Appeal SL McCaffrey v RIU – Decision as to Costs 3 July 2012

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hearing_title: Appeal SL McCaffrey v RIU - Decision as to Costs 3 July 2012

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Decision:

BEFORE AN APPEALS TRIBUNAL
HELD AT CAMBRIDGE

IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN Mr SL McCaffrey – Licensed Trainer and Horseman

Appellant

AND The Racing Integrity Unit on behalf of Harness Racing New Zealand - (Mr JM Muirhead, Stipendiary Steward appearing)

Respondent

Tribunal: BJ Scott (Chairman) – Mr JN Holloway (Panellist)

Present: Mr SL McCaffrey – the Appellant – by written submissions, Mr JM Muirhead – Stipendiary Steward representing the Respondent – by written submissions

Date of Written Decision: 6th of June 2012

DECISION OF APPEALS TRIBUNAL AS TO COSTS

1. In our substantive decision in this matter we noted that Mr McCaffrey having been successful was entitled to make Submissions as to Costs. We gave an appropriate timetable for this.

First Submissions by Mr McCaffrey

2. Mr McCaffrey’s initial submission was somewhat brief and he sought a refund of his filing fee of $250.00 and he sought a further $500.00 to cover his expenses. He mentioned legal services, secretarial typing services, photocopying, tolls etc.

Mr McCaffrey did not however provide copies of any invoices or a final Schedule of Costs.

First Submissions by Mr Muirhead

3.1 Mr Muirhead provided written submissions in response. The essence of those submissions were that the charge on race day was properly brought by the Stewards. He further submitted that the Appeal was successful because “it appears that the primary issue at the heart of the matter is the wording of the relevant Rule”.

Mr Muirhead submitted that costs should lie where they fall.

3.2 Mr Muirhead further submitted in response to the Appellant’s submissions was that firstly Mr McCaffrey represented himself at the Appeal.

Secondly the Appeal was held at Cambridge which is where Mr McCaffrey’s stables are located and it was prior to a Race Meeting so there were no travel costs involved.

Thirdly the transcript of the original Hearing was provided by the RIU at its cost.

3.3 Mr Muirhead drew the Tribunal’s attention to the fact that Mr McCaffrey had not provided a Schedule of Costs but rather had just thrown in a “ball park amount” and as far as Mr Muirhead was concerned that could not be justified.

3.4 Mr Muirhead also submitted that awards of costs for comparative Appeals have generally been very modest if at all. He did not however provide any examples of such costs.

3.5 Mr Muirhead’s further submission was that if any costs were to be awarded then such an award would have to be “at significantly the lower end”.

Second Submissions by McCaffrey

4. In response Mr McCaffrey took the opportunity to provide further written submissions and the essence of these were as follows:

4.1 He submitted that when Mr Muirhead approached him on the several occasions prior to the hearing of the Appeal, the advice to Mr McCaffrey was “not to proceed with the Appeal because I would not succeed and that he (Mr Muirhead) would be seeking costs against me”.

Mr McCaffrey firmly submitted that if the RIU had have been successful in having the Appeal dismissed then the RIU would have sought an Order for Costs against him.

Mr McCaffrey submitted that this approach was quite inconsistent with the RIU’s current approach that costs should lie where they fall.

4.2 Mr McCaffrey then said that as a result of the approaches from Mr Muirhead he obtained legal advice and a legal opinion on the matter at his expense.

4.3 Mr McCaffrey then submitted that Mr Muirhead in his submissions had criticized the Tribunal and further contended that the Appeal was really determined on the ambiguity of a Rule. Mr McCaffrey submitted that that was not correct and that paragraph 8.6 of the Decision made this very clear.

4.4 Mr McCaffrey submitted that the Hearing, albeit at Cambridge and albeit prior to a Race Meeting was an inconvenience to him because of the number of horses he had racing that evening. He said that he had to arrange other staff to assist so that he could attend the Hearing.

4.5 Mr McCaffrey did not accept Mr Muirhead’s submissions that awards of costs in these matters are generally modest. He said that on his review of Appeal cases where Appellants had been unsuccessful the RIU/Informant has invariably sought significant costs. Mr McCaffrey did not however provide any examples of those.

4.6 Mr McCaffrey’s concluding submissions were that there was no merit in the submissions of Mr Muirhead in costs not being awarded and he believes that he is entitled to costs because he was successful.

Second Submissions by Mr Muirhead

5. Mr Muirhead then took the opportunity to respond to Mr McCaffrey’s further submissions. The essence of his submissions were as follows:

5.1 He said that in approaching Mr McCaffrey prior to the Hearing, this was purely offering an opinion and nothing else.

5.2 Mr Muirhead refuted Mr McCaffrey’s suggestion that he (Mr Muirhead) criticized the Tribunal’s decision. Mr Muirhead went further to say that “the RIU completely and unreservedly accepts the Tribunal’s determination and is in fact guided by the recommendations made”. Mr Muirhead made a further submission concerning Mr McCaffrey’s submission that he had incurred legal expenses. Mr Muirhead drew the Tribunal’s attention to the fact that in his first submission he pointed out that Mr McCaffrey had not submitted a Schedule of Costs and he said that given the importance of such a Schedule it was disappointing to see that one had not been supplied with Mr McCaffrey’s second Submission as to Costs.

5.3 Mr Muirhead drew the Tribunal’s attention to the fact that Mr McCaffrey had agreed to have the Appeal heard at Cambridge and prior to a Race Meeting.

5.4 Mr Muirhead again commented on costs in previous Decisions. He said that where successful the RIU would attempt to recover costs from an unsuccessful Appellant but he said that “it is a matter of record that such recoveries are reflective of the actual costs expended and indeed are generally very modest”. He further submitted that the RIU attempts to mitigate expenses as much as possible by conducting non Race Day and Appeal Hearings as near to the domicile of the affected party as is possible. That was the case in this Appeal.

5.5 By way of summary Mr Muirhead said that the RIU does not have any issue with the principles in awarding costs to a successful Appellant but he submitted that such costs must be real and directly related to monies expended. He again submitted that Mr McCaffrey had not provided any Schedule of Costs nor did he have any representation at the Hearing nor did he have to travel to attend the Hearing.

5.6 Mr Muirhead then again submitted that costs should lie where they fall.

Reasons for Costs

6. The original penalty imposed by the Race Day Judicial Committee was a fine of $100.00. The Appeal by Mr McCaffrey therefore has not been for economic reasons but rather for reasons of principle.

The Tribunal recognises the importance of principle and Mr McCaffrey was not only entitled to appeal but he has also been successful.

6.1 In his submissions on Race Day, Mr McCaffrey said that when his horse was inspected he was not in the “Assembly Area” or the “Birdcage” and therefore he had not presented his horse to race and so was not at that point where he was required to have pacifiers on. The evidence presented at the Hearing supported this although we must say that the photographic evidence was not available to the Race Day Committee.

6.2 In his further submissions Mr McCaffrey focused on the conduct of the Respondent and the Respondent’s attitude to costs if the Appeal had been dismissed. Mr McCaffrey also told us in general terms about the costs to him and the inconvenience. We do not think that holding an Appeal at Cambridge several hours prior to a Race Meeting is an inconvenience for Mr McCaffrey, it is quite the opposite.

Mr McCaffrey has not provided us with a Schedule of Costs although this was drawn to his attention by Mr Muirhead in his first submissions. The only actual cost that Mr McCaffrey can point to is the filing fee.

6.3 Mr McCaffrey paid the filing fee of $250.00 in the knowledge that it was a filing fee and was non refundable. That was made quite clear to him. Future Appellants should be aware that the filing fee is just that and it paid to the Judicial Control Authority for administrative purposes and is non refundable.

6.4 Mr Muirhead for his part has told us that the charge on Race Day was properly brought by the Stewards with the matter ultimately turning on the issues surrounding the wording of the Rule. We do not accept that. The Rule and the definition of “Assembly Area” are in our opinion very clear and this was certainly endorsed by the photographic evidence produced to us at the Hearing.

This was a very clear decision as far as we were concerned and we take the opportunity to repeat paragraph 8.6 of the Decision

“The evidence before us is very clear in that at the point of inspection the horses have not assembled nor do they in fact assemble in the walkway but rather they assemble in the birdcage. A further point is that the Assembly Area is the area where horses are assembled prior to entering the track. The walkway towards the birdcage is not part of this”.

6.5 Both Mr McCaffrey and Mr Muirhead have spoken about previous Awards of Costs but neither has provided any examples to us.

6.6 At the end of the day Mr McCaffrey has been successful and he is entitled to seek costs. In our opinion his actual costs are not significant apart from the filing fee and any Award of Costs should be sufficient to cover reimbursement of that fee.

Decision as to Costs

7. For the reasons set out above the Tribunal makes the following Orders:

(a) The Respondent is ordered to pay costs to the Appellant in the sum of $350.00. For the sake of clarity this amount includes the filing fee paid by Mr McCaffrey.

(b) The Respondent is ordered to pay costs to the Judicial Control Authority in the amount of $350.00.

Dated this 3rd day of July 2012
 

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