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Appeal R J Dunn and J R Dunn v RIU - Decision of Appeals Tribunal as to Costs dated 19 June 2018 - Chair, Mr M McKechnie

Created on 20 June 2018

BEFORE AN APPEALS TRIBUNAL OF

THE JUDICIAL CONTROL AUTHORITY

UNDER THE RACING ACT 2003

IN THE MATTER of the New Zealand Rules of Harness Racing

ROBERT JOHN DUNN, Public Trainer & JOHN ROBERT DUNN, Open Horseman

APPELLANTS

RACING INTEGRITY UNIT (RIU)

RESPONDENT

Appeals Tribunal: Mr Murray McKechnie, Chairman & Professor Geoff Hall

Present : Mr Paul Dale, Counsel for Messrs Dunn

Mr Robert Dunn

Mr Chris Lange, Counsel for RIU

Mr Neil Grimstone, Manager Integrity RIU

Mr Chris Lange, Counsel for RIU

Dr Leo Molloy

DECISION OF APPEALS TRIBUNAL OF JUDICIAL CONTROL AUTHORITY AS TO COSTS

DATED THIS 19th DAY OF JUNE 2018

1. The Tribunal issued a decision dated 1 June 2018. By that decision the fines which had been imposed upon Messrs Dunn were reduced from $14,000 to $7,800. Both Mr Robert Dunn and Mr John Dunn had faced four informations alleging breaches of the Prohibited Substance Rule 1004(1), (1A), (3), (3A) and (4) of the New Zealand Harness Rules of Racing. They had pleaded guilty.

2. The circumstances which led to the charges being laid against Messrs Dunn are set out in the decision of the Tribunal of 1 June.

3. At the conclusion of the decision of 1 June in paragraph 9 the Tribunal invited submissions on the issue of costs. In paragraph 9.1 the Tribunal expressed an entirely preliminary view that this might be a case where each of the parties could reasonably be required to meet their own costs and make an equal contribution towards some costs in favour of the JCA.

4. Submissions have now been received on behalf of the RIU and Messrs Dunn. Mr Dale, counsel for Messrs Dunn, has filed a brief response to the submissions filed on behalf of the RIU.

5. Mr Dale in his submissions contends that costs should follow the event and that as his clients were successful on appeal they should ordinarily expect a contribution from the unsuccessful party. Further, the submissions point to the RIU having changed its stance on appeal, having earlier proposed a level of financial penalty significantly less than that imposed by the Non-Raceday Judicial Committee. As to whether there should be some contribution towards the costs of the JCA, it is contended that the unsuccessful party should pay the hearing costs. It is further said that this is more compelling in this instance as the appeal might have been dealt with on the papers.

6. For the RIU it is submitted first that the Rule provides an unfettered discretion as to the award of costs, secondly that the principles which govern civil litigation are not applicable and thirdly that the decision of the Non-Raceday Judicial Committee did not fall within the category of a clear error and that it was therefore appropriate for the RIU to advance submissions in support of the committee’s decision notwithstanding that the appeal was successful and the fines reduced.

7. The RIU submissions from Mr Lange make detailed reference to the decision in PA Butcher v RIU 21 December 2011, a decision of an Appeals Tribunal in harness racing. That decision involves a comprehensive analysis of the approach to be taken to the award of costs where a charge proffered against a licensed person has not been found proved. The Butcher decision is acknowledged by Mr Dale in his reply submissions as containing a helpful discussion on cost principles in circumstances such as those which are found here. The reply submissions accept that the Tribunal has a broad discretion. It is said, consistent with the Butcher decision, that such discretion must be exercised upon a principled basis.

8. The circumstances which led to the charges being proffered against Messrs Dunn were somewhat unusual. Those circumstances are canvased in the decision of 1 June. At the hearing before the Tribunal both parties, by their counsel, lodged extensive submissions and authorities and decisions in support of those submissions. The Tribunal does not accept that it would have been appropriate to hear the appeal on the papers. There were, during the course of the hearing, significant and helpful exchanges between members of the Tribunal and the counsel engaged. The Tribunal was also given some helpful advice by Mr Cruickshank, Mr Robert Dunn and Dr Leo Molloy.

9. The fines imposed by the Non-Raceday Judicial Committee were significantly reduced by the Tribunal. Messrs Dunn have undoubtedly been put to considerable expense. The circumstances around the prosecution and the two considerations just mentioned have led the Tribunal to the view that some costs award should be made in favour of Mr Robert Dunn and Mr John Dunn. That determination is consistent with the approach explained in detail in the Butcher decision. The RIU will pay costs towards Mr Robert Dunn and Mr John Dunn a single sum of $750. The RIU will make a contribution towards the costs of the JCA in the sum of $750.

DATED this 19th day of June 2018

Murray McKechnie

Chairman

(Signed pursuant to the Fifth Schedule to the New Zealand Rules of Harness Racing)

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