Appeal – Decision as to Costs dated 27 June 2022 – Peter McKenzie

1. INTRODUCTION

1.1 The Tribunal issued a decision dated the 20th of May 2022. That decision incorporated directions issued by the Tribunal dated the 30th of April 2021, Rulings of the Tribunal dated the 17th of June 2021 and a further Ruling of the Tribunal dated the 25th of March 2022.

1.2 In the decision of the 20th of May 2022 the Tribunal directed that each party was to file submissions as to costs. Those submissions have now been received and considered by the Tribunal.

2. SUBMISSIONS FOR THE RACING INTEGRITY BOARD (RIB)

2.1 The submissions on costs for the RIB advise that the total costs incurred since the filing of the Appeal as long ago as the 23rd of October 2020 totals $23,286.25. The submissions set out the numerous matters which Counsel for the RIB was required to undertake. Those are set out verbatim:

a) reviewing the significant number of memoranda filed by Mr McKenzie following the filing of the Appeal on 23 October 2020;
b) responding to requests;
c) reviewing Minutes issued by the Appeals Tribunal;
d) reviewing lengthy submissions and extensive evidence filed by Mr McKenzie in advance of several hearings and in respect of several matters dealt with on the papers;
e) drafting and filing submissions in respect of various matters prior to the substantive hearing;
f) appearing at teleconferences and preliminary hearings;
g) drafting and filing submissions for the substantive hearing;
h) appearance at the substantive hearing on 21 and 22 March 2022;
i) drafting and filing submissions on testing procedures following the substantive hearing; and
j) drafting and filing this Memorandum on Costs.

2.2 The RIB submissions acknowledge that the usual practice is to award a proportion of the total costs incurred generally around 60%. In the circumstances of this case the RIB submits that there should be a full award of costs that is to say indemnity costs. In support of that position it is said that the Appeal was meritless based upon an erroneous legal argument.

2.3 It is said for the RIB that the lack of merit in the Appeal was pointed out to Mr McKenzie on numerous occasions. Further it is said that the taxpayer or Industry participants should not subsidise Appeals which lack merit. It is submitted that Mr McKenzie’s approach which involved placing a large volume of repetitive and irrelevant material before the Tribunal has added to the time involved and necessarily the costs that have been incurred.

2.4 The submissions for the RIB point to the decision in RIU v Gommans, Jenkins and Poutama 24 July 2017. In that case an award of 80% of costs were made. The Tribunal has carefully considered that decision.

2.5 Finally it is said for the RIB that Mr McKenzie advanced the same meritless arguments before this Tribunal that were rejected by the Adjudicative Committee.

3. SUBMISSIONS BY MR McKENZIE

3.1 Mr McKenzie has filed lengthy submissions. He first requests that the Counsel for the RIB provide an itemised account of all the costs claimed. The Tribunal considers that the figure advised by the RIB for total costs is perfectly reasonable given the very extended timeframe for the determination of the Appeal. Further there were attendances in person in Wellington and then the extended two day hearing at the Ohau Community Centre near Levin. The Tribunal does not require the RIB to provide itemised accounts.

3.2 Mr McKenzie’s submissions repeats the request that the Chairman recuse himself. That request has been made repeatedly. The request is denied.

3.3 The submissions repeat the argument as to the merits of the Appeal. Mr McKenzie yet again advances the proposition that the presence of the prohibited substance Cobalt at prohibited levels does not and never would threaten the integrity of a race result. He says that no final costs can be justified for adjudicating upon a Rule which he contends is wholly dependent upon scientific impossibility. This is essentially the proposition that was advanced before the Tribunal at the substantive hearing and which is addressed and rejected in the decision of the 20th of May 2022.

3.4 Mr McKenzie requests that the Tribunal retract what he describes as ‘this farcical decision’. The sentence where that expression occurs is as follows:
Will this Tribunal of Messrs McKechnie and Wimsett at this eleventh hour not acknowledge the perversity of their conclusion and retract this farcical decision?

3.5 Mr McKenzie’s submissions are at times highly emotive. He again makes reference to the Witches of Salem and the Nuremberg War Trials. These historical events have been referred to in previous communications with the Tribunal: reference the McKenzie email of 24th January 2022.

3.6 In summary the essence of Mr McKenzie’s position is that the decision of the Adjudicative Committee was wrong. The decision of this Tribunal was wrong and that in those circumstances there should be no costs awarded.

4. COSTS INCURRED BY THE TRIBUNAL

4.1 The costs incurred by the Tribunal amount to something over $14,000. There was extensive travel required by the Tribunal members. The figure spoken of includes that cost together with accommodation and the costs involved in obtaining suitable venues in Wellington and at the Ohau Community Centre.

5. DISCUSSION

5.1 Mr McKenzie’s case was based upon the proposition that Cobalt is not a performance enhancing substance. He contended that the relevant Rule had no validity for that reason. He was also highly critical of how the Rule came to be adopted in New Zealand. For reasons explained in the decision of the Tribunal the Rules in place must be applied and cannot simply be ignored.

5.2 Mr McKenzie filed voluminous material with the Tribunal in support of his submission that the Rule lacked validity. Much time was spent reviewing that material.

5.3 There were two in person hearings and numerous communications from Mr McKenzie.

5.4 For reasons explained in the decision of the Tribunal the submission that the Rule should not be applied was unsustainable. There is thus some force in the submission for the RIB that the Appeal was without any merit. The Tribunal has concluded that there should be an award of costs at around 80% of the costs incurred by the RIB and the Tribunal. In the case of the RIB that comes to a figure, rounded out, of $18,600. In the case of the Tribunal that comes to a figure, rounded out, of $11,400. Those are the costs which the Tribunal awards. Mr McKenzie will pay costs to the RIB of $18,600 and will pay costs to the RIB in relation to the hearing before this Tribunal of $11,400.

6. REQUEST FOR STAY

6.1 Since receiving Mr McKenzie’s submissions on costs he has emailed the Tribunal with a request for a stay of the decision on costs until the determination in the High Court of the proceedings by Sheryl Wigg. That is an application for Judicial Review following a determination by an Appeals Tribunal in relation to a Harness Racing breach. It is understood that the Judicial Review proceedings will be heard in August. The determination of that matter is not a valid reason for delaying this decision on costs or for granting a stay. That application is declined.

DATED this 27th day of June 2022

Murray McKechnie
Chairman
Signed pursuant to Rule 1007(5)