Bray v New Zealand Sports Drug Agency
[2000] NZCA 368
•6 December 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 215/00 |
| BETWEEN | TRENT ANTHONY BRAY |
| Appellant | |
| AND | NEW ZEALAND SPORTS DRUG AGENCY |
| Respondent |
| Hearing: | 29 November 2000 |
| Coram: | Richardson P Keith J Tipping J |
| Appearances: | P H Thorp and P F A Woodhouse for Appellant R J Katz QC and J D Howman for Respondent |
| Judgment: | 6 December 2000 |
| JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P |
The primary issue in this appeal pursuant to leave granted by the High Court concerns the impact of the delay in getting a random sample of urine collected from the appellant, a New Zealand international competitor in swimming and surf lifesaving, to the accredited laboratory in Sydney. It requires consideration of the drug testing regime provided for under the New Zealand Sports Drug Agency Act 1994 and the Sports Drug (Urine Testing) Regulations 1994.
The Board of the New Zealand Sports Drug Agency (the Agency) determined on the basis of the test results and the procedures followed that the appellant had committed a doping infraction. Because we are satisfied that the delay in getting the sample to the laboratory was fatal and that the decision of the District Court at Auckland quashing that determination of the Board must be restored, it is unnecessary to consider other grounds raised by the appellant.
The factual background
On 22 November 1999 an official of the Agency collected out of competition samples from the appellant (and others) at the Philips Aquatic Centre in Mt Albert. The carrier bag containing the samples was delivered to the Agency's premises the next morning, and the appellant's sample was despatched by courier to Sydney on 25 November. It did not arrive at the laboratory until 9 December. Because of the absence of a required Customs declaration the sample was placed in a quarantine area at Sydney Airport, remaining there for two weeks until cleared and delivered to the laboratory.
The laboratory report that was issued following testing of the first part of the sample on 7 January 2000 noted that the sample had been received on 9 December "in good order with the seal intact". The evidence before the District Court was that the Agency froze the sample before sending it; that the sample would not have continued frozen while held for two weeks at Sydney Airport; and that in accordance with their usual practice the laboratory put the sample into its freezer on receipt. The possible effect on the ultimate test result of leaving the sample in an unfrozen state for two weeks was the subject of scientific expert affidavit evidence sought to be admitted on the hearing of the appeal. However, on our conclusions on the interpretation and application of the requirements of the Act and the Regulations in this case, it is unnecessary and inappropriate to consider those difficult matters of scientific assessment.
The laboratory report concluded:
The metabolites of nandrolone were confirmed in the sample using gas chromatography-mass spectrometry (Method NIOC/3c).
The report of the testing of the second part of the sample on 17 January 2000 contained the same finding and on 24 January 2000 the Agency, acting under s16 of the Act, advised Mr Bray that it had determined that he had committed a doping infraction and that it had entered particulars of the same in the Sports Drug Register which it kept in accordance with the provisions of the Act. On the same date, both the New Zealand Swimming Federation Inc. and the Surf Live Saving New Zealand Inc. as the relevant sports bodies were advised of the determination.
On 11 February the appellant appealed to the District Court against the determination of the Board of the Agency that he had committed a doping infraction. In terms of s20(2)(b) the grounds for such an appeal are limited to contending:
(b)In the case of a determination under section 16 of this Act, that ‑
(i)A second testing of the sample did not support the initial test result; or
(ii)The applicable requirements of the regulations relating to the sealing of any container containing the sample, and the recording of information relating to that sample, were not substantially complied with; or
(iii)The sample was not tested by a laboratory; or
(iv)The sample was tampered with by someone other than the competitor or a person authorised by the competitor to oversee any part of the collection or testing of the sample; or
(v)In other respects, the procedures were not substantially in accordance with the regulations.
To facilitate consideration of the appeal, and reflecting the obvious point that the Agency is acting in the interests of those tested as well as those participating in the relevant sports nationally or internationally, s21(6) requires the Agency to furnish a report to the court, before the hearing, of the reasons for the making of the determination and to supply to the court such information or assistance as may be required of it by the court. Given its statutory role and function, the Agency can be expected to place the matter fairly and fully before the court and not to take a confrontational or adversarial stance against appellants. In that regard the District Court Judge recorded that the assistance given by Mr Howman, counsel for the Agency, went well beyond and above the statutory obligations.
The District Court judgment
Regulation 30 is the immediately relevant provision directed to the sending of the sample to the laboratory. It is headed "Despatch by Agency of samples to laboratory". Clause (1) states:
As soon as practicable after the receipt at the Agency of any carrier bag delivered or sent to it under regulation 29, a drug testing official at the Agency shall --
(a)Remove the sealed security transit containers and the forms that relate to them from the carrier bag in which they arrived at the Agency; and
(b)Put the sealed security transit containers into a carrier bag; and
(c)Complete and sign form 5 in respect of the containers in the bag; and
(d)Put form 5 into the bag that contains the containers to which it relates; and
(e)Put copies of form 2 that have no information that might identify a competitor into the bag that contains the containers to which they relate; and
(f)Send the bag by a secure means to a laboratory chosen from the list maintained under section 6(1)(b) of the Act.
Regulation 31 empowers the sending of the samples directly to the laboratory from the sample collection station, the only possible relevant difference in the language employed being the omission of the opening words of reg 30(1), "As soon as practicable after receipt at the Agency" of the carrier bag. That difference cannot justify ignoring or reading down those words where, as here, reg 30 is the applicable provision, whatever the interpretation consequences of that difference where the sample is sent under reg 31.
The point taken before the District Court was that there had been inordinate and inexcusable delay between the taking of the sample from the appellant on 22 November 1999 and advice of the first test result contrary, amongst other reasons, "to the implicit requirement of the Regulations when read as a whole that there be no delay in completing the procedures required by the Regulations".
Judge Joyce noted that reg 30 requires action by the Agency as soon as practicable on receipt of such a carrier bag and that the samples were despatched by courier to Sydney on 25 November but were not received by the laboratory until 9 December because, it seems, the Australian Customs requirement was overlooked by the courier company through the agency of which the Agency sent the samples. The District Court Judge continued:
In present context send must surely carry the dictionary meaning of cause to be conveyed or transported ... by an intermediary to a ... place for a particular purpose: see again the New Shorter Oxford. NZSDA must be accountable for the efficacy and efficiency of that transportation. Albeit a little indirectly, the Regulations convey a sense of urgency here - and that does not surprise. It is not so much a case of blaming the Agency for the hold up in Customs as of considering its implications. The report from Sydney Customs would indicate that the carrier bag with its contents was left in a "quarantine cage" for around a fortnight. [original emphasis]
After considering and rejecting the argument that there had been undue delay at the laboratory in the carrying out of the analysis, Judge Joyce concluded:
But that still leaves the issue of the delay in the arrival of the samples at the laboratory: this given that they were to be sent (in the sense of got) there as soon as was practicable.
All the signs are that if they had gone off to Sydney with the totality of the requisite documentation they would have gone virtually immediately from Mascot Airport to the laboratory. All of that appears to have been entirely practicable. But for lack of a declaration, they in fact languished in a "cage" at the airport for a fortnight. Conscious again of issues of integrity, I hold that the sending of the samples to the laboratory was not accomplished substantially in accordance with the Regulations.
The High Court judgment
The Full Court (Paterson J and Gendall J) took a different view of the requirements of the regulatory regime. The Agency's requirement was to send the sample as soon as practicable. Referring to the heading of reg 30, they said:
[44] ... In our view, "despatch" does not include a connotation of receipt. Nor does "send" in its normal and usual meaning include such a connotation. The interpretation of each enactment depends upon its own terms and context. In our view, there is nothing in these Regulations to interpret the provisions of reg 30 as requiring the Agency to ensure that there was no delay during delivery. This is a case where the laboratory certified that the sample arrived with the seal intact and that the "sample was received in good order".
And continued:
[45] In the District Court, Mr Bray as appellant had the onus of establishing that the determination should not have been made. No evidence was adduced on behalf of Mr Bray to indicate that the delay in any way was likely to cause a deterioration in the sample. ...
[46] In a case where there was no criticism of the actions taken by the Agency, we do not see that the two week delay in delivery is a matter which makes the procedures not substantially in accordance with the Regulations. The Act is replete with time limits as Mr Bray's counsel pointed out. If a time limit between despatch and receipt was important in this case, the Act could have specified accordingly. The laboratory certified that the sample arrived in good condition. Mr Bray did not suffer any prejudice or injustice because of the delay.
Then referring to the absence of an express requirement in reg 31 that the sample taken by the drug control official be sent "as soon as practicable" to the laboratory, they considered it difficult to see why there would be any different obligation on the Agency in this case. The words "as soon as practicable" therefore assumed less importance when used as an aid to construe reg 30.
They then summarised their reasoning in this way:
[48] In summary, there are several reasons why we are persuaded that the delay was not an impediment to the registration of the doping infraction. First, we do not interpret "send" as meaning receipt; secondly, there are no time limits in the Regulations as to when a sample is to be received by the laboratory; thirdly, if the procedure under reg 31 had been utilised, the sample would not have to be sent "as soon as practicable"; fourthly, the laboratory certified that the "sample was received in good order with the seal intact"; fifthly, there was no suggestion of tampering; sixthly, there was no evidence that the delay could have in any way led to a deterioration in the sample; lastly, as a consequence of these factors, we do not see that the procedures were not substantially in accordance with the Regulations. We have therefore come to the conclusion that we find for the Agency on this point.
Discussion and conclusions
We are unable to agree with the High Court's reasoning and conclusions. For reasons which we can express quite shortly we are satisfied that the scheme and language of the Act and the Regulations compel the conclusion that the sample must be sent to and arrive at the laboratory as soon as practicable after it is provided and received at the Agency. In the event of our reaching that conclusion, Mr Katz accepted, rightly in our view, that on the District Court's findings of fact he could not challenge the conclusion that in this case that requirement was not met. As will be apparent, too, the legal enquiry calls for an objective assessment of the requirements of the Act and Regulations and no questions of blame or prejudice arise.
Section 10 enables the Agency to "require a competitor to provide a sample for analysis in the manner provided for by regulations for the purpose of detecting the presence or otherwise of a scheduled drug or doping method". And s11 requires that "a sample provided by a competitor shall be dealt with substantially in accordance with the requirements of the regulations". The corollary under s16(2)(e) is that, where the doping tests are positive and the sealing, recording and non‑tampering requirements are satisfied, the Board of the Agency may determine that a doping infraction has not been committed only if it is satisfied that "in other respects, the procedures were not substantially in accordance with the regulations". Again, Mr Katz accepts, and again rightly in our view, that in context s16(2)(e) does not apply so as to diminish any need under reg 30 to get the sample to the laboratory "as soon as practicable" or preclude an immediately affirmative answer to the parallel provisions of the appeal section, s20(2)(b).
Explicitly in s12 and implicitly throughout the Act the sole purpose of requesting and collecting samples is "to enable the testing of the sample to determine the presence or otherwise of scheduled drugs or doping methods". Unsurprisingly, the Act goes on to assume that that necessarily involves arranging for the transportation of the sample to an accredited laboratory for testing there. Thus, under Part IV relating to testing by and for foreign organisations, s25(1)(c) empowers the Agency by contract to "Arrange for the secure transport of the samples to a laboratory" and s26(2) goes on to provide for the Agency to determine whether the procedures carried out by the other body were substantially in accordance with the Act and Regulations in respect of "(f) The transportation of samples to a laboratory". Further, the general regulation‑making power authorises the making of regulations, "prescribing the means of identification and attestation of samples and their transportation to laboratories" (s31(1)(d)).
The other relevant feature of the Act and the Regulations is the emphasis on the expeditious performance of the steps involved. As the High Court said, the Act is replete with time limits. Even at the appeal stage the District Court is enjoined to "avoid unnecessary delay" (s21(9)(a)). That emphasis reflects the public policy concern that, in the interests of those tested, those they may be competing against before the test results are known, and the wider public interest in encouraging drug‑free sport, the processes under the sports drug testing regime should be carried out without any undue delay. The Agency's functions link to the International Olympic Committee (s6) and the requirement under the International Olympic Committee Medical Code, para 4.2 is that "The courier shall take the sealed transport containers to the doping control laboratory without undue delay."
We turn to reg 30. It is headed "Despatch by Agency of samples to laboratory". It is despatch to the laboratory. Then in cl 1(f) the expression is "Send ... to a laboratory". That can only sensibly point to the process of delivering the sample to the chosen laboratory. Reference to any standard dictionary will confirm that "send" may be used in various senses and the particular meaning depends on the context in which the word appears. Where, as here, the context links the sending to a particular destination and without any qualification as to the means to be employed, "send ... to" must in our view be given its established meaning of to cause (the sample) to be conveyed to the destination, rather than simply to start it on its way.
That usage and construction also accords with the other provisions to which we have referred in paras [19] to [21] and with the obvious statutory purpose that the sample should be delivered to the laboratory as soon as practicable to enable testing to take place there. In that regard Mr Katz accepted that a statutory overlay requirement of due expedition would necessarily apply to the time taken between despatch of the sample by the Agency and its arrival at the laboratory; and so a sample which was misplaced on route for say a year could not then be tested. Clearly there cannot sensibly be two different promptness standards applying at different stages in the overall process. In our view the shorter answer is that reg 30, consistently with its function under the statutory regime, requires that the sample be sent, in the sense of causing it to be conveyed to its destination, as soon as practicable.
Result
For the reasons given the appeal is allowed and the order made in the District Court quashing the determination of the Board of the Agency is restored. If any questions of costs arise counsel may submit memoranda.
Solicitors
Craig Griffin and Lord, Auckland, for appellant
Davenports, Takapuna, for respondent
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