Non Raceday Inquiry Request for Ruling JT McInerney – Decision dated 3 July 2014

hearingid: e94b5c22f2c533dff5dea4fbedee999b

informantnumber:

horsename:

hearing_racingtype:

startdate: no date provided

newcharge:

plea:

penaltyrequired:

decisiondate: 03/07/2014

hearing_title: Non Raceday Inquiry Request for Ruling JT McInerney - Decision dated 3 July 2014

charge:

facts:

appealdecision: NO LINKED APPEAL DECISION

isappeal:

submissionsfordecision:

reasonsfordecision:

Decision:

BEFORE A JUDICIAL COMMITTEE

HELD AT CHRISTCHURCH

UNDER the Rules of New Zealand Greyhound Racing Association

(Incorporated)

IN THE MATTER of Information No. A5804 Requesting Rulings

BETWEEN CHRISTOPHER BOYD, Stipendiary Steward for the Racing Integrity Unit

Informant

AND JOHN THOMAS McINERNEY of Darfield, Licensed Public Trainer

Respondent

Judicial Committee: R G McKenzie, Chairman - S C Ching, Committee Member

Date of Decision: 3 July 2014

RULINGS OF JUDICIAL COMMITTEE

Information No. A5804

[1] Information No. A5804 has been filed by the Informant requesting rulings as to the following matters:

(a) The following greyhounds were nominated for and drawn into fields at the meetings of the Wanganui Greyhound Racing Club held on 30 December 2013 and the Southland Greyhound Racing Club on 31 December 2013.

Race 1: Homebush Titan, Grunt Rodgers and Jasper Haka
Race 2: Cedric Baxter and Miss Selfies
Race 3: Bad Week and Chocdee Alice
Race 4: Yaldhurst Edward and Botany Pete
Race 5: My Little Oah
Race 6: Homebush Coral
Race 7: Cawbourne Kesha
Race 8: Botany Kevin
Race 9: Jumpin’ Julia and Botany Prancer
Race 10: Homebush Iris and Waimak Dave
Race 11: Cawbourne Philip and Another Colt

[The Race numbers shown above are races at the Southland Greyhound Racing Club on 31 December 2013]

Grunt Rodgers (Race 1), Miss Selfies (Race 2) and Chocdee Alice (Race 3) did not race at the meeting of Wanganui GRC and duly fulfilled their racing obligations at the Southland GRC. Cedric Baxter (Race 2), Botany Pete (Race 4) and Botany Prancer (Race 9) were withdrawn from the Southland GRC for injury. All scratchings for the meeting of the Southland GRC were withdrawn by Mr Jonathan McInerney on 30 December 2013.

(b) Have the greyhounds listed above and trained by the Respondent, Mr John Thomas McInerney, been withdrawn from the Southland GRC meeting on 31 December 2013 by the “nominator” (as required by Rule 64.1)?

(c) Have any of the greyhounds nominated and not gaining a start (16 such greyhounds) been withdrawn “without valid reason” under Rule 64.2 or does the written submission from Mr Jonathan McInerney dated and received on 29 December 2013 constitute grounds for such valid reason and reconsideration of the 28 day suspension for each dog (Rule 64.5)?

(d) Is the withdrawal of Waimak Dave, a reserve runner in Race 10, a valid withdrawal as the Club Secretary advised at 4.50pm on Sunday, 29th [December], that the greyhound had gained a start in the field subsequent to the withdrawal of another runner in accordance with Rule 63.7 and 63.8?

Jurisdiction

[2] The Greyhound Racing New Zealand Rules of Racing do not specifically provide a procedure for requesting a ruling from a Judicial Committee. However, Rule 92.5 provides as follows:

The Judicial Committee shall have jurisdiction to hear and determine all proceedings referred to it pursuant to these Rules . . .

[3] The Committee records that the Informant has undertaken that, irrespective of the rulings to be made by the Committee, no charge or charges will be filed against the Respondent.

[4] The documents filed with the Judicial Control Authority, in support of the request for rulings, comprise the following:

(i) Information A5804 and the Schedule attached thereto;
(ii) Statement dated 29.12.13 by Jonathon McInerney;
(iii) Statement by Venessa Trass, Secretary of Wanganui Greyhound Racing Club; and
(iv) New Zealand Racing Integrity Unit Transcript of Interview on 31 December 2013 by the Informant with Paul Conner, Southland Greyhound Racing Club President, and Bronwyn Eade, Secretary-Manager of Southland Greyhound Racing Club.

[5] The Committee, in a written Minute dated 29 May 2014, directed that any of them the RIU, Mr McInerney, Southland Greyhound Racing Club and Wanganui Greyhound Racing Club could file written submissions by not later than Friday, 13th June 2014.

[6] Written submissions have been received from Southland Greyhound Racing Club.

The Facts

[7] The Committee has perused the documents referred to in paragraph [6] (ii), (iii) and (iv) above and the written submissions received from Southland Greyhound Racing Club to determine the facts. We find the facts to be as follows:

(1) Nominations for both of the Southland Greyhound Racing Club (“Southland”) and the Wanganui Greyhound Racing Club (“Wanganui”) meetings closed on 24 December 2013.

(2) At approximately 12.45pm on that date, Mr McInerney jnr spoke with Bronwyn Eade, Secretary/Manager of Southland, and enquired whether the fields had been done. He was informed that they had not and would not be ready for at least another hour. Mr McInerney jnr said that he would call back as he needed to know what dogs had got into the fields for the meeting.

(3) Mr McInerney jnr then telephoned Wanganui to enquire what dogs were in the fields for that Club. He was told by the Selector, Mr Alan Trass, to call back in 30 minutes as he had not finished doing up the points.

(4) Mr McInerney jnr telephoned Wanganui back some 30-40 minutes later and was told which of his dogs had gained a start at that Club’s meeting – a total of 24 dogs.

(5) It was necessary for Mr McInerney jnr to withdraw 4 dogs from the Wanganui meeting as they were only able to transport 20 dogs to that meeting. He telephoned Alan Trass and asked him to hold the nominations for a short time to give him the opportunity to find out from Southland whether their fields had been drawn. He was subsequently permitted to withdraw 4 dogs from the Wanganui fields.

(6) Between 2.00-2.20pm (according to Bronwyn Eade), Mr McInerney jnr telephoned Bronwyn Eade and asked what dogs were in the Southland fields. He was informed that a total of 29 dogs were in the fields. Of those 29 dogs, 18 were entered to race at both meetings.

(7) Mr McInerney jnr requested that Southland withdraw 14 of his dogs from their race fields. He was informed by Bronwyn Eade that the fields had already been done and the Club would not permit those dogs to be taken out of the fields.

(8) The Wanganui fields, which included the 20 McInerney dogs, were completed at approximately 2.00pm.

(9) At 3.15pm, Virginia Trass, Secretary of Wanganui, telephoned Bronwyn Eade to discuss Mr McInerney jnr’s request to withdraw the dogs from the Southland fields but Bronwyn Eade told her that Southland did not intend to allow the dogs to be withdrawn.

(10) A copy of the Wanganui fields were then sent by fax to Southland with a view to informing that latter Club which of the McInerney dogs had gained a start there and, therefore, would be unable to race at the Southland meeting on the following day.

(11) At 3.47pm, Wanganui telephoned Racing Integrity Unit Stipendiary Steward, Mr Gavin Whiterod, for advice. Mr Whiterod subsequently called Wanganui back to inform them that they should have first right as they had drawn their fields at 2.00pm and Southland had done so at approximately 3.55pm.

(12) After the telephone conversation at 3.15pm between Virginia Trass and Bronwyn Eade, the Southland fields were not sent to Greyhound Racing New Zealand “till a bit later” because of, according to Southland, difficulties in getting the two tiered races into the system.

(13) Subsequently, 13 greyhounds trained by the Respondent raced at the Wanganui meeting on 30 December 2013 and were then scratched from their races at Southland on 31 December 2013. The scratchings from the Southland meeting were notified by Mr McInerney jnr on 30 December.

(14) Three greyhounds – GRUNT RODGERS (Race 1), MISS SELFIES (Race 2) and CHOCDEE ALICE (Race 3) – did not race at Wanganui, but fulfilled their obligations at Southland. Another three greyhounds – CEDRIC BAXTER (Race 2), BOTANY PETE (Race 4) and BOTANY PRANCER (Race 9) – were withdrawn from the Southland meeting for injury.

Position of the Informant

[8] The Informant has adopted a neutral position in this matter and has elected not to file any submissions.

Submissions of the Respondent

[9] It was not fair on the dogs and neither was it physically or logistically possible to have the dogs concerned race at both meetings.

[10] The action of withdrawing dogs from meetings is quite normal, and Clubs (including Southland) have allowed this even after 1.00pm, especially when two or more different Clubs have nominations closing on the same day.

[11] The NZGRA magazine states that withdrawals are to be made by 1.00pm. However, the Respondent said, he was under the impression that he was able to, and had been at times, withdrawing dogs from other Clubs one hour before the draw.

[12] The Respondent is aware that the Clubs do not receive the nominations until later from NZGRA and he believes, with the new tiered racing, this has become a bigger job for Clubs that may require more time.

[13] The Respondent submitted that he had done his best to ensure that all of his nominated greyhounds had a fair chance at getting a start at one or other of the meetings for the benefit of the greyhounds, their owners and their trainer.

[14] The Respondent submitted that it was unfortunate that the Southland Club could not work with him and Wanganui to allow his dogs to be withdrawn prior to both box draws taking place. The consequence was denying 14 other greyhounds a start at the Southland meeting. He had done his best to have the dogs concerned taken out of the Southland fields.

[15] It was not possible for the dogs to race at both meetings and it was never the Respondent’s intention to run them at both.

[16] The Respondent advised all Canterbury trainers which of their reserve dogs would be likely to gain a start at Southland so that they could make arrangement to get their dogs to the meeting. He submitted that he did this to ensure the Clubs and NZGRA would not have depleted fields and, also, in fairness to other owners, trainers and dogs.

[17] The Respondent submitted that he took the only option open to him. The problem could have been avoided had his dogs been pulled out of the Southland fields as requested.

Submissions of Southland Greyhound Racing Club

[18] Written submissions were filed by Bronwyn Eade on behalf of the Southland Greyhound Racing Club. Those submissions are as follows:

SUBMISSION 1:

Rules vs Withdrawals

The first question we must ask is – is the 1.00pm withdrawal time legal under Greyhound Racing Rules? The Southland Club has always maintained that it is not.

The only provision in the current (1 Feb 2014) Rules makes reference to withdrawals after the box draw. Rules 64 – 64.19 – none of these Rules refer to withdrawals prior to field selections.

Rule 43 clearly outlines the procedure of how to nominate and clearly defines (Rule 43.1) a 12 noon closing time with a provision for NZGRA to determine closing times of nominations. In this case and in most cases NZGRA has not altered closing of nomination times and they are advised for all meetings at 12 noon.

Nominations and withdrawals after 12 noon are two different issues by definition.

Rule 46 – 46.13 clearly defines the responsibility that Clubs are obligated to when selecting fields. Again there is no power to withdraw dogs prior to the box draw. Field selection is an involved process and the current practice of withdrawing dogs causes Clubs to redo total fields holding up box draws. It is not simply a matter of removing one dog and replacing with another.

NZGRA Rationale

The SGRC has over several years queried the advertising in the “On Track Magazine” of a 1.00pm withdrawal time (only 1 hour after closing of nominations). This again is completely illegal in terms of the current Rule Book.

This means (and explains clearly the current case placed before the JCA) a trainer rings after 12 noon to find out what dogs he has in at one or both meetings and places them to his advantage by scratching at the other.

The Southland Club has applied the 1.00pm withdrawal time to the second as the NZGRA has placed this upon them.

Rule 46.3 – “All Club selection panel proceedings shall be held in closed committee”.

Once a committee begins any proceedings into field selections, they are not required to inform trainers who has a start or not.

Summary

The SGRC submits there should be no withdrawals prior to box draw and Club Selection Committee are in closed Committee, therefore are not required to release any information regarding selections. In fact the NZGRA’s “On Track Magazine” in the Club Race Day Information page states that “No Conditions on Nominations Accepted”.

SUBMISSION 2:

This submission by Southland Greyhound Racing Club expressed the disappointment of the Club that the Racing Integrity Unit has not charged the Respondent. The Committee does not intend to address that submission. The submission goes on to submit:

Rule 64.3 – This Rule clearly shows that Mr McInerney has breached the Rules and outlines the steps that should have been taken. Mr McInerney nominated the greyhounds so must have been confident he could get them from A to B in time for their races.

In respect of whether withdrawals are legal or not, the SGRC applied and met its obligations that the NZGRA and On Track Magazine outlines, which all other trainers and Wanganui and Southland have followed.

Mr McInerney nominated his dogs for Southland, tried to withdraw them after the 1.00pm withdrawal time then scratched them without valid reason after they had raced at Wanganui.

The Rules

[19] The relevant Rules are:

43.1 All Nominations are to be received by the Association no later than 12 noon on the day of the advertised date for closure of Nominations. The closing time is determined by the Association.

63.7 One or two Reserve Greyhounds may be included for a Race and shall be subject to the same conditions and penalties which apply to the other Greyhounds in the Race.

63.8 Where a Greyhound is a Reserve Greyhound for more than one Race and a withdrawal occurs in more than one Race, the Greyhound shall be placed in the Race with the first withdrawal subject to Rule 63.9 of this Rule.

63.10 For the purposes of Rule 64.2 it shall be deemed a valid reason for the withdrawal of a Greyhound after the Box Draw, if the Greyhound is drawn as a Reserve Greyhound and is usually kennelled at a place outside a radius of 100kms from where the meeting is being held. The Trainer of the Greyhound is responsible for contacting the Club as soon as practicable to confirm the withdrawal and immediately he/she is aware and it is not the intention to fulfil the Greyhound’s engagement. For the purpose of this rule, a Greyhound can only be withdrawn within 48 hours of the start of the Meeting.

64.1 The Nominator of any Greyhound which, in accordance with these Rules, is to be withdrawn from a Race, shall notify the Secretary of the Club for which such Greyhound is to be withdrawn of such withdrawal not later than 7.30am on the day of the meeting.

64.2 If a greyhound is withdrawn without valid reason after the Box Draw, or after qualifying for a Semi Final or Final of a Totalisator Race, the Owner or Trainer of the Greyhound shall be guilty of an Offence.

64.3 When more than one Totalisator Meeting is held on the same day, being drawn into a field at one Totalisator Meeting (whether as a result of competing in qualifying Races or otherwise) shall not constitute a valid reason for withdrawal of the Greyhound from the Race at another Totalisator Meeting. Such Greyhound shall incur a 28 day suspension effective from the day following the meeting.

64.5 A Greyhound which has been included in the Box Draw for a Meeting or after qualifying for a Semi Final or Final at a Totalisator Race and is not presented to Race, shall be Suspended for 28 days unless permission has been granted by the Stewards for the Greyhound to be withdrawn, or the reason for the non-attendance is submitted in writing to the Stewards of the day who may then reconsider the Penalty. An Owner or Trainer of a Greyhound may seek a review, by a Judicial Committee of any decision under this Rule in accordance with Rule 92.20.

Were the Greyhounds withdrawn by the “Nominator”?

[20] The registered Trainer of the greyhounds concerned at the relevant time was Mr J T McInerney. Those greyhounds were nominated for the Southland meeting on 31 December by him. They were withdrawn by Mr J McInerney jnr on 30 December. Mr McInerney jnr is a “Licensed Person” under the Greyhound Racing New Zealand Rules of Racing.

[21] Rule 64.1 (see above) requires that the “Nominator” shall notify the Secretary of the Club of the withdrawal of any greyhound.

[22] There was no evidence before the Committee of a formal Principal-Agent relationship between Mr J T McInerney and Mr J McInerney jnr. However, it is reasonable to infer the existence of an informal agreement in terms of which that the latter, as agent, is authorised to act on behalf of Mr J T McInerney, as principal, to carry out certain acts in relation to the running of the greyhound training business.

[23] It is likely that Mr McInerney jnr has been acting pursuant to that express or implied authority for some time, in particular, in notifying the withdrawal of greyhounds from Mr J T McInerney’s kennels to the Secretary of various Clubs and, further, that the Secretary has accepted that Mr McInerney jnr had the authority of the trainer to do so.

[24] It is a matter of common sense that a Trainer should be able to have an agent, in this case a Licensed Person, carry out such duties for him as the notification of withdrawals.

[25] The ruling of the Committee in respect of this question is that the greyhounds were withdrawn by the “Nominator” as required by Rule 64.1.

Were the Greyhounds withdrawn “without valid reason”?

[26] We take “valid” to have its ordinary dictionary meaning of “legally or officially acceptable”.

[27] The reason for the withdrawal of the fourteen greyhounds from the Southland meeting was, clearly, that those greyhounds, having gained a start and raced at the Wanganui meeting on the previous day, it would not have been possible for them to race at Invercargill the next day.

[28] We believe that Rule 64.3 is relevant to a determination of whether there was a “valid reason” for withdrawal of the greyhounds for the purpose of Rule 64.2 (see those Rules above).

[29] Rule 64.3 refers to “more than one Totalisator Meeting . . . held on the same day”. On a strict literal interpretation of the wording of Rule 64.3, the Rule has no application to the situation on which a ruling is sought. The meetings at Wanganui and Southland were not on the same day but, rather, on consecutive days.

[30] As the Committee understands it, the fields for the two meetings would not have been drawn on the same day, 24 December, under normal circumstances. The circumstances were not “normal”. The fields for the two meetings were being drawn on the same day on this occasion because it was Christmas Eve – six days before the Wanganui meeting and seven days before the Southland meeting. The Committee believes that the situation would not have arisen but for that particular circumstance.

[31] It is appropriate for the Committee to apply Rule 64.3 in the light of its purpose, rather than its strict literal meaning. It is necessary to apply the wording of Rule 64.3 to the factual situation, which would not have been precisely foreseen by the drafters of the Rule.

[32] The Committee prefers to adopt this purposive approach and make the Rule work as the drafters intended, rather than subjecting it to an artificially strict construction which would have impeded the intention of the Rule. The intention of Rule 64.3 is clear.

[33] Taking this purposive approach to Rule 64.3 in the context of the present fact situation, the Committee finds that the fact that Mr McInerney’s greyhounds were drawn into fields at Wanganui on 30 December did not provide “valid reason” to withdraw those greyhounds from their engagements at Southland on 31 December.

[34] The Committee rules accordingly.

[35] The Committee accepts that Mr McInerney jnr acted in good faith in the manner in which he dealt with the Southland Club, in attempting to withdraw the greyhounds concerned before they were drawn into the fields for the 31 December meeting by that Club.

Was the withdrawal of “WAIMAK DAVE” valid?

[36] The relevant Rules are Rules 63.7, 63.8 and 63.10 (see above).

[37] WAIMAK DAVE was the first reserve greyhound in Race 10 at the Southland meeting. According to the transcript of the interview, Mr McInerney was advised by the Club on Sunday, 29 December, that the dog had gained a start in the race. The contents of the transcript is the only evidence that we have in relation to the scratching of WAIMAK DAVE and we have relied on the transcript in determining this issue.

[38] The scratching of GLASSES UP from Race 10 was notified to the Club at 4.50pm on 29 December. We understand that McInerney was then notified. The Southland Club correctly stated that Mr McInerney had the option to withdraw the dog under the “48 hour travelling rule” (Rule 63.10), but submitted that he elected not to do so. WAIMAK DAVE raced at Wanganui on 29 December 2013.

[39] Mr McInerney jnr, on 30 December, notified the withdrawal of WAIMAK DAVE, along with the other withdrawals for the Southland meeting. We have earlier ruled that the withdrawals were made by Mr McInerney jnr as a Licensed person and authorised agent of the Trainer.

[40] In terms of the wording of Rule 63.10, Mr McInerney jnr had a “valid reason” for withdrawing WAIMAK DAVE from its engagement in Race 10. The conditions for valid withdrawal provided in the Rule are, firstly, that the greyhound was usually kennelled outside the 100kms radius and, secondly, that it was withdrawn within 48 hours of the start of the meeting.

[41] The Committee understands that the withdrawal was not made until the day following Mr McInerney being notified that WAIMAK DAVE had gained a start. When that notification was made (4.50pm on 29 December) WAIMAK DAVE would have been in Wanganui for its race on 30 December or, at the very least, the decision would have been made by its trainer that it would be starting at the Wanganui meeting and not at Southland. That decision (to take WAIMAK DAVE to Wanganui) was reasonable, given that WAIMAK DAVE was a reserve greyhound in Race 10 at the Southland meeting.

[42] In those circumstances, either the Mr J T McInerney or Mr J McInerney jnr ought properly to have notified the withdrawal of WAIMAK DAVE at the same time as he received notification that the dog had gained a start in the Southland race. The rule states that:

The Trainer of the greyhound is responsible for contacting the Club as soon as practicable to confirm the withdrawal and immediately he/she is aware that it is not the intention to fulfil the Greyhound’s engagement.

[43] Clearly, this requirement was not complied with, for whatever reason. However, this does not detract from the validity of the withdrawal, in the Committee’s view.

[44] The conditions for valid withdrawal of WAIMAK DAVE were met (paragraph 40 above).

[45] The Committee rules that Mr McInerney had a valid reason for withdrawing WAIMAK DAVE from Race 10 at the Southland meeting on 31 December 2013.

R G McKenzie             S C Ching

Chair                          Committee Member

sumissionsforpenalty:

reasonsforpenalty:

penalty:

hearing_type: Non-race day

Rules:

Informant:

JockeysandTrainer:

Otherperson:

PersonPresent:

Respondent:

StipendSteward:

raceid:

race_expapproval:

racecancelled:

race_noreport:

race_emailed1:

race_emailed2:

race_title:

submittochair:

race_expappcomment:

race_km:

race_otherexp:

race_chair:

race_pm1:

race_pm2:

meetid:

meet_expapproval:

meet_noreport:

waitingforpublication:

meet_emailed1:

meet_emailed2:

meetdate: no date provided

meet_title:

meet_expappcomment:

meet_km:

meet_otherexp:

tracklocation:

meet_racingtype:

meet_chair:

meet_pm1:

meet_pm2:

name: