Appeal – Decision in Relation to Costs dated 23 December 2021 – Wiremu Pinn

Background

1. In a decision dated 16 December 2021 the Tribunal gave its decision on an appeal by the Appellant against the penalty which had been imposed by the Adjudicative Committee on a charge under Rule 638(3)(e).

2. The Appellant had his class B apprentice riders licence suspended for a period of three (3) months and on appeal this Tribunal quashed that penalty and instead imposed a suspension of two (2) months.

3. At the hearing Counsel for the Appellant sought an order for costs.

Appellant’s Submissions

4. Written submissions were filed on behalf of the Appellant seeking costs against the Respondent given the Appellant was successful in his appeal against the penalty.

5. The actual amount of costs sought was 60% of the Appellant’s actual costs incurred. These amounted to legal costs of $5,269.50 including GST plus the $250.00 filing fee. This submission was primarily that costs should follow the event and given the appeal had some success there should also be a consequential awarding of costs in the Appellant’s favour.

Respondent’s Submissions

6. The Respondent emphasised the award of costs was a discretion which is both broad and unqualified. It must however be exercised on a principled basis and there should not be any presumption of costs either way.

7. Reference was made to previous Appeals Tribunal decisions in Dunn v RIU dated 19 June 2018 and also P A Butcher v RIU on 21 December 2011. Quoted was the following:
“The RIU is a creature of statute. It has an obligation to ensure that the Rules of racing (whether thoroughbred, harness or greyhound racing) are upheld. It is a disciplinary body expressly created to ensure that industry Rules are obeyed. It is important that those Rules be obeyed for the protection of the general public who interest themselves in racing and in order to maintain confidence in the conduct of the Racing Industry.”

8. No one would disagree with these words. It was submitted the Respondent should not be punished for protecting the interests of the race going public. Although the period of suspension was reduced by this Tribunal, the substituted penalty was both significant and far greater than the period which had been sought by the Appellant at the hearing.

9. There was also reference to the fact situation which had not been seen before by Officials, the Adjudicative Committee or the Tribunal and therefore the Respondent ought not to bear the costs in bringing this charge.

Discussion

10. The Respondent properly brought the charge against the Appellant in the first instance. It arose following complaints by members of the public to the SPCA which was subsequently investigated by the Respondent.

11. Rule 1007(3) reads:
“The Appeals Tribunal may order that all or any of the costs and expenses of any party to the appeal, any other person granted permission to be heard at the hearing by direction of the Chairman of the Appeals Tribunal, NZTR and/or any employee or Officer thereof, the Racing Integrity Board and the Appeals Tribunal be paid by such person or body as it thinks fit….”

12. We therefore have a discretion in this regard, although as referenced by the Respondent’s submissions this discretion must be applied in a principled manner.

13. Given the complaint by the public and the considerable emphasis now placed on animal welfare issues in the industry, the Respondent has acted entirely appropriately in both investigating the matter and bringing a charge under the relevant Rule.

14. We should also note we find the submission by the Appellant that the Respondent could have taken no steps to defend the appeal and simply abide by the decision of the Appeals Tribunal to be not at all compelling. In fact in our view the Respondent acted entirely appropriately in seeking to defend the position taken by the Adjudicative Committee.

15. As referenced in the Butcher case the Respondent is a body created by statute with clear statutory obligations to protect the integrity of the Industry. Its actions have been entirely appropriate.

16. Furthermore, the Appellant argued at the appeal the starting point for the penalty should have been in accordance with the Guidelines for a breach of the Whip Rules. We disagreed with that. Whilst allowing the appeal and quashing the original penalty, the substituted period of suspension was considerably greater than sought by the Appellant.
17. For these reasons we do not consider an award of costs against the Respondent to be appropriate.

Decision

18. The application for costs by the Appellant is declined, although we order the appeal filing fee of $250 be refunded.

A B Harper
Chairman