Non Raceday Inquiry – RIU v P Yesberg 24 December 2013 – Reserved Decision on Costs dated 28 February 2014
ID: JCA17135
Decision:
BEFORE A JUDICIAL COMMITTEE
HELD AT CHRISTCHURCH
IN THE MATTER of Information No. A1153
BETWEEN BARRY ALEXANDER KITTO, Racecourse Investigator for the Racing Integrity Unit
Informant
AND PAUL YESBERG of Kaiapoi, Trials Driver/Advanced Amateur Driver
Respondent
Judicial Committee: R G McKenzie, Chairman - S C Ching, Committee Member
Counsel for the Informant: Mr C Lange
Counsel for the Respondent: Mr A Davis
Date of Decision: 28 February 2014
RESERVED DECISION OF JUDICIAL COMMITTEE ON COSTS
[1] In its decision relating to penalty dated 24 December 2013, the Committee reserved the matter of costs and required both parties to file submissions relating to costs with the Judicial Control Authority by 17 January 2014.
[2] Submissions have now been received on behalf of the Informant and the Respondent.
[3] Mr Lange, of Counsel for the Informant, has sought an award of costs and submitted that the costs of the Informant, comprising “legal costs”, are “summarised” at $3,542.75. He also referred to “judicial fees” payable to the Judicial Control Authority of $439.84.
[4] In his submissions, Mr Davis for the Respondent has produced a Summary of Facts which was to have been presented to the Judicial Committee at the hearing of the charge against Mr Yesberg on 9 October 2013. That hearing did not proceed on that date and the charge was subsequently heard “on the papers” without any formal hearing being required.
[5] Mr Davis referred to paragraph 23 of that Summary of Facts where it was stated that the RIU “makes no application for costs but there will be costs for the JCA”.
[6] Mr Davis has submitted that, on the basis of that paragraph, this Committee is “estopped” from making any order for costs in favour of the Informant in this case. He submits that “issue estoppel” applies.
[7] The Committee is not satisfied that issue estoppel applies, as no determination on the issue of costs has been made by the Committee.
[8] The charge against Mr Yesberg had been set down for a hearing on 19 November 2013. The hearing was adjourned on the day of hearing when Mr Yesberg raised an objection to the composition of the Judicial Committee appointed to hear the charge.
[9] The charge was subsequently dealt with by a new Committee, with the agreement of both parties, “on the papers”.
[10] In its decision dated 24 December 2013, the Committee reserved the issue of costs and required the parties to file written submissions relating to the matter of costs. Detailed written submissions have now been received from both parties.
[11] The Informant submits that the Summary of Facts referred to in paragraph [4] above was, effectively, superseded by an amended Summary of Facts dated 14 November 2013 in which the reference to no costs being sought was deleted and the submission on penalty concluded:
The Informant applies for costs. Whilst the various judicial decisions refer to the unfettered discretion awards up to 65% had been upheld on appeal (RIU v Justice, 14 March 2013).
[12] Rule 1114 (3) of the New Zealand Rules of Harness Racing provides as follows:
On the determination of an information or its withdrawal or dismissal the Judicial Committee may order all or any of the costs and/or expenses of any party to the proceedings of and incidental to the hearing of the information be paid by such person or body as it thinks fit and may fix an amount by way of such costs and expenses.
[13] In deciding whether it is appropriate, in this case, to make an order for costs against the Respondent the Committee takes, as a starting point, the position of the RIU in Mr Kitto’s Summary of Facts prepared for the original hearing set down for 9 October 2013. Clause 23 provided:
We make no application for costs for the RIU but there will be costs for the JCA.
[14] Subsequent to that, one of two original charges against the Respondent was withdrawn. The hearing was then set down for hearing on 19 November 2013 but did not proceed on that date. Subsequent to that, the charge was heard “on the papers”.
[15] Counsel for the Respondent, in his submissions referred to the following factors:
“(i) An early guilty plea once the RIU had withdrawn the second charge;
(ii) The cooperation by the Respondent in terms of the concession that no formal hearing involving evidence needed to take place;
(iii) The matter was dealt with on the papers rather than at a viva voce hearing; and
(iv) The hearing was conducted on a non-raceday and the Committee were [sic] invited to conduct the same without face to face contact thus reducing any inconvenience to the Committee members.”
[16] There is merit in each of those points and we also attach considerable weight to the fact that the RIU had originally represented that no application for costs would be made. It is not unreasonable to infer that the Respondent had an expectation or understanding that no costs would be sought by the Informant.
[17] Weighing up all factors, the Committee makes no order for costs in favour of the RIU.
[18] The Respondent is ordered to pay costs in the sum of $350 to the Judicial Control Authority.
R G McKENZIE S C CHING
Chairman Committee Member
Appeal Decision: NO LINKED APPEAL DECISION
Decision Date: 10/03/2014
Publish Date: 10/03/2014
JCA Decision Fields (raw)
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hearing_title: Non Raceday Inquiry - RIU v P Yesberg 24 December 2013 - Reserved Decision on Costs dated 28 February 2014
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Decision:
BEFORE A JUDICIAL COMMITTEE
HELD AT CHRISTCHURCH
IN THE MATTER of Information No. A1153
BETWEEN BARRY ALEXANDER KITTO, Racecourse Investigator for the Racing Integrity Unit
Informant
AND PAUL YESBERG of Kaiapoi, Trials Driver/Advanced Amateur Driver
Respondent
Judicial Committee: R G McKenzie, Chairman - S C Ching, Committee Member
Counsel for the Informant: Mr C Lange
Counsel for the Respondent: Mr A Davis
Date of Decision: 28 February 2014
RESERVED DECISION OF JUDICIAL COMMITTEE ON COSTS
[1] In its decision relating to penalty dated 24 December 2013, the Committee reserved the matter of costs and required both parties to file submissions relating to costs with the Judicial Control Authority by 17 January 2014.
[2] Submissions have now been received on behalf of the Informant and the Respondent.
[3] Mr Lange, of Counsel for the Informant, has sought an award of costs and submitted that the costs of the Informant, comprising “legal costs”, are “summarised” at $3,542.75. He also referred to “judicial fees” payable to the Judicial Control Authority of $439.84.
[4] In his submissions, Mr Davis for the Respondent has produced a Summary of Facts which was to have been presented to the Judicial Committee at the hearing of the charge against Mr Yesberg on 9 October 2013. That hearing did not proceed on that date and the charge was subsequently heard “on the papers” without any formal hearing being required.
[5] Mr Davis referred to paragraph 23 of that Summary of Facts where it was stated that the RIU “makes no application for costs but there will be costs for the JCA”.
[6] Mr Davis has submitted that, on the basis of that paragraph, this Committee is “estopped” from making any order for costs in favour of the Informant in this case. He submits that “issue estoppel” applies.
[7] The Committee is not satisfied that issue estoppel applies, as no determination on the issue of costs has been made by the Committee.
[8] The charge against Mr Yesberg had been set down for a hearing on 19 November 2013. The hearing was adjourned on the day of hearing when Mr Yesberg raised an objection to the composition of the Judicial Committee appointed to hear the charge.
[9] The charge was subsequently dealt with by a new Committee, with the agreement of both parties, “on the papers”.
[10] In its decision dated 24 December 2013, the Committee reserved the issue of costs and required the parties to file written submissions relating to the matter of costs. Detailed written submissions have now been received from both parties.
[11] The Informant submits that the Summary of Facts referred to in paragraph [4] above was, effectively, superseded by an amended Summary of Facts dated 14 November 2013 in which the reference to no costs being sought was deleted and the submission on penalty concluded:
The Informant applies for costs. Whilst the various judicial decisions refer to the unfettered discretion awards up to 65% had been upheld on appeal (RIU v Justice, 14 March 2013).
[12] Rule 1114 (3) of the New Zealand Rules of Harness Racing provides as follows:
On the determination of an information or its withdrawal or dismissal the Judicial Committee may order all or any of the costs and/or expenses of any party to the proceedings of and incidental to the hearing of the information be paid by such person or body as it thinks fit and may fix an amount by way of such costs and expenses.
[13] In deciding whether it is appropriate, in this case, to make an order for costs against the Respondent the Committee takes, as a starting point, the position of the RIU in Mr Kitto’s Summary of Facts prepared for the original hearing set down for 9 October 2013. Clause 23 provided:
We make no application for costs for the RIU but there will be costs for the JCA.
[14] Subsequent to that, one of two original charges against the Respondent was withdrawn. The hearing was then set down for hearing on 19 November 2013 but did not proceed on that date. Subsequent to that, the charge was heard “on the papers”.
[15] Counsel for the Respondent, in his submissions referred to the following factors:
“(i) An early guilty plea once the RIU had withdrawn the second charge;
(ii) The cooperation by the Respondent in terms of the concession that no formal hearing involving evidence needed to take place;
(iii) The matter was dealt with on the papers rather than at a viva voce hearing; and
(iv) The hearing was conducted on a non-raceday and the Committee were [sic] invited to conduct the same without face to face contact thus reducing any inconvenience to the Committee members.”
[16] There is merit in each of those points and we also attach considerable weight to the fact that the RIU had originally represented that no application for costs would be made. It is not unreasonable to infer that the Respondent had an expectation or understanding that no costs would be sought by the Informant.
[17] Weighing up all factors, the Committee makes no order for costs in favour of the RIU.
[18] The Respondent is ordered to pay costs in the sum of $350 to the Judicial Control Authority.
R G McKENZIE S C CHING
Chairman Committee Member
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