Appeal TW Mitchell v RIU – Decision of Appeals Tribunal on Costs dated 7 August 2012

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hearing_title: Appeal TW Mitchell v RIU - Decision of Appeals Tribunal on Costs dated 7 August 2012

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Decision:

BEFORE THE APPEALS TRIBUNAL

IN THE MATTER of the New Zealand Rules of Harness Racing

BETWEEN TODD WILLIAM MITCHELL

Appellant

AND THOMAS RODNEY CARMICHAEL (on behalf of Harness Racing New Zealand)

Respondent

Appeals Tribunal:  Bruce Squire QC (Chairman), Professor Geoffrey Hall

Counsel:  Ms M J Thomas – Counsel for Mr Mitchell, Mr C J Lange – Counsel for HRNZ

DECISION OF APPEALS TRIBUNAL ON COSTS

1. Introduction:

1.1. On 12 July 2012 we delivered our Decision on an appeal brought by Mr Mitchell against the penalty imposed upon him by a Judicial Committee following his admission of three charges of presenting a horse for a race with a total carbon dioxide level in excess of 35 mmol/L in plasma in breach of R.1004 (1A), 1004 (1) and 1004 (2) in two of the charges and in the third charge of R.1004 (1A) and 1004 (3). The details of the charges are set out in our Decision of 12 July and do not need to be repeated here.

1.2. Following the hearing of evidence which went to the level of Mr Mitchell’s culpability for the purpose of assessing penalty, and which is explained in detail in our Decision of 12 July, the Judicial Committee disqualified Mr Mitchell for a period of one year commencing from 19 April 2012 and ordered him to pay costs to the Judicial Control Authority in the sum of $2,150.00 and reserved the question of costs to HRNZ. The penalty followed the Judicial Committee’s assessment of Mr Mitchell’s conduct, as explained in our decision of 12 July, as “reckless in the extreme”.

1.3. The Appeal brought by Mr Mitchell against the penalty imposed on him by the Judicial Committee was brought on five grounds which are set out in paragraph 5.2 of our Decision of 12 July. As matters transpired two of the grounds of appeal were not pursued and those that were, were treated by us as aspects of the general ground of appeal that the sentence imposed upon Mr Mitchell was manifestly excessive.

1.4. In our Decision of 12 July we did not uphold the particular grounds of appeal pursued by Mr Mitchell but concluded the Judicial Committee’s characterisation of his conduct as “reckless in the extreme” was not warranted on the factual findings it made. As a result we quashed the period of one year’s disqualification and in its place imposed a period of disqualification of nine months to commence from 19 April 2012 and ordered Mr Mitchell to pay a fine of $1,500.00 on each of the three charges he had admitted. We also ordered him to pay the costs of the Judicial Control Authority as previously ordered by the Judicial Committee and any costs which may have been awarded to the Informant by the Judicial Committee. In relation to the appeal which we had upheld on the limited basis outlined, we indicated Mr Mitchell was to pay costs to both the Informant and the Judicial Control Authority, but assessed on a more limited basis than would otherwise have been the case had his appeal wholly failed.

1.5. We sought submissions from Counsel as to the appropriate award of costs to be made in light of that indication. Submissions have now been received from Counsel and we are in a position to deal with the issue.

1.6. Counsel for the Informant has advised the costs of the Racing Integrity Unit were $1,293.75 and the costs of the Judicial Control Authority $2,475.00. Counsel for Mr Mitchell has advised his costs in advancing his appeal were $1,016.51. Counsel for the Informant in his submissions referred to the Decision of the Appeals Tribunal in B v RIU (21 December 2011) and the observations made by the Tribunal in that case that funds utilised to meet expenses incurred in taking disciplinary proceedings, come from allocations from the New Zealand Racing Board and partly from fees and levies and that unless effective steps are taken to recover those expenses, the utilisation of funds for disciplinary purposes is inevitably at the expense of the Judicial Control Authority’s and the codes’ other activities in relation to racing. Counsel accepted however that in this case it was appropriate costs be awarded on a more limited basis than might otherwise have applied.

1.7. Counsel for Mr Mitchell in her submissions acknowledged the Appeals Tribunal has what she called an “unfettered discretion” as to costs in any case and also referred to the case of B as comparable to the present case in as much as costs had been awarded in favour of the Appellant, notwithstanding the appeal succeeded only on one of two grounds advanced. On that basis Counsel submitted it would be wrong in principle for costs to be awarded against Mr Mitchell and that what she called the “usual course” of costs being awarded to the successful party should be followed in this case.

2. Discussion:

2.1. The observation has been made in previous cases by the Appeals Tribunal that while the discretion to award costs under R.1207 (3) is, on the face of it, unqualified with no presumption either way it is nonetheless to be exercised on a principled basis. In exercising our discretion in this case, as in other cases, we have been guided by the observations of the Appeals Tribunal in the B case and the Judicial Committee in NZTR v McA (17 March 2011) recognizing the difference that our function in this case has been that of an appellate Tribunal.

2.2. In our Decision of 12 July 2012 (paragraph 5.8) we observed that as Mr Mitchell had succeeded in the appeal to a limited extent but not for the principal reasons advanced by his Counsel, he should be responsible for costs on the appeal on a more limited basis that would otherwise be the case had his appeal failed. We think that observation and the assessment of costs on this appeal in that way falls within the principles outlined in B and McA and at the same time gives appropriate recognition to the fact Mr Mitchell’s appeal succeeded and the basis upon which it succeeded.

2.3. Approaching the exercise of our discretion in that way we think Mr Mitchell should be required to meet 30% of the costs of HRNZ and the Judicial Control Authority which we round off at $390.00 and $745.00 respectively. We note no issue was taken by Counsel for Mr Mitchell in relation to the quantum of costs advised and sought by HRNZ and the JCA.

3. Result:

3.1. In the result, for the reasons outlined:

(a) Mr Mitchell is to pay costs to HRNZ in the sum of $390.00;

(b) Mr Mitchell is to pay costs to the Judicial Control Authority in the sum of $745.00.

Orders are made accordingly in terms of R.1207 (3)

DATED at Wellington this 7th day of August 2012

_______________________
Bruce Squire QC (Chairman)
Signed: Pursuant to R.1207 (4)
 

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