GRNZ Request for Review – Reserved Decision dated 13 July 2021 – Phil Green and Geoff Farrell

RESERVED DECISION OF ADJUDICATIVE COMMITTEE

Background Information

[1] Following the running of Races 5 and 9 at the Premier meeting of the Auckland Greyhound Racing Club on 13 June, objections were lodged against the winner of each race.

[2] With regards to Race 5, Mr G Farrell, acting for the Connections of ZIPPING BARTY lodged a Notice of Objection alleging BIG TIME KAYLEE was not entitled to be placed in the Race on the grounds it was ineligible.

[3] With regards to Race 9, Mr P Green, acting for the Connections of RIVALRIES, BERET GIRL and SPRING QUEEN, lodged a Notice of Objection alleging JILLIBY LITSA was not entitled to be placed in the Race on the grounds it was ineligible.

[4] Both objections were heard separately by Chief Stipendiary Steward, Mr Wallis, who after considering the submissions and information provided by GRNZ in relation to the eligibility of BIG TIME KAYLEE and JILLIBY LITSA, determined that both Greyhounds were eligible to race.

[5] The Applicants, Mr Green and Mr Farrell, have each requested a Review pursuant to r 65.3 of the Chief Stipendiary Steward’s decision as to the eligibility of the respective Greyhounds.

[6] The two Greyhounds in question are trained by Mrs L Cole. She was invited to be present at the Review Hearing as an interested party. She declined, stating in an email to Mr Wallis on 25 June 2021 that she did not see what the objections had to do with her and Mr Cole. She said it was a GRNZ problem not theirs. She stated they had followed the Rules and pulled their dogs out before the time frame which was in the Rules set by GRNZ and stated in their conditions. GRNZ had accepted their nominations for Auckland as there were no stand downs for the two dogs. Therefore, the case was not their concern, but one for which GRNZ had to answer.

The hearing

[7] At the commencement of the hearing, following an outline of procedural matters, Mr Farrell and Mr Green were afforded the opportunity to outline the general nature of their objections.

[8] Mr Farrell submitted it was his contention BIG TIME KAYLEE (Race 5) was ineligible to race because after having been withdrawn from another Race on the day, the Amazing Chase (Race 12), the dog should have been subjected to r 40.3, which, subject to limited exceptions, would have required the dog to stand down. Mr Farrell further submitted that the decision by the Connections to withdraw BIG TIME KAYLEE from Race 12 was pre-emptive because at the time of being withdrawn it was already nominated for Race 5.

[9] Mr Green submitted that he agreed with the grounds raised by Mr Farrell and commented that JILLIBY LITSA (Race 9) was ineligible because it should have been subject to an automatic 28-day suspension, unless the dog’s withdrawal was the result of injury, or other exceptional circumstance.

[10] Given that both objections raised broadly the same issues, with the agreement of the parties, both objections were heard together.

The Rules

[11] The Reviews are brought pursuant to rr 65.1(a), 65.3 and 66.20 of the GRNZ Rules of Racing.

[12] Rule 65.1(a) provides: “An objection may be made against any Greyhound in respect of any Race on the following grounds: That one or more Greyhounds is not entitled to be placed in the Race in accordance with the Judge’s decision provided that no objection may be made in relation to the Judge’s decision about placing under rr 53.11 or 53.12 [these are not relevant to the matter before us as these two rules relate to the Judge correcting any mistakes]”.

[13] Rule 65.3 provides: Any party affected by a decision of the Stewards under rr 65.1(a) (if not prohibited by cl 21(2) of the Third Schedule of the Racing Act 2003) [which the applicants are not] shall be entitled to seek a review of that decision in accordance with r 66.20.

[14] Rule 66.20 provides: “The Judicial Committee may review any decisions made under … r 65.3…. A party who seeks a review of any decision under these Rules shall, no later than 4pm on the 14th day after and exclusive of the day on which the decision is given, lodge a written notice with the Executive Officer of the Judicial Control Authority.”

[15] We are aware of r 66.4 which states: “For objections under r 65.1(a) … the following provisions shall apply: (e) If the outcome of the hearing may affect the dividends payable in respect of any Greyhound or Greyhounds in any Race on that date, the hearing shall be concluded on that day and shall not be adjourned to any later date. Any decision of the Stewards or such other person conducting the hearing into the objection is declared to be final.”

[16] It can readily be seen that rr 65.3, 66.20 and 66.4(e) are contradictory. We view r 66.4(e) as applying to the situation where any further decision would affect the payment of dividends in the Race. Our decision will not. There is a clear express right of review in r 65.3 and we believe we have jurisdiction under that Rule.

[17] The Rules relied on by Mr Farrell and Mr Green in support of their objections are:

Rule 40.3: “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.” (An Offence is the contravention of the Rules: r 62.1(a).)

[18] Rule 40.7 “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 r 66.20.”

[19] Rule 1: “Invitation Race means a Race conducted in accordance with r 27.4.”

[20] Rule 27.4 “Invitation Race — This is a Race approved by the Chief Executive or his/her delegate as being an Invitation Race to which a Club may invite any Greyhound graded at C1 and above to compete. All classes have equal rights for inclusion. Invitation Races are penalty free.”

[21] Rule 1: “Final means a Race held under conditions prescribed by the Board for which eligibility may or may not have been determined in Heats and/or Semi Finals.”

[22] Rule 22.1 “Clubs shall have the right:

(c) To run Heats to decide starters and reserves for the Final of a Race provided that finalists are decided by placings in qualifying order from each Heat.

(d) Notwithstanding sub-clause (c) of this Rule, where a Club has installed a photo finish electronic timer any number of Heats may be run provided that finalists are decided by placings in qualifying order from each Heat (e.g. 7 heats, seven winners plus the fastest 2nd placed Greyhound). Under this Rule the maximum number of starters (8) must be allowed to qualify for a quarter-final, Semi-Final or Final.”

Evidence of Mr S Wallis

[23] Chief Stipendiary Steward, Mr Wallis, outlined the actions that he took, including his seeking advice from Mr Dore, the GRNZ, Operations Manager. He said that both Mr Farrell and Mr Green had approached him on the day and lodged objections to the Judge’s placing of the two dogs in question.

[24] Mr Wallis stated that after considering submissions and the evidence available to him on raceday, he made the decision that both dogs were eligible to run in their respective races. His decision was made on the ground that the Amazing Chase was not a Final and therefore was not captured by the provisions of r 40.3. The essence of his evidence was that in determining eligibility he relied heavily on the probity of the advice given to him from GRNZ. In particular, he referred to an email of 9 June (Exh 1) from Mr Dore in which he had queried whether the kennel of the two dogs had breached r 40.3 when he saw that morning that the dogs in question were in other races on the day. Mr Dore replied the Amazing Chase “is an Invitation Race and so does not carry the obligations of a Final and the dogs were withdrawn before the withdrawal time and forfeited their $200 entry fee as well as the opportunity for $1,000 prizemoney back to 8th.”

[25] Mr Wallis said he informed Mr Farrell and Mr Green of their right to seek a Review of his decision that it was an Invitation Race, not a Final, and that the dogs were eligible to race.

[26] In response to questioning, Mr Wallis said to his knowledge there had been no conferring of the Oversight Committee that was referred to in the conditions of the Amazing Chase. He said he was a member of that Committee and had received no advice of a meeting.

Evidence of Mr M Dore

[27] Mr Dore gave evidence via AVL. He provided a written evidential statement which he elaborated upon, and he answered questions from the parties.

[28] Mr Dore stated his role was that of Racing Operations and Welfare Manager, GRNZ. He had joined the organisation in September 2019.

[29] After racing on Sunday 6 June, he advised connections with dogs nominated for the Amazing Chase that were in contention to make the field and reminded them that the withdrawal time was 9.00 am Monday 7 June. He said he received three separate text messages from Mr B Coles on Sunday night 6 June 2021 requesting that three of the kennel’s dogs be withdrawn from the Amazing Chase. (This was before official withdrawals closed on the morning of 7 June.) They were BIG TIME KAYLEE, JILLIBY LITSA and NANGAR RIDGE.

[30] Mr Dore stated that on 8 June he received an email from Mr Death, Manager of Auckland GRC and Chair of the GRNZ Rules of Racing Committee, advising the three withdrawn dogs had subsequently been nominated for other races on the day. Mr Death queried, “Were they not subject to stand downs from the Amazing Chase?” It was Mr Dore’s belief that the Amazing Chase was an Invitation Race and therefore it was not subject to the provisions of a race categorised as a Final. He responded to Mr Death, therefore, that while it was disappointing that they did not wish to contest a $50,000 race, there was nothing restricting their nominations. He further commented in the email that as JILLIBY LITSA had been nominated for the Peter Earley Classic, an Invitation Race, that he would not be surprised if Auckland GRC chose not to invite that dog.

[31] Mr Dore said that he was further alerted to concerns via a communication from Mr Wallis on 9 June concerning a potential breach of r 40.3.

[32] Mr Dore explained to the Committee why he believed the Amazing Chase was not a Final. He said the race was unique and that all Invitation Races have never been categorised as a Final. There were qualifying races and there were no Rules that provided for this. He emphasised that the race is different from all others, although he later commented that one other race, the Golden Chase, was similar.

[33] Mr Dore said that the conditions of the 2021 version of the Amazing Chase were identical to the conditions set for the 2019 version of the race. (The 2020 race did not take place due to COVID-19.) He said the term “withdrawal” was not defined in the Rules but it was usually one hour after nominations. He was firm in his view that it was GRNZ’s position that the Amazing Chase is an Invitation Race, not a Final.

[34] Mr Dore acknowledged that issues with the conditions for the Amazing Chase had been raised in 2019, as evidenced by emails between himself and Mr D Emerson, but as Greyhounds Australia were updating their Rules at this time, it was thought desirable to wait until this exercise had been completed.

[35] It was pointed out to Mr Dore that the word Final was used on more than one occasion in the race conditions document. He said Final and Feature (races) could have multiple meanings. “Final field” was not defined in the Rules.

[36] It was further raised with Mr Dore that the race was not listed in the June Racing Schedule (Exh A) as an Invitation Race but as a C5, whereas other races, such the Peter Earley Classic, were referred to as Invitation (INV). He said the reference to the race being listed as a C5 was a mistake, which had not been corrected.

[37] Mr Dore explained the distinction between an Invitation Race and a Final and that r 40.3 only comes into play for a Final and not an Invitation Race. He added the race was not a Final due to the withdrawal time (9 am, 7 June 21), whereas in all other cases the withdrawal time refers to the race meeting, not a specific race, as was the situation with the Amazing Chase. He said that it was the withdrawal time that dictated or gave significant weight to the fact that the race was an Invitation Race, as opposed to a Final. He said that if it was a Final, the provisions of r 40.3 would have applied.

[38] In response to a question from Mr Farrell, Mr Dore said that starters in every Invitation Race are determined by a Committee, except for the Amazing Chase and the Golden Chase. Mr Farrell commented it was not an Invitation Race as any dog could enter and time trials would determine the final field. Mr Dore said it was an Invitation Race with selection criteria.

[39] Mr Dore said that he did not like the use of the word Final and concurred with Mr Farrell on this point. He said that it was not anticipated that Connections would withdraw their (in form) dogs from the Chase, and then nominate them for another race on the day. He agreed that this was not in the spirit of Greyhound Racing. Mr Dore added that with the benefit of hindsight there should have been a sanction for so doing. There was a published withdrawal time and it was difficult to impose sanctions on a person who withdrew a dog prior to this time. It needed to be spelled out clearly if a sanction other than losing the $200 entry fee was to be imposed. He added if there had been another penalty imposed, the two dogs might have started in the Amazing Chase.

[40] Mr Dore said that the issue of their withdrawal was never discussed by the Race Oversight Committee. This Committee was comprised of Mr Dore (Chair), Mr Robert Death, Mr Tony Music, Ms Venessa Trass, and a RIU (now RIB) Stipendiary Steward, whom we understand was Mr Wallis.

[41] Mr Dore said the 2019 conditions had just been rolled over with the exception of the change in the withdrawal time, which was for the purposes of a live box draw on Trackside.

The Applicants’ submissions

[42] Mr Farrell said the crux of the matter was the very confusing conditions of the race. He viewed the Amazing Chase as a Final. If a dog was to be withdrawn after selection after the last time trial there needed to be a valid reason given, as required by r 40.3, otherwise a Trainer or Owner could manipulate the field if they had a number of dogs in the field. BIG TIME KAYLEE should have received a penalty and not been allowed to race on the same day.

[43] Mr Green said r 22.1(d) (which provides for the running of heats for a Final based on placings and fastest time) made the Amazing Chase a Final. There had been an opportunity for GRNZ to make the Rules surrounding the race crystal clear in 2019 but they had “parked it”. There were so many unique things with the Amazing Chase, the issues with the conditions and the Rules should have been “ironed out”.

[44] Mr Green commented that Final field runners had been drawn and subsequently withdrawn without penalty. They should not have been allowed to race in other races on the card. One person, Mr Dore, had made all the decisions, whereas the issues should have decided by the race Oversight Committee. Mr Green pointed out that Mr Death, an expert on these matters, was on the Committee but was not consulted. Mr Dore had said he had taken advice on the Rules from an experienced Greyhound person, Mr Emerson. Mr Emerson was a not lawyer; he was an accountant.

Evidence of Mr R Death

[45] Mr Death was called as a witness by Mr Green.

[46] Mr Death qualified himself as an expert by outlining his considerable administrative experience in the Greyhound Industry dating back to 2005 (General Manager Auckland GRC 2005 to present; and Secretary Waikato GRC since 2019). He said he was a selector for both Clubs.

[47] Mr Death said that for the running of this year’s Amazing Chase the conditions concerning withdrawal date/time were changed to enable the box draw to go live on Trackside. Normally, he said, withdrawal was one hour after nominations closed, but the change was made in these covid times to ensure that before the draw a complete field of dogs (fit and able to be transported) was available to race. It was on that basis that the withdrawal time was added to the conditions of the race.

[48] Mr Death was adamant that the race is a Final in terms of the definition in the Rules. He said it is a series in which a pool of dogs competes to qualify up until 6 June 2021. They compete specifically in official races or solo time trials to achieve a time that enables them to gain selection for the Final field. He added there is a prescribed format for dogs to earn their place in the field (ie, the Final). There was a prescribed situation for the 10 fastest dogs to go into the Final. There was no discretion.

[49] Mr Death stated that the final fields for Group races are determined by heats. In the Amazing Chase, the conditions of the race were overseen by the race Oversight Committee by way of a conference call.

[50] Mr Death said that it was his expert opinion that the race was a Final and that r 40.3 applied. In his view an Invitation Race is specifically defined in the Rules, enabling clubs to define selection criteria, which would be approved by the Board. It is a race which is open to all dogs each with equal entry rights and the club decides the final field.

[51] The Amazing Chase, he said, in his view, was not an Invitation Race. The first running of the race was in 2017 and there were issues as to whether it was penalty free, which resulted in subsequent grading issues. To overcome this issue, subsequent races were enabled to be penalty free by describing it as an Invitation Race, but it was not one.

[52] When queried by the Committee concerning the reference in the June Schedule to the race on the GRNZ website being listed as a C5, Mr Death advised that it was not an error. It was initially a C5 and he believed it had just been rolled over each year from 2017. The conditions for the Amazing Chase would have been signed off by the Board.

[53] Mr Death confirmed to Mr Wallis that no concerns were raised with the Oversight Committee concerning the eligibility of the two dogs in question. There was no official correspondence between members of the Committee.

[54] Mr Death confirmed the timeline as follows:

(1) the final field for the race was known after the close of racing on Sunday afternoon;

(2) the final field was established on Monday morning (withdrawal time 9 am) and box draws followed in the afternoon; and

(3) the nominations for the remaining races closed Tuesday at noon.

[55] Mr Death concluded his evidence by affirming his belief that unless there was a valid reason (eg injury) or there were exceptional circumstances (eg road closures due to weather or covid or a funeral), the withdrawn dogs (BIG TIME KAYLEE and JILLIBY LITSA) should have been subject to r 40.3 and thus should have been stood down.

Summing up

[56] Mr Wallis submitted he made the eligibility decision on the day based on the information he received from Mr Dore that the race was not a Final. He submitted his decision on the day was the correct one.

[57] Mr Farrell submitted that in his opinion the Race was a Final and was subject to the provisions of r 40.3. Therefore, BIG TIME KAYLEE was not eligible to race in Race 5. He accepted that the Stewards had made their decision on the day in good faith, but the dog should have been stood down. Otherwise, a failure to do so “makes a mockery of the Rules”.

[58] Mr Green submitted the Amazing Chase was a Final as dogs were required to qualify for the race. He further submitted JILLIBY LITSA had been withdrawn from the Amazing Race without a valid reason. Therefore, it was not eligible to start in Race 9 and should have been stood down. The June Schedule referred to the Race as a C5, whereas some other races on the programme were described as Invitation Races. The Invitation classification was used to overcome the issue in 2017 of the race being penalty free and GRNZ had had ample time since 2019 to clarify the conditions of the race. They had not done so. He concluded his submission by adding that any concerns about the conditions of the race should have been dealt with by the race Oversight Committee and not left solely to Mr Dore, a man with barely two years in his role in the Industry.

Decision

[59] We have the task of reviewing the decisions of the Chief Stipendiary Steward to reject the objections into the Judge’s placings in Races 5 and 9 at the Premier meeting of the Auckland GRC on 13 June.

[60] We turn first to the Rules.

[61] Rule 65.3 states that the decision of the Stewards under r 65.1(a) may be reviewed. The procedure is outlined r 66.20.

[62] The key issue is whether the Amazing Chase was an Invitation Race or a Final.

[63] An Invitation Race is defined in r 27.4 as “a Race approved by the Chief Executive or his/her delegate as being an Invitation Race to which a Club may invite any Greyhound graded at C1 and above to compete. All classes have equal rights for inclusion. Invitation Races are penalty free.”

[64] Final is defined as in the Rules as “a Race held under conditions prescribed by the Board for which eligibility may or may not have been determined in Heats and/or Semi Finals.”

[65] It can readily be seen that while the definition of Invitation Race is relatively prescriptive the converse is true of that of Final.

[66] Confusion as to the status of the race arises from this very broad definition of the term Final in the Rules. It clearly could encompass a race such as the Amazing Chase. In which case, the Applicants submit that the Amazing Chase was not an Invitation Race but in fact a Final.

[67] The significance of their submission is that if the Amazing Chase is a Final the two dogs in question should have been suspended for 28 days pursuant to rr 40.3 and 40.7, in which case they would not have been able to run in their respective races on 13 June. Thus, the Applicants say they were ineligible to start and therefore should not have been placed by the Judge.

[68] We have heard conflicting evidence from Mr Dore, the Racing Operations and Welfare Manager for GRNZ, and Mr Death, the General Manager Auckland GRC.

[69] By definition, and based on past practices, according to Mr Death, the Amazing Chase fits the definition of a Final, as dogs had to compete and meet qualifying criteria. He states they were not selected to race by invitation. Mr Dore says it is an Invitation Race. Both Mr Death and Mr Dore agree that the labelling of the race as an Invitation Race was due to issues with respect to regrading of dogs that had arisen after the 2017 running. There are no regrading penalties imposed for Invitation Races, and GRNZ did not wish dogs to be regraded as a consequence of their performance in the Amazing Chase. Mr Death states the race is not an Invitation Race and the fact that it is described as a C5 in the Greyhound Racing Schedule was because the practice from 2017 had simply been continued. Mr Dore thought it was due to an error.

[70] We are satisfied that the penalty free aspect of the Amazing Chase was an issue for GRNZ which they decided to address. The intention of GRNZ was that the Amazing Chase be an Invitation Race. This is evident from the opening stanza of the conditions of the race:

“The Amazing Chase is an Invitation Race:

● The Amazing Chase shall be open to all greyhounds graded C1 and above who are registered to race in New Zealand at Noon on Wednesday 12 May 2021.”

[71] Mr Dore’s decision that the race was an Invitation Race and not a Final, which he confirmed when he received the query from Mr Wallis, was based on advice he had received from Mr Emerson, whom we are told is very experienced in the Greyhound Industry. Mr Emerson stated to him in an email on 4 December 2019 that “The Amazing Chase is a “Race” and not a “Final” as no Heats or Semis are run (definitions are very clear).” It is our view, however, that the definition of Final, at least, is far from clear. There was an opportunity for Mr Dore to put the issue of the dogs’ eligibility before the Oversight Committee, which the conditions of the Amazing Chase state was to deal with “race complaints, anomalies, queries, verification of final field, etc.” It may have been wise to have adopted this practice.

[72] We are of the view that the Amazing Chase could be described as both an Invitation Race and a Final, because of the width of the definition of the latter expression. We do not believe we need to consider whether the fact it is an Invitation Race precludes it from also being a Final, or vice versa. This is because Mr Wallis made his raceday decisions in good faith based on the information provided to him by Mr Dore.

[73] The decision was made, rightly or wrongly, by both GRNZ (by means of their delegate Mr Dore) and by the (then) RIU (by means of the Chief Stipendiary Steward) that the Amazing Chase was an Invitation Race not a Final.

[74] Mrs Cole was entitled to rely on the interpretation of the Rules and conditions of the Amazing Chase adopted by GRNZ. The kennel did so. It nominated BIG TIME KAYLEE and JILLIBY LITSA for Races 5 and 9. Each dog raced and won. The Cole kennel simply took advantage of a decision that was made by GRNZ that the race was an Invitation Race and not a Final. It withdrew BIG TIME KAYLEE and JILLIBY LITSA before the withdrawal time as entitled to do under the Rules and received a $200 penalty. Had GRNZ classified the race as a Final, then the two dogs would have been stood down. GRNZ did not, and the dogs were not. We cannot say the two dogs were not eligible to race in these circumstances.

[75] In simple terms, the dogs were eligible to race because they had not been stood down for 28 days (suspended) under r 40.7. The Chief Stipendiary Steward’s decision-making was understandably based on this determination. In the raceday context, he could not have acted otherwise. The dogs were thus entitled to be nominated and to race. Had the dogs been stood down and raced, then they would not have been eligible, and we would have addressed the issue of disqualification, but the key point is they were not stood down, as the race was determined not to be a Final.

[76] We conclude, therefore, that BIG TIME KAYLEE and JILLIBY LITSA were not stood down pursuant to r 40.7, and thus they were eligible to start in their respective races.

[77] We make a final observation.

[78] The definition of Final, as previously noted, is extremely broad and we believe it is capable of encompassing a race such as the Amazing Chase. The Rules and the Conditions of the Amazing Chase need to be revisited with some urgency to ensure that a situation such as that which has occurred in this case does not arise in the future. We note that Mr Dore, Mr Death, Mr Wallis, and the two Applicants, were also strongly of this view.

[79] Neither Review is successful. The placings in both Race 5 and 9 at the Premier meeting of the Auckland Greyhound Racing Club on 13 June are as called on the day by the Judge.

[80] There was no application for costs and there is no award of costs.

Dated at Dunedin this 13th day of July 2021.

Geoff Hall, Chairman