Tribunal Decision (hypothetical)

DECISION OF APPEALS TRIBUNAL

[1] This is an Appeal from a decision of the Judicial Committee at a race meeting held by the Waikato Racing Club at the Te Rapa racecourse on 13 December 2003. In that decision the Judicial Committee declined to grant leave to V J Middeldorp to file an Information seeking a ruling regarding the interpretation of Rule 405(3).

[2] Prior to the hearing on 13 December, Mr Middeldorp had, on 11 October at a Counties Racing Club race meeting held at Counties, filed the same application on behalf of himself and the New Zealand Racehorse Owners Federation (hereinafter referred to as "NZROF"). That application was adjourned by consent to 4 November 2003.

[3] However, before the date of hearing scheduled for 4 November NZROF made a request to withdraw that application and that request was granted. Thus from 4 November 2003 there no longer existed any issue of interpretation of Rule 405(3) between NZROF and Thoroughbred Racing New Zealand (hereinafter referred to as “TRNZ") which required deliberation by the Judicial Control Authority.

[4] Mr V J Middeldorp then personally filed an identical Application in his own name seeking leave to file an Information requiring the interpretation of Rule 405(3). That Application having been declined by the Judicial Committee at a hearing on 13 December 2003, Mr Middeldorp has now filed an appeal against that decision which this Appeal Tribunal must now determine.

[5] At a hearing on 12 January 2004 this Appeal Tribunal heard extensive submissions from both the appellant, Mr Middeldorp and Senior Racecourse Inspector J McKenzie, who appeared on behalf of TRNZ. The Appeal Tribunal at the conclusion of the hearing reserved its decision, there being three issues to be determined which are now formulated.

Has the Appellant a right of appeal from the decision of the Judicial Committee dated 13 December 2003?

[6) Rule 405(3) of the Rules of Racing provides a mechanism for the collection of a levy from owners on the registration of racehorses and its subsequent payment by Thoroughbred Racing New Zealand to NZROF. As a result of apparent differences which arose within the Executive of NZROF, the Board of TRNZ decided not to pay the levies it had collected until those difficulties had been resolved. Mr Middeldorp, a member of the Executive of NZROF, became concerned at this decision and the reasons for it and decided to seek a ruling from a Judicial Committee on the interpretation of Rule 405(3). Mr Middeldorp informed this Appeal Tribunal that his ultimate intention was to file an Information charging the Chief Executive Officer of Thoroughbred Racing New Zealand with a breach of Rule 405(3) by failing to pay the levy to NZROF.

[7] In order to bring the issue before a Judicial Committee, it was necessary for Mr Middeldorp to file an Information because the Rules of Racing provide that all proceedings are to be commenced by way of filing of an Information. Under the Rules of Racing Mr Middeldorp required the leave of the Judicial Committee to file an Information because he was not within that class of persons who could do so as of as Rule 1103(4) provides:

"(a) During a race meeting an information may be filed only by:

(i) A Stipendiary Steward or Racecourse Inspector;

(ii) The Owner, Trainer or the person in charge of the horse or Rider of a horse in a race, against another horse or rider in that race. Such Owner, Trainer, or person or Rider shall prior to the filing of an information lodge with the Registrar a filing fee the amount of which shall be prescribed from time to time by the Board. Provided that the Registrar with whom the information is filed may accept in lieu of such a fee a written undertaking by the information to pay such fee within seven days;

(iii)Any person with the leave of the Judicial Committee."

The first issue for determination is whether there is any right of appeal against a refusal to grant leave to file an Information.

[8] The starting point for this discussion must be the rule which confers the right of appeal against decisions of a Judicial Committee. Rule 1201(3) confers the right of Appeal:

(3) Subject to sub-Rule (1) hereof:

(a) Where on the determination of an information by the Judicial Committee, the Judicial Committee in its decision:

i. Find, or do not find a breach of these Rules proved;

ii. Make an order or decline to make an order; or

iii. Impose any penalty or decline to impose any penalty the informant or the defendant may appeal to the Appeals Tribunal against the decision, finding, order or penalty of the Judicial Committee

(b) The appeal maybe against the findings of the Judicial Committee, and/or the penalty and/or the order or any and in the case of an order for the payment of costs, the appeal may be against the order or the amount of the costs ordered to be paid or both.

(c) No appeal against a finding shall be lodged until the Judicial Committee decision in respect of penalty has been given.

(d) Any party to any decision given, not being a decision of the Judicial Committee, who is aggrieved by such decision given under these Rules, may appeal therefrom to the Appeals Tribunal.

(e) No appeal shall be lodged by the informant who is a Stipendiary Steward or Racecourse Inspector unless the consent of the Board of Thoroughbred Racing or in its absence its nominee has first been obtained."

[9] That Rule is made subject to Rule 1201(1) which specifies certain decisions which cannot be the subject of an appeal. None of those exclusions are relevant to this case. The Rule (1201(3)) conferring the right of appeal prescribes the class of decisions which can be the subject of an appeal and they are decisions which are made on the determination of an Information. In the present instant no Information could be filed in the absence of leave and, thus, as leave to file an Information was declined there was no determination of an Information.

[10] The persons who are given the right of appeal are the informant and the defendant. "Informant" is defined in Rule 105 as meaning "the person by whom an information is filed". As Mr Middeldorp was refused leave to file an Information he never became an informant.

[11] The Court of Appeal in Shotover Gorge Jet Boats Ltd v Jamieson [1987] 1 NZJLR 437 emphasised that the nature of an appeal right will depend on the true construction of the provisions, whether statutory or otherwise, granting the right of appeal. This was reiterated by the Court of Appeal in Naden v Auckland Racing Club [1995] 1NZLR307, 311.

[12] In our view Rule 1201(3) confers a right of appeal in respect of a Judicial committee's determination of an Information but not otherwise. The scheme of rule 1201 is to restrict the right of appeal in respect of decisions of a Judicial committee. In contrast. Rule 1201(3)(d) provides a general and unrestricted right of appeal when the decision is not that of a Judicial Committee.

[13] Prior to the coming into force of the new Rule 1201 in June 1996 a general right of appeal did exist. The previous Rule under the previous Rules of Racing was Rule 346 which was in the following terms: "Any person aggrieved by any decision of the Stewards or Committee or Chairman of the Judicial Committee of a Club or of an official, not being a decision declared by these Rules to be conclusive or final or not subject to appeal, may appeal therefrom to the District Committee."

[14] Under that earlier Rule Mr Middeldorp, aggrieved by a decision of a Judicial Committee, would have a general right of appeal to a District Committee. However, the position now is much more restrictive and the change in the Rule relating to appeals indicates that there has been a clear intention to restrict the right of appeal against decisions of a Judicial Committee.

[l5] Mr Middeldorp has submitted that all decisions of a Judicial Committee are subject to appeal unless specifically excluded by Rule 1201(1) and that Rule 1201(3) merely gives specific examples of decisions which can be the subject of an appeal and is not an exclusive list.

[16] We cannot accept that submission. If the Rules had intended all decisions of a Judicial Committee to be subject to appeal, the general right of appeal which existed under the previous Rules of Racing would have remained. The present Rules confer the right of appeal in respect of particular decisions and define who is able to appeal by specific description and not the general class of "persons aggrieved."

[17] The right of appeal is conferred by s99(zd) of the Racing Act 1971 which provides: "Subject to s99(zk) of this Act, any person properly entitled, by or under the Rules of Racing or the Rules of Harness Racing, to appeal to an Appeals Tribunal may do so."

[I8] The issue is whether Mr Middeldorp is a person properly entitled by or under the Rules of Racing to appeal to this Tribunal. This Appeal Tribunal finds he is not so properly entitled.

[19] We conclude therefore that the decision of the Judicial Committee is not subject to an appeal to this Appeal Tribunal as Mr Middeldorp is not a person who is properly entitled to appeal to this Tribunal under the Rules of Racing.

[20] There being no right of appeal that would be sufficient to dispose of this appeal. There are however other issues which, in deference to the arguments we have heard, we should deal with.

Can an Information seeking an interpretation of the meaning of Rule 405(3) (or charging anyone with a breach of it) be determined by a Race Day Judicial Committee?

[21] Mr Middeldorp sought leave from the Race Day Judicial Committee for an interpretation of Rule 405(3) of the Rules of Racing. Rule 405(3) provides a procedure for TRNZ to collect a levy from owners upon the registration of a racehorse and the subsequent payment of that levy by TRNZ to NZROF. The only parties named in that rule are the Chief Executive of Thoroughbred Racing and New Zealand Race Horse Owners Federation. The application for leave to file an Information was made solely by Mr Middeldorp.

[22] Rule 1103(1) requires all proceedings shall be commenced by a filing of an Information. Rule 1103(4)(a) specifies the individuals who may file an Information. During a race meeting on race day only a Stipendiary Steward or a Racecourse Inspector or the Owner, Trainer or the person in charge of the horse or rider of the horse in a race can file an Information. Rule 1103(4)(a)(iii) provides that "any person with the leave of the Judicial Committee" may file an Information.

[23] Rule 1103(1) provides that the Judicial Committee shall have jurisdiction to hear and determine all proceedings commenced pursuant to the Rules which are not expressly stated by any of the Rules to be within the jurisdiction of any other person or body. Part XI contains a series of rules describing the functions and duties of a Judicial Committee. Rule 1102(2) clearly provides that the functions of a Judicial Committee shall be "from one hour prior to advertised starting time of the first race of any day of a race meeting until after the conclusion of the last proceeding which it commences to deal with on that day, or 30 minutes after the last race run on that day, (whichever is the latter)." Taken in its entirety, the Rules contained in Part XI define the powers of a Judicial Committee as being limited to matters arising on or from a particular day of racing.

[23] Part X of the Rules of Racing makes provision in Rules 1001 to 1011 for offences and breaches.

[24] The appellant Mr Middeldorp is seeking leave to file an Information seeking an interpretation of Rule 405(3). From the whole format of the New Zealand Rules of Racing, quite clearly the powers of a Judicial Committee on race day are limited to dealing with alleged offences which have occurred during the course of a raceday. Such a Judicial Committee only has jurisdiction over matters arising on racedays and does not have the jurisdiction to give a ruling on the interpretation of a particular Rule the breach of which is not an offence, alleged to have been committed on race day.

[25] Consequently, this Appeals Tribunal holds that a Judicial Committee on raceday would not have jurisdiction to grant to the Appellant leave to file an Information seeking an interpretation of Rule 405(3).

[26:| Even if a Judicial Committee did have jurisdiction to grant leave to file the Information in its present form, the Judicial Committee had vested in it a discretion as to whether or not to grant such leave. Again, in deference to the arguments addressed to this Appeals Tribunal, we now deal with the question of the exercise of that discretion assuming that the Judicial Committee did have the power to grant leave for the Information to be filed.

If the Judicial Committee had jurisdiction to grant leave, should it have granted leave in exercise of its discretion?

[27] The Information which the Appellant sought leave to file, seeks an interpretation of Rule 405(3). If, which we do not find, the Judicial Committee had jurisdiction to consider granting leave to file such an Information there are a number of factors which the Judicial Committee would have had to take into account. These factors are:

(a) Rule 405(3) makes provisions for NZTR to receive certain monies and for NZTR to make a payment of a portion of that levy to NZROF. Rule 405(3) contains provisions for a payment by NZTR through its Chief Executive to NZROF.

There is currently, between those parties, no dispute regarding the meaning of the Rule nor that there is or has been a failure to comply. The fact that there is no such dispute, and that the Appellant is a private individual lacking standing must be a substantial factor to take into consideration.

(b) There is no dispute between NZTR and NZROF regarding the interpretation of Rule 405(3). NZTR acknowledges that the Rule requires the Chief Executive to make payment of the levy to NZROF. There being no dispute as to the meaning of the rule thus raises a substantial query as to the necessity for a Judicial Committee to give an interpretation of Rule 405(3) when neither party, identified in Rule 405(3) had or has any dispute as to the meaning of its wording.

[28] Subsequent to the hearing of this Appeal on 12 January 2004, both parties were requested to file, if they so wished, further submissions relating to the omission in the wording of Rule 405(3) which provides that an individual who breaches Rule 405 commits a breach of that Rule, such a provision being included in Rules 403(7), 408(6) and Rules 411(1) and (3). Both parties filed submissions on this issue, which had not been expressly argued during the hearing on 12 January. The additional submissions have been carefully considered by the Appeal Tribunal.

[29] The Appellant has submitted that an interpretation of Rule 405(3) is required so that consideration can be given by the Appellant to alleging that the Chief Executive of NZTR can be charged with a breach of Rule 405(3). Rule 405(3) is contained in Part IV of the Rules of Racing. Part IV contains Rules 401 to 451 and covers a range of Rules dealing with horses, owners, ownership syndicates, approved companies, partnerships, syndications and colours. The general rules as to horses are contained in Rules 401 to 411. Rule 402(6) identifies the individuals who can commit a breach of Rules in Part IV. Rule 403(7), Rule 406(7), Rule 408(6), Rule 409(7) and Rule 411(1) and (3) all specify that any individual who breaches these rules commits a breach of that rule. There is no such provision in respect of Rule 405. Consequently, even if the Chief Executive fails to make payment of the levy to NZROF, then no breach of the rule has been committed and the only remedy of NZROF is confined to the civil jurisdiction to enforce payment.

[30] Taking all matters into account, and in particular the fact that there is no dispute between the two parties specifically referred to in Rule 405(3) as to the interpretation of that Rule, then the Judicial Committee - even if it had jurisdiction to grant leave to file an Information - was justified, in refusing the grant leave to file such an Information. We would have come to the same conclusion.

Conclusion

[31] To summarise the foregoing, this Appeal Tribunal holds that:

[i] The Appellant does not have a right to appeal the decision given by the Judicial Committee on 13 December 2002.

[ii] The Judicial Committee, on race day, did not have jurisdiction to grant leave to the Appellant to file the Information seeking an interpretation of Rule 405(3)

[iii] Even if the Judicial Committee did have jurisdiction to grant leave to file the proposed Information, in exercise of its discretion it was justified in refusing to grant leave for the proposed Information to be filed.

[32] Leave is granted to either party, if they so wish, to file submissions on any question of costs. Such submissions are to be filed within 21 days of this decision.

Dated this 27 day of February 2004