Non-Raceday Inquiry – Ali Gee

hearingid: 068adee29a880b986aa15633cd34bc16

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hearing_racingtype: thoroughbred-racing

startdate: 01/01/2001

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decisiondate: no date provided

hearing_title: Non-Raceday Inquiry - Ali Gee

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Following the hearing of the above information on 6^th July 2006, being a request for a ruling by the abovenamed Informant, the horse ALI GEE was disqualified from 1^st placing in the Bone Marrow Cancer Trust Maiden (Supported by Lyndsay Distributors), being Race 2 of the meeting of Canterbury Jockey Club held at Riccarton Park on 9 November 2005.

AND

IN THE MATTER of Information No.41307 filed by ROBIN DAVID SCOTT, Racecourse Inspector for New Zealand Thoroughbred Racing

DATE OF HEARING:  Thursday 6 July 2006

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Following the hearing of the above information on 6^th July 2006, being a request for a ruling by the abovenamed Informant, the horse ALI GEE was disqualified from 1^st placing in the Bone Marrow Cancer Trust Maiden (Supported by Lyndsay Distributors), being Race 2 of the meeting of Canterbury Jockey Club held at Riccarton Park on 9 November 2005. This followed a post-race urine swab which subsequently tested positive to N-3(trifluoromethylphenyl) piperazine, commonly known as TFMPP, a prohibited substance under the New Zealand Rules of Racing. The disqualification was made pursuant to the provisions of Rule 1004 (1) of the New Zealand Rules of Racing.

ALI GEE is owned by Bend the Arm Syndicate No.3, P D J Harris and the Ratpack Syndicate and is trained at Rangiora by P D J Harris.

The information, in addition to seeking disqualification of ALI GEE from the race, also sought an order "for costs associated with inquiries by New Zealand Thoroughbred Racing into matters arising as a result of the detection of a prohibited substance". At the hearing before this Committee on 6 July last, Mr J W McKenzie, Chief Racecourse Inspector for NZTR, made lengthy and detailed submissions in support of the order for costs and sought an order in the sum of $8,678.00 against the owners of ALI GEE. Mr A J Ryan, Counsel for the owners and trainer of ALI GEE, had filed with the Registrar written submissions in opposition to any order for costs being made. The Committee is grateful for the helpful submissions of Messrs McKenzie and Ryan.

At the conclusion of the hearing on 6 July last, the Committee reserved its decision in relation to the matter of costs.

The power for a Judicial Committee to award costs is given by Rule 1122 (3) of the New Zealand Rules of Racing which provides as follows:

Mr McKenzie's submissions may be summarised as follows:

1. Mr McKenzie explained that NZTR's records show that Mr J P Bowden is the Administrator for the lessees of ALI GEE and, for this reason, has been named as the owner in these proceedings. Mr McKenzie referred to Rule 821 (1).

2. NZTR accepts that, with the exception of Mr Harris, who is also a part-owner as a lessee, none of the other owners would have had any knowledge of the administration of the prohibited substance which had been added to the contents of the product "equiBOLIC" prior to its being sealed with a tamper-proof cap and placed on sale at retail outlets.

3. The investigation was prolonged due to information being passed on to the Inspectors that the positive swab was a direct result of administration/contamination by employees of Mr Harris. After extensive enquiries, it was apparent that this was not the source of the positive swab. Much time had been wasted and apologies were tendered to employees.

4. Enquiries revealed that "equiBOLIC" was the source of the prohibited substance. The manufacturer had failed to meet production control standards.

5. The fact that Mr Harris had used the product in good faith under veterinary advice does not diminish the fact that the horse had returned a positive swab. An inquiry was necessary which, for various reasons, incurred considerable costs.

6. NZTR accepts that it has a responsibility to bear the costs of controlling racing, including the detection of prohibited substances. This does not mean that the total costs must be borne. In addition to the costs of the investigation by the Inspectors, considerable analytical cost of additional elimination material was incurred which resulted in the detection of the problem and avoidance of the trainer being charged.

7. Further costs were incurred by way of consultancy fees by NZTR's veterinary consultant, Dr Andrew Grierson, and other experts. It was not accepted by the owners of the horse, until the end of June 2006, that the substance was a prohibited substance and this added to the costs.

8. The costs sought are actual costs incurred as a direct result of the inquiry and no costs have been sought for the time and effort put into the inquiry by NZTR's inspectors.

9. The owners will have the opportunity to recover the costs from the trainer who can, in turn, seek to recover them from the manufacturer of the product, "equiBOLIC".

10. If the costs of the inquiry were not, in part, the responsibility of the owners then all racing inquiries and associated costs would fall to be paid solely by NZTR. Costs are invariably sought by NZTR and awarded by Judicial Committees and Appeal Tribunals.

11. But for the competence and diligence of the Inspectors who investigated the matter, the trainer would have been charged on the basis of the original sets of analyses. It was not until further investigation, beyond normal requirements, that the source of the prohibited substance was isolated.

Mr Ryan's written submissions may be summarised as follows:

1. The connections of the horse "strongly oppose" the application for costs on the basis that the owners and the trainer are completely innocent persons insofar as any wrongdoing is concerned.

2. The original veterinary certificate from Dr Grierson was in such equivocal terms that it was felt necessary to take steps to ascertain whether or not the substance had ever been detected in any other racehorse or had been the subject of clinical tests to establish whether it was a substance capable of affecting performance.

3. In the initial stages, it was suspected that the one or more of Mr Harris' staff may have been involved in the taking of party pills resulting in the presence of the prohibited substance. While enquiries revealed that one staff member had been involved in such behaviour, it transpired that source of the prohibited substance was the "equiBOLIC".

4. The connections of the horse went to "extraordinary lengths" to satisfy themselves as to whether or not the substance detected was one prohibited by the Rules of Racing.

5. It was not until all of the information had been received that the connections of the horse, and Mr Ryan, were able to properly evaluate the totality of the information and reach their decision not to oppose the disqualification of the horse.

6. The connections of the horse were totally bewildered by the result of the swab and they have always acted with the utmost good faith.

7. The general rule is that costs follow the event but there is a discretion in any tribunal as to any award of costs. Usually, costs are a penalty imposed against a party for its failure to either make out its case or to provide a suitable defence to a charge or information made by another party.

8. The connections of the horse have themselves been put to substantial expense. They were in no way culpable or guilty of any wrongdoing and it would be "a travesty of justice" if costs were awarded against them.

9. The discretion to be exercised by the tribunal is a judicial one according to what is reasonable and just.

10. The present proceedings are very much a "test case" in respect of a substance which has not appeared on the racing scene previously. The Courts often deem it appropriate that no costs are awarded against an unsuccessful litigant clarifying the law in some respect. The finding in this case as to disqualification will ensure that all those associated with racing will not be tempted to use the substance to improve the performance of a horse. The criteria as far as a "test case" is concerned are therefore met.

12. Mr Ryan referred to two earlier cases where costs have not been awarded against the connections of a horse where positive drug tests have been involved.

13. NZTR is charged with administration of racing pursuant to the Racing Act 2003. That would involve from time to time NZTR being required to carry out work, investigation and the like in relation to a whole range of matters for which there will be no specific reimbursement. It is part and parcel of the costs which the industry bears for the efficient and honest conduct of racing.

14. Mr Harris and his advisers were not at fault in bringing information as to the use of party pills by one of the employees in his stable to the attention of the Racecourse Inspectors. At that time, there was no other explanation for what had occurred other than that one of the staff members may have inadvertently contaminated the feed of the horse. That was not a waste of time but a necessary part of the investigation at that early stage.

15. The costs incurred by NZTR should be borne by the industry as a whole and not by innocent parties. Costs should lie where they fall.

A letter from Mary McCarty, Executive Officer of the New Zealand Trainers' Association Incorporated, was produced. It stated that the fact that NZTR was seeking costs relating to the investigation was of great concern to the Association. It pointed out that the trainer and owners were "completely innocent of any wrongdoing". The tests in this case have provided NZTR with valuable information which may well be utilised in future investigations and innocent parties should not be faced with a bill for the costs of those tests. The industry is concerned about maintaining its existing ownership base and, at the same time, adding to those involved as owners. To impose costs on the owners of ALI GEE would not only ensure the end of their involvement but also send a message to others considering involvement in racing.

"Costs" may be defined as "the remuneration and expenses incurred in relation to legal action". Rule 1122 (3), referred to above, gives the Judicial Committee a discretion in relation to any award of costs and expenses. In the Courts, the guiding principle has been that orders for costs should be based upon a reasonable contribution towards the successful party's fair and reasonable costs and expenses incurred by that party in enforcing or defending his or her rights.

NZTR is claiming costs in the sum of $8,768.00 made up of travel expenses and mileage of three Racecourse Inspectors and costs of expert consultants ? New Zealand Racing Laboratory Services ($4,946.00) relating to analysis of the sample and reserve sample and analysis of the product "equiBOLIC" and Dr Grierson ($1,000.00). A footnote to the Schedule of Costs filed states: "No costs have been sought for time, salaries, preparation of the file, for both investigation and prosecution. These however are substantial but accepted in this case as part and parcel of racing control." The Committee accepts that NZTR has been fair in attempting to minimise its claim for costs.

Following the positive swab of the post-race urine sample taken from ALI GEE after it won the Riccarton race, it was clearly encumbent upon NZTR to investigate the circumstances of the positive swab with a view to seeking disqualification of that horse if the substance detected in the sample was a prohibited substance under the Sixth Appendix to the New Zealand Rules of Racing. The investigation was, of necessity, more wide-ranging than normal because the substance, piperazine, had not been previously been detected in any sample taken in New Zealand and, apparently, is most rare internationally. As a result, the investigation was lengthy and expensive but the outcome of the investigation was that the substance was indeed a prohibited substance under the Rules ? a fact that was ultimately accepted by the connections following inquiries of their own through their counsel, Mr Ryan.

Prior to the hearing of the request for a ruling to disqualify the horse, the connections of ALI GEE indicated, through Mr Ryan, that they did not oppose the disqualification. NZTR has submitted that the late advice by the connections resulted in the investigation being lengthier and involving more costs and expenses being incurred by NZTR. This may be so. However, it is undeniable that there was an onus placed on NZTR to investigate the matter to the point where it could satisfy a Judicial Committee that the substance detected in the sample was a prohibited substance and that, as a consequence, the horse should be disqualified. It is trite to say that the need to maintain integrity and public confidence in racing demands that racing be conducted drug-free. This is part of the function of NZTR - to ensure that racing is conducted drug-free - and there will always be a cost associated with carrying out that function. It will not be possible in all instances for NZTR to recover all or any of that cost.

That function has always been carried out to a very high standard and this case is no exception. Persons in the industry and the betting public can take considerable comfort from the painstaking thoroughness with which this investigation has been carried out by NZTR. As a result of the thorough investigation, the exact cause of the positive swab was able to be determined and, in addition, it was able to be confirmed with certainty that the substance detected was a prohibited substance. The investigation also resulted in the trainer, Mr Harris, being cleared of any wrongdoing and not being charged as a consequence. It is often the case that the exact set of circumstances resulting in a positive swab is not known and the trainer is then charged with and convicted of a breach of the very strict drug rules. That would have resulted in an injustice in this case had Mr Harris been charged. However, in this case, NZTR was satisfied that Mr Harris had "taken all proper precautions to prevent the administration or presence" of the prohibited substance. The Committee believes that the decision by NZTR not to charge Mr Harris was the correct one.

Mr McKenzie, on behalf of NZTR, acknowledged that none of the owners, other than Mr Harris who was also a part-owner, "would have had any knowledge of the administration of the prohibited substance Piperazine".

Mr McKenzie further submitted: "If the costs of inquiry were not in part the responsibility of the owners, be it through the actions of their agent (the trainer) then all racing inquiries and associated cost would fall to be paid solely by NZTR."

The Committee accepts that, in most drug cases, it would be appropriate for costs and expenses to be ordered in favour of NZTR. However, such orders are almost invariably made in the context of a charge proved against the trainer of the horse. In the present case, there has been no such charge and the Committee sees this as being a material factor in exercising its discretion whether or not to make an order for costs.

The information filed was by way of a request for a ruling seeking, firstly, disqualification of ALI GEE from the race and, secondly, an order for "associated costs". There is no defendant in the proceedings and, it is fair to say, an order for costs is normally made against an unsuccessful defendant. An order for costs against an unsuccessful defendant is generally regarded as being part of the penalty imposed for the particular breach of the Rules. On the other hand, where a defendant defends the charge and the charge is dismissed, no order for costs would be made against him.

The Committee can see no grounds for ordering costs arising from a request for a ruling against the owners of the horse where those owners are, as acknowledged by NZTR, entirely innocent of any wrongdoing. The action on the part of NZTR of requesting a ruling from a Judicial Committee to enable the horse to be disqualified from the race was entirely appropriate and the horse has been duly disqualified. NZTR is to be commended, as stated above, for the thorough manner in which it investigated the positive swab by ALI GEE, leaving no stone unturned to discover the source of the prohibited substance. However, this Committee is not prepared to order that innocent connections must reimburse or partly reimburse NZTR, the controlling body of thoroughbred racing, for costs and expenses incurred by it in investigating the matter.

In the 1998 case of Watts, the Judicial Committee declined to make an order for costs. In that case, a positive swab to caffeine was found to have resulted from sacks which had contained an oaten chaff feed. When tested, a number of the sacks produced a positive finding to the presence of caffeine, the sacks having originally contained coffee beans. The trainer in that case was not charged. In relation to costs, the Judicial Committee stated: "The Committee records that there was no fault in any way whatsoever on the part of the trainer in this case??The cause of the positive swab was not contributed to by the trainer or the connections of the horse." In a number of respects, the Watts case is similar to the present case.

The Committee wishes to make it clear that it is not saying that it will never be appropriate for costs to be awarded in a case that follows a drug investigation. The present case is to be treated strictly on its own facts, the unusual circumstances of the case being:

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• The prohibited substance, TFMPP, was unfamiliar to the authorities necessitating an investigation not only more protracted but also more costly than would normally have been the case. However, the Committee does not regard these proceedings as having been a "test case";
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• The trainer was cleared of any wrongdoing following the investigation;
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• The other owners of the horse were completely innocent;
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• No person was charged following the outcome of the investigation;
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• The information filed sought only rulings and there was no defendant; and
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• The owners did not contest the disqualification of the horse.
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Having regard, in particular, to those matters, the Committee rules that, in relation to the ruling sought by NZTR that the owners of the horse be ordered to pay "costs associated with inquiries into matters arising as a result of the detection of a prohibited substance", there will be no order for costs in this matter.

R G McKenzie

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hearing_type: Old Hearing

Rules: 1004.1, 1122.3, 821.1

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