Non Raceday Inquiry RIU v G Vile – Written Decision on Costs dated 16 February 2017 – Chairman, Mr T Utikere
ID: JCA12195
Decision:
BEFORE A NON RACEDAY JUDICIAL COMMITTEE
OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
IN THE MATTER OF The New Zealand Rules of Racing
BETWEEN THE RACING INTEGRITY UNIT (RIU)
Informant
AND GARY VILE
Class A Licensed Trainer
Respondent
Judicial Committee: Mr Tangi Utikere (Chairman)
Mr Noel McCutcheon (Member)
Counsel: Mr Steve Symon (Counsel for the RIU)
Mr John Tannahill (Counsel for the Respondent)
WRITTEN DECISION OF NON RACEDAY JUDICIAL COMMITTEE ON COSTS
Dated 16 February 2017
Introduction
[1] The Respondent, Mr Gary Vile faced a charge of misconduct, an alleged breach of Rule 340 of the New Zealand Thoroughbred Rules of Racing. On 31 January, the Judicial Committee issued a detailed Reserved Decision dismissing the charge.
[2] At para [124] of its decision, the committee noted that: "The tentative position of the committee is to have costs lie where they fall. If either party wishes to make written submissions on the issue of costs, such submissions are to be filed with the Executive Officer of the JCA by 4.00pm three (3) working days after the date of this decision; that is 4.00pm on Friday 3 February 2017."
[3] On 3 February, Mr Tannahill filed a Memorandum on Costs on behalf of the Respondent.
[4] As a result of this, Mr Symon was directed to file written Submissions on Costs, which were received on 9 February.
[5] The Respondent was subsequently granted leave to file a Memorandum in Reply within a very tight timeframe, which was received on 13 February.
[6] The Reserved Decision of 31 January indicated our tentative view for costs to lie where they fall. That tentative view was the committee's default position in the absence of being aware of either parties position, or submissions, on costs. It was not to be seen as a predetermined approach to the matter. Nor does it, in our view, limit our approach to the question of costs; and we now proceed to consider the issue in light of the written submissions that have been received.
The Respondent’s Position
[7] Mr Tannahill accepts that in the normal and usual situation, costs should lie where they fall. However, in this case he believed there to be matters which the committee were unaware of, which would lead to a favourable award of costs for the Respondent.
[8] He cites the case of RIU v Morton as a leading authority on the question of costs in racing cases. In that case, Counsel for Mr Morton submitted that the committee should be guided by the High Court Rules on the question of costs. Mr Tannahill submitted that in the current case, we should be guided by the District Court Rules 2014, and in particular Rule 14.2.
[9] His submissions indicate that subsequent to the charge of misconduct being laid against Mr Vile, attempts were made by Mr Tannahill to resolve the matter in discussions with Mr Irving. Once Mr Symon was instructed, he believed his suggestions around how a contested hearing could be avoided were rejected and that Mr Symon suggested Mr Vile plead guilty to save his costs. Some emails that were indicative of the exchange were attached to his written submissions.
[10] Mr Tannahill noted that substantial preparation for the hearing, which lasted a full day, had been undertaken. He believed that Mr Vile would incur legal costs in excess of $4,000, and while Mr Vile could not expect to recover the full amount of his costs, Mr Tannahill submitted that a reasonable and modest contribution of $2,000 was appropriate.
[11] In conclusion he referred the committee to the Letter of Authority issued by the General Manager of the RIU, Mr Mike Godber. He noted that this letter was produced as an exhibit during the hearing and that it was dated 5 December 2016, whereas the interview with Mr Vile took place in Palmerston North on 6 December 2016. Mr Tannahill submitted that this clearly demonstrated a pre-judging of the incident without a full and proper investigation.
The Informant’s Position
[12] Mr Symon identified that Rule 920(3) of the Rules of Racing provides that the JCA can order costs as it sees fit.
[13] With reference to RIU v Morton, Mr Symon submitted that case involved very different circumstances. He believed the sole issue for the current case was whether the JCA could be satisfied that threatening and abusive language was used towards Mr Jack. Whereas in Morton, the JCA ultimately concluded that the prosecution was misguided.
[14] On the issue of attempts to resolve the prosecution by counsel, Mr Symon said that it was unusual for the Respondent to rely on “without prejudice” discussions, where discussions centred around the penalty the Respondent would receive if he took responsibility for the offending.
[15] He also provided the committee with a broader context of the emails that were exchanged between both parties which confirmed the RIU’s position that it: would not be withdrawing the charge; that it had a willingness to discuss an informal restorative justice process upon a guilty plea being entered; and that an apology and remorse being shown by Mr Vile would mitigate against an appropriate sentence.
[16] Mr Symon submitted that it would be wrong to penalise the RIU for bringing a case based on the credibility of a member of the public. He referred to the Solicitor-General’s Prosecution Guidelines in emphasising that the credibility of evidence was not a “mathematical science, but rather a matter of judgment for the prosecutor” . With reference to this case, he believed that there were strong indications that the complainant’s evidence was entirely credible, especially given the evidence of his demeanour subsequent to the alleged incident.
[17] He submitted that at the time of considering whether the prosecution should be brought and continued, the RIU was entirely right to rely on the complainant’s evidence as a credible account. In cases where the prosecution case depends heavily on a witness’s evidence being credible, he believed that a costs award would undoubtedly have an undesirable ‘chilling’ effect for similar prosecutions to be brought. He referred the committee to consider the comments regarding the policy considerations of costs applications in criminal cases in R v Huang .
[18] In response to the allegation that the RIU had pre-judged the matter because the Letter of Authority had pre-dated the interview with Mr Vile, Mr Symon submitted that the document had been disclosed well before the hearing, and that the allegation had not been put to Mr Irving for comment.
[19] He believed that Mr Irving had obtained authority to charge the Respondent based on the available evidence on 5 December 2016; but that the decision to ultimately charge him was not made until after Mr Vile had been spoken to and the RIU had the opportunity to consider what he had said.
[20] Mr Symon believed that it was appropriate that the allegation against Mr Vile was properly tested at a hearing, and that the JCA had the opportunity to consider the merits of the evidence. He believed that the JCA should conclude that costs lie where they fall.
The Respondent’s Reply
[21] Mr Tannahill confirmed that at no time did Mr Vile give any indication that he would plead guilty or take responsibility for the alleged offending. He stated that Mr Vile maintained his innocence, which was also consistent with his recorded interview with Mr Irving.
[22] He also confirmed that the allegation of pre-determination was obvious from the letter that was produced by the RIU. He also believed that it was not a prerequisite for this to be put to Mr Irving during the hearing, and that it was entirely relevant to the question of costs and also the conduct of the informant and the failure of Mr Irving to put the allegations of Mr Vile to Mr Jack.
Analysis
[23] The committee has considered the written submissions that have been placed before it on the question of costs.
[24] Rule 920(3) provides:
The Judicial Committee may order that all or any of the costs and expenses of:
(a) any party to the hearing;
(b) any other person granted permission to be heard at the hearing by direction of the Judicial Committee;
(c) NZTR and/or any employee or officer thereof;
(d) the Judicial Control Authority and the Judicial Committee be paid by such person or body as it thinks fit.
[25] Accordingly, it is clear that Rule 920(3) of the Rules of Racing allows for the JCA to order costs, where it considers it appropriate to do so. We are also aware of the Practice Note on Costs and Filing Fees , issued by the JCA, and have given it consideration in approaching the issue of costs.
[26] The committee is familiar with the case of RIU v Morton. At Paragraph 6.2 of that Costs Decision the Chairman, Mr McKechnie, deals with the comparison of proceedings under the Rules of Racing and the High Court Rules, noting that the “conduct of litigation in the High Court generally involves extensive preparation” .
[27] While Mr Tannahill suggests that the District Court Rules 2014 are more appropriate in this case, in any event we note that specifically Rules 14.1(1)(a) and 14.2(a) of those Rules are consistent with the JCA’s Practice Note on Costs and Filing Fees.
[28] Both parties have made comments in their submissions regarding the nature of pre-hearing communications that took place in an attempt to either avoid a full-day hearing or obtain a guilty plea. There are obviously issues around the context of these discussions, and without the full extent of the email threads being placed before the committee we attach little weight to them.
[29] Mr Symon relies on the belief that it was entirely appropriate for the prosecution to have pursued the misconduct charge based on the credibility of the complainant. Mr Tannahill disagrees. In their submissions, the RIU have asked us to consider the policy considerations of costs applications in R v Huang. The committee has sourced a copy of the Huang decision and has considered the Judgment of Heath J in some detail.
[30] Mr Symon identifies the relevant consideration at para [35] of the Huang decision. Para [35] has two competing policy considerations that relate to the factors listed in s 5(2) of the Costs in Criminal Cases Act 1967. In order to give adequate consideration to what is contained at para [35], and noting this case is in the criminal rather than racing jurisdiction, it is important for us to indicate that we have looked at s 5 of that Act, as it is specifically referred to by Heath J at para [17] of the decision that Mr Symon refers us to.
[31] Mr Symon seems to base his submission on the first policy consideration in para [35] of Huang; that is:
“a) that a significant award of costs against the prosecution could have the unintended consequence of acting as a disincentive for similar prosecutions to be brought in the future.”
[32] Also of relevance is the competing policy consideration that immediately follows:
“b) ...the possibility of an adverse costs order being made is likely to operate as an incentive for prosecuting agencies to keep standards of investigation and prosecution at an appropriately high level.”
[33] With reference to the judgment of Heath J, when we apply those considerations in the current context, the s 5(2) issues that assume prominence, which may form part of the committee’s considerations include:
a) Did the RIU on this occasion act in good faith in bringing and continuing the prosecution against Mr Vile? (s 5(2)(a))
b) Did the RIU have sufficient evidence, at the commencement of the proceeding, to support a finding of guilt in the absence of other evidence at the hearing? (s 5(2)(b))
c) Did the RIU take proper steps to investigate any matter coming into its hands which suggested that the Respondent might not be guilty? (s 5(2)(c))
d) Was the investigation into the offence conducted by the RIU in a reasonable and proper manner? (s 5(2)(d))
e) Was the charge dismissed because Mr Vile established (either by the evidence of witnesses called by him, or by the cross-examination of witnesses for the RIU) that he was not guilty? (s 5(2)(f))
[34] All of these factors are pertinent questions for the committee to consider in the context of this case, and specifically when the relevance of Huang has been suggested by Mr Symon.
[35] While the charge of misconduct against Mr Vile was dismissed, costs are not awarded against the prosecution simply because the prosecution has failed. If a costs award was to be made against the RIU, we must, amongst other things, be satisfied that the charge was misconceived or should not have been brought for some other reason.
[36] It is clear that the authorisation to charge Mr Vile with a breach of Rule 340 was given by the General Manager of the RIU, Mr Mike Godber, on 5 December 2016. The committee has looked very carefully at the Letter of Authorisation in response to the concerns expressed by Mr Tannahill.
[37] The letter states: “I have considered your report regarding Mr Gary VILE a licensed Class A Trainer misconducting himself at the Wellington Racing Club meeting at Trentham racecourse on Saturday 3 December 2016” .
[38] It is clear to the committee that Mr Godber exercised the delegation under the provision of Rule 903 (2)(d) on 5 December 2016. It is also clear to the committee that he only exercised this delegation after receiving, and considering, a report from Mr Irving that related to the alleged incident of misconduct.
[39] This implies that he considered a report before deciding to exercise his delegation to authorise the charge. It is abundantly clear that at the time that the report was considered and the delegation was exercised, Mr Vile had not had the opportunity to express his views on the alleged charge, even though he had previously indicated to the authorities that he had a different version of events.
[40] Mr Symon suggests that these matters should have been put to Mr Irving during the hearing. The reality is the Letter of Authorisation was formally entered into evidence at the request of the RIU, and was duly labelled as ‘Exhibit 6’. The Letter was also authored by Mr Godber, so it would be he, rather than Mr Irving who would be responding to questions relating to the basis on which the decision to charge was authorised.
[41] It seems that when the interview with Mr Vile on 6 December took place to obtain his version of events, the delegation to charge Mr Vile with a charge of misconduct had already been exercised. Mr Symon suggests that what was important was the date on which the charge was actually laid. We reject that submission, as the charge can only be laid once the delegation has been exercised, and on this occasion it is clear that this was before the interview with Mr Vile took place. To suggest that such an approach was far from ideal would be an understatement.
[42] In this collective circumstance, there are issues of natural justice, alongside the considerations in para [33] above that we must turn our minds to, which leads us to exercise our discretion to award costs against the RIU.
[43] The Practice Note on Costs and Filing Fees indicates that where costs are awarded to a party, a good rule of thumb is an award of 60% of the actual costs reasonably incurred by that party. Mr Tannahill submits that a figure of $2,000 would be appropriate, which we consider to be a very modest amount. That figure will be so ordered.
[44] The JCA has also been put to considerable effort and some expense in dealing with this matter. As such, we consider it appropriate that costs in favour of the JCA are also ordered. The committee is in receipt of a Schedule of JCA costs from the Executive Officer, and the figure to be paid by the RIU will only be a contribution towards the total costs incurred. That figure will be set at $1,500.
Costs Orders
[45] The RIU is directed to pay $2,000 in costs to the Respondent. It is further ordered that the RIU are to pay costs to the JCA in the amount of $1,500.
Mr Tangi Utikere
Judicial Committee Chairman
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 27/02/2017
Publish Date: 27/02/2017
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decisiondate: 27/02/2017
hearing_title: Non Raceday Inquiry RIU v G Vile - Written Decision on Costs dated 16 February 2017 - Chairman, Mr T Utikere
charge:
facts:
appealdecision: NO LINKED APPEAL DECISION
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Decision:
BEFORE A NON RACEDAY JUDICIAL COMMITTEE
OF THE JUDICIAL CONTROL AUTHORITY
UNDER THE RACING ACT 2003
IN THE MATTER OF The New Zealand Rules of Racing
BETWEEN THE RACING INTEGRITY UNIT (RIU)
Informant
AND GARY VILE
Class A Licensed Trainer
Respondent
Judicial Committee: Mr Tangi Utikere (Chairman)
Mr Noel McCutcheon (Member)
Counsel: Mr Steve Symon (Counsel for the RIU)
Mr John Tannahill (Counsel for the Respondent)
WRITTEN DECISION OF NON RACEDAY JUDICIAL COMMITTEE ON COSTS
Dated 16 February 2017
Introduction
[1] The Respondent, Mr Gary Vile faced a charge of misconduct, an alleged breach of Rule 340 of the New Zealand Thoroughbred Rules of Racing. On 31 January, the Judicial Committee issued a detailed Reserved Decision dismissing the charge.
[2] At para [124] of its decision, the committee noted that: "The tentative position of the committee is to have costs lie where they fall. If either party wishes to make written submissions on the issue of costs, such submissions are to be filed with the Executive Officer of the JCA by 4.00pm three (3) working days after the date of this decision; that is 4.00pm on Friday 3 February 2017."
[3] On 3 February, Mr Tannahill filed a Memorandum on Costs on behalf of the Respondent.
[4] As a result of this, Mr Symon was directed to file written Submissions on Costs, which were received on 9 February.
[5] The Respondent was subsequently granted leave to file a Memorandum in Reply within a very tight timeframe, which was received on 13 February.
[6] The Reserved Decision of 31 January indicated our tentative view for costs to lie where they fall. That tentative view was the committee's default position in the absence of being aware of either parties position, or submissions, on costs. It was not to be seen as a predetermined approach to the matter. Nor does it, in our view, limit our approach to the question of costs; and we now proceed to consider the issue in light of the written submissions that have been received.
The Respondent’s Position
[7] Mr Tannahill accepts that in the normal and usual situation, costs should lie where they fall. However, in this case he believed there to be matters which the committee were unaware of, which would lead to a favourable award of costs for the Respondent.
[8] He cites the case of RIU v Morton as a leading authority on the question of costs in racing cases. In that case, Counsel for Mr Morton submitted that the committee should be guided by the High Court Rules on the question of costs. Mr Tannahill submitted that in the current case, we should be guided by the District Court Rules 2014, and in particular Rule 14.2.
[9] His submissions indicate that subsequent to the charge of misconduct being laid against Mr Vile, attempts were made by Mr Tannahill to resolve the matter in discussions with Mr Irving. Once Mr Symon was instructed, he believed his suggestions around how a contested hearing could be avoided were rejected and that Mr Symon suggested Mr Vile plead guilty to save his costs. Some emails that were indicative of the exchange were attached to his written submissions.
[10] Mr Tannahill noted that substantial preparation for the hearing, which lasted a full day, had been undertaken. He believed that Mr Vile would incur legal costs in excess of $4,000, and while Mr Vile could not expect to recover the full amount of his costs, Mr Tannahill submitted that a reasonable and modest contribution of $2,000 was appropriate.
[11] In conclusion he referred the committee to the Letter of Authority issued by the General Manager of the RIU, Mr Mike Godber. He noted that this letter was produced as an exhibit during the hearing and that it was dated 5 December 2016, whereas the interview with Mr Vile took place in Palmerston North on 6 December 2016. Mr Tannahill submitted that this clearly demonstrated a pre-judging of the incident without a full and proper investigation.
The Informant’s Position
[12] Mr Symon identified that Rule 920(3) of the Rules of Racing provides that the JCA can order costs as it sees fit.
[13] With reference to RIU v Morton, Mr Symon submitted that case involved very different circumstances. He believed the sole issue for the current case was whether the JCA could be satisfied that threatening and abusive language was used towards Mr Jack. Whereas in Morton, the JCA ultimately concluded that the prosecution was misguided.
[14] On the issue of attempts to resolve the prosecution by counsel, Mr Symon said that it was unusual for the Respondent to rely on “without prejudice” discussions, where discussions centred around the penalty the Respondent would receive if he took responsibility for the offending.
[15] He also provided the committee with a broader context of the emails that were exchanged between both parties which confirmed the RIU’s position that it: would not be withdrawing the charge; that it had a willingness to discuss an informal restorative justice process upon a guilty plea being entered; and that an apology and remorse being shown by Mr Vile would mitigate against an appropriate sentence.
[16] Mr Symon submitted that it would be wrong to penalise the RIU for bringing a case based on the credibility of a member of the public. He referred to the Solicitor-General’s Prosecution Guidelines in emphasising that the credibility of evidence was not a “mathematical science, but rather a matter of judgment for the prosecutor” . With reference to this case, he believed that there were strong indications that the complainant’s evidence was entirely credible, especially given the evidence of his demeanour subsequent to the alleged incident.
[17] He submitted that at the time of considering whether the prosecution should be brought and continued, the RIU was entirely right to rely on the complainant’s evidence as a credible account. In cases where the prosecution case depends heavily on a witness’s evidence being credible, he believed that a costs award would undoubtedly have an undesirable ‘chilling’ effect for similar prosecutions to be brought. He referred the committee to consider the comments regarding the policy considerations of costs applications in criminal cases in R v Huang .
[18] In response to the allegation that the RIU had pre-judged the matter because the Letter of Authority had pre-dated the interview with Mr Vile, Mr Symon submitted that the document had been disclosed well before the hearing, and that the allegation had not been put to Mr Irving for comment.
[19] He believed that Mr Irving had obtained authority to charge the Respondent based on the available evidence on 5 December 2016; but that the decision to ultimately charge him was not made until after Mr Vile had been spoken to and the RIU had the opportunity to consider what he had said.
[20] Mr Symon believed that it was appropriate that the allegation against Mr Vile was properly tested at a hearing, and that the JCA had the opportunity to consider the merits of the evidence. He believed that the JCA should conclude that costs lie where they fall.
The Respondent’s Reply
[21] Mr Tannahill confirmed that at no time did Mr Vile give any indication that he would plead guilty or take responsibility for the alleged offending. He stated that Mr Vile maintained his innocence, which was also consistent with his recorded interview with Mr Irving.
[22] He also confirmed that the allegation of pre-determination was obvious from the letter that was produced by the RIU. He also believed that it was not a prerequisite for this to be put to Mr Irving during the hearing, and that it was entirely relevant to the question of costs and also the conduct of the informant and the failure of Mr Irving to put the allegations of Mr Vile to Mr Jack.
Analysis
[23] The committee has considered the written submissions that have been placed before it on the question of costs.
[24] Rule 920(3) provides:
The Judicial Committee may order that all or any of the costs and expenses of:
(a) any party to the hearing;
(b) any other person granted permission to be heard at the hearing by direction of the Judicial Committee;
(c) NZTR and/or any employee or officer thereof;
(d) the Judicial Control Authority and the Judicial Committee be paid by such person or body as it thinks fit.
[25] Accordingly, it is clear that Rule 920(3) of the Rules of Racing allows for the JCA to order costs, where it considers it appropriate to do so. We are also aware of the Practice Note on Costs and Filing Fees , issued by the JCA, and have given it consideration in approaching the issue of costs.
[26] The committee is familiar with the case of RIU v Morton. At Paragraph 6.2 of that Costs Decision the Chairman, Mr McKechnie, deals with the comparison of proceedings under the Rules of Racing and the High Court Rules, noting that the “conduct of litigation in the High Court generally involves extensive preparation” .
[27] While Mr Tannahill suggests that the District Court Rules 2014 are more appropriate in this case, in any event we note that specifically Rules 14.1(1)(a) and 14.2(a) of those Rules are consistent with the JCA’s Practice Note on Costs and Filing Fees.
[28] Both parties have made comments in their submissions regarding the nature of pre-hearing communications that took place in an attempt to either avoid a full-day hearing or obtain a guilty plea. There are obviously issues around the context of these discussions, and without the full extent of the email threads being placed before the committee we attach little weight to them.
[29] Mr Symon relies on the belief that it was entirely appropriate for the prosecution to have pursued the misconduct charge based on the credibility of the complainant. Mr Tannahill disagrees. In their submissions, the RIU have asked us to consider the policy considerations of costs applications in R v Huang. The committee has sourced a copy of the Huang decision and has considered the Judgment of Heath J in some detail.
[30] Mr Symon identifies the relevant consideration at para [35] of the Huang decision. Para [35] has two competing policy considerations that relate to the factors listed in s 5(2) of the Costs in Criminal Cases Act 1967. In order to give adequate consideration to what is contained at para [35], and noting this case is in the criminal rather than racing jurisdiction, it is important for us to indicate that we have looked at s 5 of that Act, as it is specifically referred to by Heath J at para [17] of the decision that Mr Symon refers us to.
[31] Mr Symon seems to base his submission on the first policy consideration in para [35] of Huang; that is:
“a) that a significant award of costs against the prosecution could have the unintended consequence of acting as a disincentive for similar prosecutions to be brought in the future.”
[32] Also of relevance is the competing policy consideration that immediately follows:
“b) ...the possibility of an adverse costs order being made is likely to operate as an incentive for prosecuting agencies to keep standards of investigation and prosecution at an appropriately high level.”
[33] With reference to the judgment of Heath J, when we apply those considerations in the current context, the s 5(2) issues that assume prominence, which may form part of the committee’s considerations include:
a) Did the RIU on this occasion act in good faith in bringing and continuing the prosecution against Mr Vile? (s 5(2)(a))
b) Did the RIU have sufficient evidence, at the commencement of the proceeding, to support a finding of guilt in the absence of other evidence at the hearing? (s 5(2)(b))
c) Did the RIU take proper steps to investigate any matter coming into its hands which suggested that the Respondent might not be guilty? (s 5(2)(c))
d) Was the investigation into the offence conducted by the RIU in a reasonable and proper manner? (s 5(2)(d))
e) Was the charge dismissed because Mr Vile established (either by the evidence of witnesses called by him, or by the cross-examination of witnesses for the RIU) that he was not guilty? (s 5(2)(f))
[34] All of these factors are pertinent questions for the committee to consider in the context of this case, and specifically when the relevance of Huang has been suggested by Mr Symon.
[35] While the charge of misconduct against Mr Vile was dismissed, costs are not awarded against the prosecution simply because the prosecution has failed. If a costs award was to be made against the RIU, we must, amongst other things, be satisfied that the charge was misconceived or should not have been brought for some other reason.
[36] It is clear that the authorisation to charge Mr Vile with a breach of Rule 340 was given by the General Manager of the RIU, Mr Mike Godber, on 5 December 2016. The committee has looked very carefully at the Letter of Authorisation in response to the concerns expressed by Mr Tannahill.
[37] The letter states: “I have considered your report regarding Mr Gary VILE a licensed Class A Trainer misconducting himself at the Wellington Racing Club meeting at Trentham racecourse on Saturday 3 December 2016” .
[38] It is clear to the committee that Mr Godber exercised the delegation under the provision of Rule 903 (2)(d) on 5 December 2016. It is also clear to the committee that he only exercised this delegation after receiving, and considering, a report from Mr Irving that related to the alleged incident of misconduct.
[39] This implies that he considered a report before deciding to exercise his delegation to authorise the charge. It is abundantly clear that at the time that the report was considered and the delegation was exercised, Mr Vile had not had the opportunity to express his views on the alleged charge, even though he had previously indicated to the authorities that he had a different version of events.
[40] Mr Symon suggests that these matters should have been put to Mr Irving during the hearing. The reality is the Letter of Authorisation was formally entered into evidence at the request of the RIU, and was duly labelled as ‘Exhibit 6’. The Letter was also authored by Mr Godber, so it would be he, rather than Mr Irving who would be responding to questions relating to the basis on which the decision to charge was authorised.
[41] It seems that when the interview with Mr Vile on 6 December took place to obtain his version of events, the delegation to charge Mr Vile with a charge of misconduct had already been exercised. Mr Symon suggests that what was important was the date on which the charge was actually laid. We reject that submission, as the charge can only be laid once the delegation has been exercised, and on this occasion it is clear that this was before the interview with Mr Vile took place. To suggest that such an approach was far from ideal would be an understatement.
[42] In this collective circumstance, there are issues of natural justice, alongside the considerations in para [33] above that we must turn our minds to, which leads us to exercise our discretion to award costs against the RIU.
[43] The Practice Note on Costs and Filing Fees indicates that where costs are awarded to a party, a good rule of thumb is an award of 60% of the actual costs reasonably incurred by that party. Mr Tannahill submits that a figure of $2,000 would be appropriate, which we consider to be a very modest amount. That figure will be so ordered.
[44] The JCA has also been put to considerable effort and some expense in dealing with this matter. As such, we consider it appropriate that costs in favour of the JCA are also ordered. The committee is in receipt of a Schedule of JCA costs from the Executive Officer, and the figure to be paid by the RIU will only be a contribution towards the total costs incurred. That figure will be set at $1,500.
Costs Orders
[45] The RIU is directed to pay $2,000 in costs to the Respondent. It is further ordered that the RIU are to pay costs to the JCA in the amount of $1,500.
Mr Tangi Utikere
Judicial Committee Chairman
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