) N McCutcheon
Appeals Tribunal Appeals Tribunal Member
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