Appeal – Decision dated 22 February 2022 – Calum Weir

BACKGROUND:

1. In its decision dated 20 December 2021, following a penalty hearing on 22 November 2021, an Adjudicative Committee imposed a fine of  $1,120 on the Applicant for an admitted charge of misconduct by using improper and abusive language and made the following order in relation to costs:

Mr Weir is ordered to pay costs of $3,191.80 (being RIB’s legal costs for the sum of $3,155 and costs of $36.80 for transcription of Mr Weir’s interview).

2. Mr Weir has filed a Notice of Appeal on the ground that the amount of costs charged was excessive.

3. A teleconference was held on 31 January 2022, attended by the members of the Tribunal, Mr Weir and Mr Irving. It was agreed that the Appeal could be determined “on the papers” as provided in Clause 47 of the Common Rules of Practice and Procedure contained in the Seventh Schedule to the Rules of New Zealand Greyhound Racing Association.

4. For the reason that the Adjudicative Committee’s decision did not explain how the amount of costs awarded had been arrived at, the Tribunal ordered that the Respondent should file written submissions addressing this, following receipt of which and service on the Appellant, the Appellant was to file his written submissions.

5. Written submissions have now been received from both parties.

SUBMISSIONS OF THE APPELLANT:

The Appellant filed the following submissions following receipt of the Respondent’s submissions below:

1.  No breakdown in costs was provided by the submissions end-date for the RIB. I was provided with a total amount with RIB claiming 60% of which the total was $2,400.

2.  A breakdown was subsequently provided including a new costs award to the Adjudicative Committee – $755.00 being 34% of the Committee’s cost of $2,200.00. This has been misrepresented by the Respondent in his submissions. The decision of the Adjudicative Committee, in relation to costs, clearly stated

Mr Weir is ordered to pay costs of  $3,191.80 (being RIB”s legal costs for the sum of $3,155 and costs of $36.80 for transcription of Mr Weir’s interview).

3.  Counsel for the RIB stated in his invoice that he had “secured a resolution”. This is only correct in respect of the guilty plea, apology, moderate fine and restorative justice.

The Appellant filed the following submissions with his Notice of Appeal:

1.  The excessive costs awarded against myself would leave myself and young family in extreme financial hardship after an already extremely costly year with several stoppages to earnings.

2.  This is low level misconduct.

3.  Summary of Facts and accusations from the complainants and the RIB were inconsistent and incorrect requiring reviews and agreed changes hence the RIB needing representation to fix the multiple issues.

4.  The submissions then cited extracts from a letter from counsel for the RIB and the Appellant’s counsel.

This is not a case for disqualification or suspension therefore.

I am sure that he [the Appellant] will incur no more than a modest fine which will represent a significant saving on the cost of a two-day fixture and the risk of adverse costs awarded to both the RIB and the Committee.

5.  I believe I have had my rights and beliefs persuaded by the completely incorrect and misinformation provided to myself via the legal representation from the RIB.

6.  The final comment from the counsel for RIB in the letter is “I say this is no more than low level misconduct”.

SUBMISSIONS OF THE RESPONDENT:

1.  Mr Weir has lodged an appeal against the costs awarded by the Adjudicative Committee in its written decision on penalty dated 20 December 2021 and delivered on 21 December.

2. Paragraph 32 of the decision refers: “Mr Weir is ordered to pay costs of $3,191.80 (being RIB’s legal costs for the sum of and costs of $36.80 for transcription of Mr Weir’s interview”.

3. There is no detail provided for how the amount of $3,155.00 was deduced.

4. Rule 66.12 of the GRNZ Rules of Racing provides the Adjudicative Committee can order costs as it sees fit. The Seventh Schedule of the GRNZ Rules also provides:
29. Costs
29.1 On the determination of an information or its dismissal or its withdrawal, the Judicial Committee may order that all or any of the costs and expenses of:

(a) any party to the hearing;

(b) any person granted permission to be heard at the hearing by direction of the Chairperson of the Judicial Committee;

(c) NZTR or HRNZ or GRNZ (as the case may be) and/or any employee of officer thereof;

(d) the Judicial Control Authority and the Judicial Committee; be paid by such person or body as it thinks fit.

5. The RIB’s written Penalty Submissions dated 19 November detail the costs sought in the last two paragraphs. No finite figure for legal costs was presented as the matter had not reached its conclusion:
24. The RIB seek legal costs of preparing the matter for a defended hearing…
25. The RIB also seek costs of $36.80 for the transcription of Mr Weir’s interview.

6. In the Penalty Hearing on 22 November there was no discussion as to costs.

7. On 21 December, following correspondence with the Executive Officer regarding a costs amount sought, the RIB submitted the invoice for legal services provided by RIB Counsel, David Jackson.

8. The amount of this invoice was $4600 ($4000 +GST) for “professional services since 17 September 2021 and up to the conclusion of a sentencing hearing before the JCA on 22 November 2021 including receipt and review of charging material, analysis and advice, attendances on three telephone conferences with the JCA, extensive attendances on Al Davis of counsel for Weir and on Simon Irving re video footage and so on, securing resolution and attending on the JCA for sentence and all incidental attendances thereto.”

9. When submitting the invoice, the RIB requested the costs sought in line with the standard award of 60% of legal fees, which would equate to $2,760 (a difference of $395 from the cost figure awarded).

10. The RIB has incurred these costs as a result of investigating and prosecuting Mr Weir for a breach of the Rules.

11. Mr Weir, through his counsel, denied the charge as indicated in the first teleconference on 24 September and following a further teleconference, a two-day defended hearing fixture was set for 22 November. Only in a third teleconference on 10 November did Mr Davis, following extensive discussion between counsel, advise the Committee that Mr Weir would change his plea.

12. The RIB would also conclude that Mr Weir should also have been ordered to pay the usual contribution to the Adjudicative Committee costs.

13. Page 2 of Mr Weir’s initial appeal submissions is a page (2 of 2) of a letter written by RIB counsel David Jackson to Mr Weir’s counsel Allister Davis, in which Mr Weir has underlined a number of sentences. This letter between counsel was scripted on a “without prejudice” basis when counsel were attempting to reach resolution and should therefore be considered “privileged” and not considered by the Committee.

REASONS FOR DECISION:

1.  The power for an Adjudicative Committee to make an award of costs is contained in Rule 66.12 and para 29.1 of the Common Rules of Practice and Procedure for the Adjudicative Committee and Appeals Tribunal:

29.1 On the determination of an information or the dismissal of an information or its withdrawal, the Adjudicative Committee may order that all or any of the costs and expenses of:

(a)  any party to the hearing;

(d)  the Racing Integrity Board and Adjudicative Committee;

be paid by such person or body as it thinks fit.

2.  Guidance can be obtained from the (then) Judicial Control Authority Practice Note on Costs and Filing Fees (as at 3 September 2015).

3.  That Practice Note states, at para 6, that general principles to be taken into account include the following:

(a)  Decisions whether to award costs, and in what amount, are discretionary

(b)  Under general costs principles an award of costs should only be made:

 (i)   Against a defendant, where the charges have been proved against him or her; noting that there may be cases where, although the charge has been proved it may not be appropriate to award costs against an unsuccessful defendant. Such cases will be rare.

 (c)   In cases where costs are awarded, costs are usually awarded against the unsuccessful party or parties in the proceedings in favour of the party or parties who have succeeded and the authority.

(e)   It is desirable to recover costs incurred as a result of the defendant’s conduct from the defendant rather than passing those costs on to the racing industry as a whole.

(f)   There is a public interest in bringing charges in order to better promote and protect the interests of consumers and the integrity of the racing industry.

(g)  The amount of any costs awarded must be reasonable in all the circumstances of the case.

(h)   The amount of costs will usually be a proportion of the actual costs incurred by the party claiming costs and/or the authority.

(i)   In general, 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, recognising that costs are discretionary and there will be a range of factors which might persuade an Adjudicative Committee or the Appeals Tribunal to move up or down from that starting point.

(ii)   In general, where costs are awarded to the Committee a good rule of thumb is an award of 100% of the actual costs reasonably incurred by the Committee, recognising that because costs are discretionary there may be a range of factors which might persuade an Adjudicative Committee or the Appeals Tribunal to move down from that starting point.

9.   A defendant who seeks to rely on a lack of financial means in opposing an award of costs must provide evidence in a form satisfactory to the  Adjudicative Committee or the Appeals Tribunal containing information on the sources and amount of the defendant’s income, assets, liabilities and outgoings.

4.   The only reference to costs in the written decision of the Adjudicative Committee is in para [32] where it is stated:

Mr Weir is ordered to pay costs of $3,191. 80 (being the RIB’s legal costs for the sum of $3,155 and costs of $36.80 for transcription of Mr Weir’s interview).

5.  The Respondent, in his penalty submissions, states that, at the penalty hearing, there was no discussion as to costs.

6.   The Appellant is justified in asserting that no breakdown in costs was provided and, in particular, the discrepancy between the amount of $3,191.80 and 60% of the RIB’s legal costs ($2,400), together with the transcription cost ($36.80) was not explained.

7.   The amount of the discrepancy is $755.00 which, it has since been ascertained, was calculated on the basis of a percentage of the costs of the Adjudicative Committee (34% of $2,200.00).

8.  The prosecution of breaches of the Rules is a fundamental function of the RIB. When prosecution of a breach succeeds, and the Respondent has been proved to have breached the Rules, the Adjudicative Committee has the task of deciding the code’s response in terms of penalty. Since the RIB may have expended considerable resources in proving the breach, it is reasonable to recoup some or all of that expenditure.

9.  A hearing is an expensive process for both parties. The Appellant has, of course, to bear the expenses of legal fees associated with his defence. The RIB incurs, not only prosecution expenses but also Tribunal expenses.

10.  In the present case, it is necessary to traverse events leading up to the penalty hearing on 21 November 2021. The events leading to the charge of misconduct by using improper and abusive language against the Appellant occurred on 29 July 2021. From the outset, the Appellant asserted that he intended to defend the charge.

11.  A teleconference was held on 24 September 2021 during which the Appellant, through his counsel, denied the charge. A subsequent teleconference was held on 18 October 2021 at which the Adjudicative Committee was advised that counsel had been in discussions in an attempt to resolve the matter. Discussions were said to be ongoing. The charge was set down for hearing over two days on 22 and 23 November 2021, an earlier hearing date of 2 November being vacated. The Minute issued by the Adjudicative Committee recorded the the later hearing would “ensure the parties have sufficient time to debate and discuss the issues with a view to resolving the matter and, if that cannot occur, to at least narrow the issues and focus for the hearing”.

12.  A further teleconference was held on 10 November 2021. Counsel for the Appellant advised that his client now intended to plead to the charge. It was recorded in a Minute of the Adjudicative Committee that counsel “will now discuss the Summary of Facts in the hope that an agreed summary is presented” and also “share with each other their views on the possible penalty”. It was further recorded that the matter would still be called on 22 November 2021 when “it seems likely” that a plea will be entered.

13.  The Appellant pleaded guilty to the charge at the hearing on 22 November 2021. It is understood that there was no discussion as to costs at that hearing. The written decision of the Adjudicative Committee was delivered on 20 December 2021.

14.  The power for an Adjudicative Committee to order against a Respondent clearly exists, but costs need to be reasonable. There is a concern in the present case that the practical outcome is that the costs order will likely have a more significant impact for the Appellant than the penalty itself. The Appellant was fined $1,120.00 by the Adjudicative Committee.

15.  Procedural fairness requires that the Adjudicative Committee, having awarded substantial costs, provide written reasons.

16.  Some factors that an Adjudicative Committee should consider when exercising discretion to order costs include the degree of success, if any, of the Respondent of resisting the charge, whether the Respondent cooperated with respect to the investigation and offered to facilitate proof by admissions, etc, and the financial circumstances of the Respondent. A significant costs award was appropriate having regard to the fact that the Appellant did not enter a guilty plea to the charge until the day of the hearing, requiring the RIB to incur ongoing costs.

17. The Respondent has, appropriately, not attempted to recover investigation costs but only legal fees relating to the prosecution of the charge. In this regard it has engaged the services of counsel, as the Appellant himself had done so. The Respondent has not attempted to recover full legal fees, but only 60% thereof. The Tribunal has examined the invoice rendered by counsel and finds it to be reasonable and within the range that could reasonably have been anticipated in the circumstances. The Appellant notified his admission of the charge just prior to the date set down for hearing as a defended hearing.

18.  The costs of $755.00 which the Adjudicative Committee awarded in its own favour was, we believe, in the nature of a “hearing fee” – a single administrative charge intended to compensate to costs incidental to the Adjudicative Committee.

19.  The costs awarded by the Adjudicative Committee we find were, per se, reasonable and justified.

20.  However, there are three matters that concern this Tribunal. Firstly, at the penalty hearing before the Adjudicative Committee when the Appellant would have had the opportunity, through his counsel, to make submissions on costs, the matter of costs was not raised. When its decision was issued, one month later, that decision contained a bald order for costs in the sum of $3,155.00, plus a disbursement. Secondly, and following from that, the Appellant was denied the important opportunity to make any submissions in relation to his financial circumstances. Finally, no breakdown or explanation for the costs award arrived at was given in the Adjudicative Committee’s written decision, effectively, obliging the Appellant to file this Appeal.

21.  The financial circumstances of a party or ability to pay, as a general rule, should be taken into account in fixing a costs award. This Tribunal has no information concerning the Appellant’s financial position other than his submission that “excessive costs against myself would leave myself and young family in extreme financial hardship after an already extremely costly year with several stoppages in earnings”.

22.  We accept the likelihood that the combined effect of the fine and the costs order will cause some degree of hardship to the Appellant. A total cost of $4,311.80 (fine and costs) is not an insignificant burden. We need to have some regard to this.

23.  The Tribunal is satisfied that the Appeal should partially succeed for the reasons given in paras 20, 21 and 22. In coming to that conclusion,  we find no fault and make no criticism of the Adjudicative Committee for its calculation of the original costs award. However, this Tribunal is required to make its own assessment of what would be an appropriate costs award in all of the circumstances. In making this assessment, the Tribunal has taken the costs award of the Adjudicative Committee and reduced it by a percentage, which we have fixed at 25% which we consider to be fair and just, and appropriate, in all of the circumstances.

24. Accordingly, the costs award of the Adjudicative Committee in para [32] of its written decision dated 20 December 2021 is set aside and the following order substituted therefor.

25. The Appellant is ordered to pay costs in the sum of $2,396.80 made up as follows:

RIB legal fees                                                  $1,800.00

RIB costs Adjudicative Committee costs     $560.00

Transcription cost                                           $36.80

26.  There will be no order for costs pertaining to this Appeal.

27.  It is ordered that the filing fee for the Appeal be refunded to the Appellant.