Appeal – Decision of Appeals Tribunal as to Costs dated 31 July 2023 – Sheryl Wigg

Background

1. The Appellant faced three (3) charges of a breach of Rule 1004C(1)(b) of the New Zealand Harness Rules of Racing. This Rule is commonly referred to as the “One Clear Day Rule”. The Appellant admitted all three (3) charges and on 4 March 2022, the Adjudicative Committee imposed a penalty of nineteen (19) months disqualification.

2. The Appellant appealed that penalty and on 10 May 2022 an Appeals Tribunal dismissed the appeal.

3. Shortly after on 13 May 2022, the Appellant filed proceedings seeking:

(a) A stay of disqualification in the Appeals Tribunal; and

(b) A judicial review of the Decision of the Appeals Tribunal through the High Court.

4. The Appeals Tribunal on 19 May 2022 declined to consider the grant of the stay of disqualification on the basis that once the appeal had been determined, it no longer had statutory authority to grant any stay.

5. At the same time the Appellant filed an interlocutory application in the High Court seeking a stay of disqualification and this was granted by the High Court on 30 May 2022.

6. Following the determination of the judicial review proceedings the matter was referred back to the Adjudicative Committee for reconsideration of the penalty, and on 21 June 2023, the Adjudicative Committee reconsidered the matter and imposed a penalty of nine (9) months disqualification. They ordered costs should lie where they fall.

7. Recently on 18 July 2023 the Appellant filed an application for costs, only in relation to the Appeals Tribunal decision. The Tribunal declined jurisdiction on the application to grant her a stay of disqualification.

8. The Adjudicative Committee on 24 July 2023 declined to consider the application for costs on the stay application on the basis it did not have jurisdiction to consider any application as to costs for a hearing which had been dealt with by an Appeals Tribunal.

9. This Tribunal will now consider the application, which at the risk of repetition, is limited solely to an application by the Appellant following the decision by the Appeals Tribunal to not grant the stay of disqualification on the grounds it did not have jurisdiction to do so.

10. The Appellant seeks costs of $7,500.00. The Respondent no longer seeks costs.

11. A most useful Joint Memorandum has been filed with the Tribunal including an acknowledgement the matter may be determined on the papers. The Tribunal wishes to thank both Counsel for their cooperation in putting this Joint Memorandum together.

Appellants Submissions

12. By Memoranda dated 18 July 2023 and 21 July 2023, the Appellant seeks costs of $7,500.00.

13. In a Memorandum dated 18 July 2023, Mr Dale on behalf of the Appellant sought an order for costs from the Adjudicative Committee. There were three (3) aspects detailed in the Memorandum, including:

I. Jurisdiction;
II. Entitlement to costs; and if so
III. Quantum of costs.

14. The initial question in relation to jurisdiction was considered in some detail by the Adjudicative Committee, and its decision dated 24 July 2023 determined it did not have jurisdiction to consider a costs application in relation to a proceeding which had been determined by an Appeals Tribunal.

15. In relation to entitlement Mr Dale argued as the Appeals Tribunal’s decision was overturned by the High Court, the Appellant was seen as being the successful party in the High Court.

16. There was little in support of the claim for $7,500.00 other than a statement it was considered an appropriate amount in terms of time spent and High Court scale costs.

Respondents Submissions

17. By Memorandum dated 19 July 2023, the Respondent filed written submissions to the Adjudicative Committee in relation to costs.

18. The costs application was opposed on the basis the decision of the Appeals Tribunal was not overturned by the High Court. The appropriate forum for seeking a stay of disqualification was the High Court given that was where the Judicial Review proceedings had been filed.

19. Given the Appeals Tribunal had declined the application for stay on the basis it did not have jurisdiction, it could therefore be said the Respondent successfully raised the jurisdictional issue that the Tribunal was functus officio and was the successful party rather than the Appellant.

20. It was further submitted that even if this Tribunal does determine costs should be payable, the Respondent does not accept the amount of $7,500.00 as justified. The proceeding for which costs are sought was determined on the papers following the filing of Memorandum by the parties.

Discussion

21. Generally the successful party for any proceedings will seek a reimbursement of costs.

22. The determination of costs is at the discretion of (in this case) this Tribunal.

23. There are three (3) options available, being:

(a) The unsuccessful party should pay the costs of the successful party; or

(b) Costs will lie where they fall. In other words no party is ordered to pay the costs of the other; or

(c) This successful party may be ordered to pay the costs of the unsuccessful party. This would be the most unusual outcome.

24. An application was made to the Appeals Tribunal for a stay of disqualification. The Appeals Tribunal declined jurisdiction on the basis, once its appeal decision had been issued, it no longer held any jurisdiction. As a consequence an application was made to the High Court successfully for the grant of the stay of disqualification.

25. Mr Dale submits the High Court overturned the decision of the Appeals Tribunal, and on that basis the Appellant should be entitled to an award of costs. However this decision on costs is confined to the costs for the unsuccessful application for a stay not the penalty imposed.

26. We accept the Respondent’s submission that the High Court did not overturn the refusal of a stay on jurisdictional grounds, but simply granted the stay of disqualification using it’s extant jurisdiction as the High Court was the appropriate body to make that order pending the Judicial review determination.

27. The Respondent successfully opposed the stay and would normally be entitled to costs. The Respondent however does not pursue a costs claim.

28. Only in unusual cases would an unsuccessful party be awarded costs. In the present case the Appellant’s application was made to a Tribunal that was functus officio. That procedural error weighs against any costs award.

29. We have come to the conclusion in these circumstances, costs should lie where they fall.

Decision

30. There will be no award of costs in respect of the application to the Appeals Tribunal for the stay of disqualification.