Green v Racing Integrity Unit Limited - [2013] NZHC 1137

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-6446 [2013] NZHC 1137

BETWEEN JOHN PATRICK GREEN AND BRIAN HUGHES
First Applicants

ANDBARRY RATTRAY AS TRUSTEE OF THE RATTRAY FAMILY TRUST, WAYNE MCLAUGHLIN AND ESTATE OF MRS W MCLAUGHLIN
Second Applicants

ANDRACING INTEGRITY UNIT LIMITED First Respondent

ANDHARNESS RACING NEW ZEALAND INC
Second Respondent

ANDJUDICIAL CONTROL AUTHORITY FOR RACING
Third Respondent

Hearing: 18-19 March 2013

Counsel: M Fisher and L Hui for Applicants
C A McVeigh QC and B Hawes for Respondents

Judgment: 15 May 2013

JUDGMENT OF SIMON FRANCE J

GREEN AND HUGHES V RACING INTEGRITY UNIT LIMITED HC AK CIV 2012-404-6446 [15 May 2013]

Table of Contents

Paragraph No.

Introduction  [1] Grounds of review  [6]
The statutory scheme  [12] Issue one – the legality of Rule 1104(3)(c) of the
Harness Racing Rules  [16]

(a) The establishment of the Racing Integrity Unit [22]

(b) The applicants’ case addressed [29]

Issue two – does the fact that there is no other laboratory which can test the reserve sample mean a charge should
not have been brought? [42]

(a) A new laboratory is approved [43]

(b) Is there a right to have a reserve sample tested? [52]

Issue three – did industry participants have a legitimate expectation to be consulted before new testing procedures
were used? [64]

(a) What is required to establish a legitimate
expectation? [66]

(b) The liaison committee [68]

(c) Did industry participants have a legitimate
expectation? [82] Issue four – an invalid decision to prosecute? [102] Conclusion [109]

Introduction

[1] Rule 1004(1) of the Harness Racing Rules of New Zealand provides:

A horse shall be presented for a race free of prohibited substances.

[2] On 2 June 2012, a pacing filly called Delightful Christian won a prestigious and valuable harness horse race. In accordance with standard practice, a urine sample was taken after the race and sent for testing. That testing revealed the presence of arsenic in the horse’s system. A charge has been laid under the Harness Racing Rules alleging that the horse raced with a prohibited substance in its system. If proven, disqualification of the horse is mandatory. If that happens the horse will lose the race, and the connections will lose the prize money. A further consequence is that the boost to the breeding value of the horse which usually accompanies such a win will not occur.

[3] There seems little doubt that the source of the arsenic detected in Delightful Christian’s urine was a commonly used therapeutic compound called Caco Iron Copper. It contains arsenic. On the present occasion, Caco Iron Copper was administered to Delightful Christian a day prior to the race by an experienced equine veterinarian. The veterinarian has deposed that it is a treatment he has used in a similar way for 30 years. The product used in this way has never previously led to a positive test result.

[4] It seems the reason a positive result was returned on this occasion, and inferentially not detected on earlier occasions,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Green v Racing Integrity Unit Limited

Details

AGLC: Green v Racing Integrity Unit Limited [2013] NZHC 1137
Case: [2013] NZHC 1137
Decision Date: 15 May 2013

CaseChat Overview and Summary

In Green v Racing Integrity Unit Limited, the applicants, who were the owners and trainers of a horse called Delightful Christian, sought to set aside a decision to lay a charge alleging a breach of a rule that requires horses to be presented for a race free of prohibited substances. The applicants argued that the rule under which the charge was laid was invalid, that the decision to approve an overseas laboratory as a testing facility was flawed, that the industry participants had a legitimate expectation to be consulted before new testing procedures were used, and that the decision to charge was unreasonable. The High Court of New Zealand rejected all the arguments and dismissed the proceedings. The Court held that the rule in question was valid and that there was no obligation on the decision maker to consider the overall economic well-being of the industry when taking an individual integrity decision. The Court also held that the approval of the overseas laboratory was not subject to review and that there was no legitimate expectation that industry participants would be consulted before new testing procedures were used. Finally, the Court held that the decision to charge was reasonable and that the applicants' real complaint was with the mandatory disqualification rule, which was not challenged.

Orders