Green v Racing Integrity Unit Ltd
[2014] NZCA 133
•9 April 2014 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA389/2013 [2014] NZCA 133 |
| BETWEEN | JOHN PATRICK GREEN, BRIAN HUGHES, BARRY RATTRAY, WAYNE MCLAUGHLIN AND THE ESTATE OF MRS W MCLAUGHLIN |
| AND | RACING INTEGRITY UNIT LIMITED |
| AND | HARNESS RACING NEW ZEALAND INCORPORATED |
| Hearing: | 26 February 2014 |
Court: | O’Regan P, Harrison and Wild JJ |
Counsel: | M J Fisher and L Hui for Appellants |
Judgment: | 9 April 2014 at 11.00 am |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe appellants are ordered to pay the respondents one set of costs on a standard appeal on a band B basis in this Court and usual disbursements. We certify for two counsel.
____________________________________________________________________
REASONS OF THE COURT
(Given by Harrison J)
Introduction
Delightful Christian is what is called a pacing filly. She participates successfully in harness horse racing. Following her victory in a prestigious race, samples of her urine were tested by a laboratory in Hong Kong at the request of the Racing Integrity Unit (the RIU). A positive result was returned for arsenic above the permitted threshold level. Harness Racing New Zealand (HRNZ) has decided to lay a charge with the Judicial Control Authority alleging that the horse raced with a prohibited substance in her system. The charge is yet to be heard but, if it is proved, disqualification is a mandatory penalty.
Delightful Christian’s trainers, John Green and Brian Hughes, and her owners, the Rattray Family Trust, (collectively “the connections”), applied to the High Court to judicially review the separate decisions by HRNZ and the RIU to approve the Hong Kong laboratory for testing and to lay the charge. Among their grounds of challenge were that (1) the HRNZ rule under which the charge was laid was invalid; (2) they had a legitimate expectation that HRNZ and the RIU would consult them before approving the Hong Kong laboratory to conduct the tests; (3) in deciding to lay the information, the RIU failed to take into account relevant considerations; and (4) the RIU acted unreasonably and improperly fettered its discretion to prosecute.
After a defended hearing, Simon France J delivered a comprehensive judgment dismissing the application.[1] He was not satisfied that any of the four grounds of challenge were made out. The connections now appeal his decision but limited to the legitimate expectation and, to a lesser extent, fettered discretion grounds. As a result, it is unnecessary for us to revisit Simon France J’s careful and correct analysis of the validity of the HRNZ rules which occupied a significant part of his judgment.
[1]Green v Racing Integrity Unit Ltd [2013] NZHC 1137.
We record that the connections’ appeal falls for determination according to settled principles of administrative law to be applied to undisputed facts. The material facts are within a small compass and are helpfully recited and explained in affidavits filed by HRNZ and the RIU. By contrast much of the evidence adduced by the connections is plainly inadmissible; for example, the affidavits filed in reply are largely in the nature of submissions or argument.
Statutory scheme
Simon France J summarised the broad structure of the statutory scheme governing horse and dog racing in New Zealand as follows:
[12] Racing in New Zealand occurs in three formats, each of which is called a “Code” – thoroughbred horses (the gallops), harness horses (the trots) and greyhounds (the dogs). The industry is governed by the Racing Act 2003 (the Act).
[13] The Act recognises the separate governing body of each Code and requires each organisation to make its own rules for the conduct of its version of the sport. The Act identifies various topics the Rules might cover, but these are not exclusive. The listed topics are described in the Act as not limiting the general power to make rules, and conclude with the power to provide for:[2]
any other matters relating to the conduct of races and racing that the racing code thinks fit.
[14] Sitting above the three Codes is the New Zealand Racing Board. Its task is to promote racing and maximise profits for the long term benefit of New Zealand racing. The income garnered from betting on any of the Codes goes to the Racing Board, which has the task of distributing that money to the Codes in a way that it considers will promote the racing industry.
[2]Racing Act 2003, s 29(2).
The Racing Act also provides for an internal racing judicial system.[3] The Judicial Control Authority has, as its name suggests, the ultimate role with a range of functions including the appointment of judicial and appeal committees.[4] Breaches of HRNZ rules are enforceable by stipendiary stewards and race course inspectors who are responsible for monitoring compliance. Simon France J described them as “the police officers of the sport”.[5] Significantly, they alone have the power to lay informations for non‑race day breaches. Such an information can only be laid with the prior permission of the RIU operations manager.[6] The RIU has entered into service agreements with each of the three racing codes to exercise and perform the powers and duties of stipendiary stewards, race course inspectors and investigators.
Legitimate expectation
(a) Facts
[3]Racing Act, ss 36–41 and Sch 3.
[4]Racing Act, s 37(2).
[5]At [16].
[6]New Zealand Rules of Harness Racing, r 1103(4)(c).
The facts essential to the connections’ claim of breach of a legitimate expectation that they would be consulted before the authorities approved a new regime for testing can be stated shortly.
On 1 May 2012 HRNZ approved a laboratory operated by the Hong Kong Jockey Club and four Australian laboratories to analyse samples of equine urine for the presence of prohibited substances including arsenic. HRNZ did not consult or liaise with the New Zealand Equine Veterinary Association (NZEVA), the New Zealand Harness Racing Trainers and Drivers Association (NZHRTDA) or industry participants. Nor did HRNZ previously have the capacity to test for arsenic even though the substance had been banned above a certain threshold for many years.
On 1 June 2012 Ivan Bridge, a licensed veterinary surgeon who was acting on the connections’ instructions, administered 30 millilitres of Caco-Iron-Copper to Delightful Christian. Caco-Iron-Copper is a therapeutic remedy designed to maintain the health and wellbeing of race horses while in training. The next day, 2 June 2012, Delightful Christian placed first in the Group 1 Diamond Mobile Pace for two-year-old fillies at the Harness Jewels Meeting at Cambridge Raceway. Messrs Green and Hughes, as her trainers, will receive 10 per cent of the stake payable under the rules for first place, being $75,000, if the horse is entitled to retain its first placing; and the owners will receive the balance of the stake after meeting other expenses.
Immediately after the race a routine sample of Delightful Christian’s urine was taken for analysis. In late June 2012 and again in early July the racing laboratory operated by the Hong Kong Jockey Club issued test reports confirming that the mass concentration of total arsenic in the sample was 0.47 milligrams per litre. The permitted threshold of arsenic is 0.30 milligrams per litre as prescribed by HRNZ’s prohibited substance regulations.[7]
[7]Harness Racing New Zealand Regulations 1996 at “Prohibited Substance”, [2(b)].
In August 2012 the RIU’s operations manager authorised a race course inspector to file an information seeking a ruling on Delightful Christian’s disqualification, alleging that the horse had been taken to a race course for the purpose of engaging in a race and was found to have administered to or ingested by it a prohibited substance. As noted, the HRNZ rules require the horse be disqualified if the charge is proved.
(b) The connections’ claim
Against this background, the connections plead they had a legitimate expectation that HRNZ or RIU would consult or liaise with NZEVA, NZHRTDA or industry participants about either: (1) the appointment and approval of laboratories for the purposes of the HRNZ rules; or (2) any proposal or decision to cause urine samples taken from race horses to be subjected to a testing regime relating to arsenic that had not previously been undertaken or employed.
It was not in dispute in the High Court or before us that the connections must establish three elements if they are to succeed on a claim for breach of a legitimate expectation, in the administrative law context: (1) a promise or commitment, in this case by the adoption of a settled practice or policy, to act in a certain way; (2) their legitimate or reasonable reliance on the promise or commitment; and (3) the appropriate remedy if any that should be granted.
We accept that success at the first step – establishing the existence and content of the expectation pleaded – might not come in the form of an explicit promise. A promise can be implied from past practice or policy.[8] But where the expectation is in the form of a practice or policy, as alleged here, its existence and content must equally be established to the level of a commitment[9] or undertaking.[10] The existence and content of such a practice or policy must be both unambiguous,[11] and settled in the sense that it is regular and well established.[12]
[8]New Zealand Association for Migration and Investment Inc v Attorney-General [2006] NZAR 45 (HC) at [142], Vea v Minister of Immigration [2002] NZAR 171 (HC), Nicholls v Health and Disability Commissioner [1997] NZAR (HC) at 369–370.
[9]Comptroller of Customs v Terminals (NZ) Ltd [2012] NZCA 598, [2014] 2 NZLR 137 at [125].
[10]Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346 (PC) at 351J.
[11]Comptroller, above n 9, at [125].
[12]Comptroller, above n 9, at [123] and [125], Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL) at 401 (“regular practice”, “so well established”), R (Bhatt Murphy) v The Independent Assessor [2008] EWCA Civ 755 at [29], [33] and [42] (“established”), and at [46] (“pressing and focussed”).
We also emphasise the importance of the second element – establishing reasonable reliance on the unambiguous and settled policy or practice – to a successful claim of a legitimate expectation.[13] The presence of reliance (that is, reasonable reliance) helps distinguish a legitimate expectation from one which is a mere hope that a course of action will be pursued.[14] It is difficult to see how a party could have a legitimate expectation without relying on the undertaking[15] (whether by a promise or otherwise), given that its foundation is that a public authority should be bound by its undertakings when it “has promised to follow a certain procedure, [because] it is in the interest of good administration that it should act fairly and should implement its promise”.[16]
[13]Comptroller, above n 9, at [123]–[124].
[14]Comptroller, above n 9, at [124].
[15]Talley’s Fisheries Ltd v Cullen HC Wellington CP287/00, 31 January 2002 at 48.
[16]Attorney-General of Hong Kong, above n 10, at 351H–J. See also Council of Civil Service Unions, above n 12, at 401.This justification is of course subject to the qualifications that (1) keeping its promise cannot interfere with any statutory duty to do otherwise: ibid, at 351H; and (2) similarly, a legitimate expectation cannot trump the operation of a “satisfactory reason” for departure from it: New Zealand Maori Council v Attorney-General [1994] 1 NZLR 513 (PC) at 525.
The connections say their own expectation arose from a number of factors. First, they say that in exercising its powers, carrying out its functions and performing its duties conferred or imposed by or derived under the Racing Act and consistently with its statement of intent, HRNZ is required to:
(a)develop and adopt policies conducive to the economic wellbeing of people who and organisations which derive their livelihood from harness racing;
(b)enhance communication and support provided to industry participants;
(c)ensure the highest standards of integrity are maintained at all levels within the industry;
(d)further the aims and objectives of the International Federation of Horse Racing Authorities (the IFHRA) including having analytical laboratories in New Zealand and preventing and deterring infringements of the rules of harness racing; and
(e)make, maintain and enforce certain rules.
Second, in carrying out its functions HRNZ has for over 20 years consulted with the NZEVA relating to the use of legitimate therapeutic substances in race horses, withholding times for the use of the substances, improvements or changes in testing all methods, and perfecting the use of withholding times for legitimate therapeutic substances.
Third, to the knowledge of the connections, NZEVA and industry participants, Caco-Iron-Copper has for over 30 years been one of the most commonly administered therapeutic remedies for maintaining the health and wellbeing of race horses while they are in training; there has been no withholding time as such for Caco-Iron-Copper but it was not to be administered on race day; and not one irregular test for arsenic has been produced over the 30-year period. Furthermore, Caco-Iron-Copper contains arsenic which, whether in its organic or inorganic forms, is not capable of enhancing or advantaging race performance by altering the speed, stamina, courage or conduct of the horse.
Fourth, unknown to the connections, NZHRTDA or NZEVA, the racing laboratory used by HRNZ had never tested for arsenic in equine urine and was not accredited or validated to test for arsenic in equine urine.
Finally, in breach of their legitimate expectation, HRNZ and RIU induced the connections to believe it would be safe to cause 30 millilitres of Caco-Iron-Copper to be administered to Delightful Christian on 1 June 2012 without creating a risk of contravention of the prohibited substance regulations, and both bodies have acted contrary to HRNZ’s obligation to develop and adopt policies conducive to the connections’ economic wellbeing as industry participants.
(c) High Court
Simon France J found that the connections’ claim for breach of a legitimate expectation failed at all three stages. At the first or threshold stage, he was not satisfied that the evidence supported the existence of a practice or policy giving rise to the connections’ legitimate expectation of consultation or liaison about any proposal or decision to cause urine samples taken from race horses to be subjected to a testing regime for arsenic which had not previously been undertaken or employed.[17]
[17]At [82]–[97].
There is particular force in Simon France J’s observations that:
[11] It is also relevant to the following discussion to note that if it is a prohibited substance, it has been so for a considerable period of time. This is not a case of a change in thinking about arsenic and its effects, or a change in the prohibited substances rules. The positive test is a positive test for a substance that has been prohibited for many years.
…
[73] Before turning to the respondents’ evidence, I observe that if the applicants’ evidence is taken at its highest, then to outside eyes and in this modern day approach to drug detection, the harness authorities appear to have placed themselves in quite an unexpected situation. It is counter‑intuitive to hear that industry participants have an expectation of being told before authorities use better drug detection equipment, or start testing for a drug that is already prohibited. Perhaps not surprisingly therefore, the respondents’ understanding of the position is somewhat different.
(Footnote omitted.)
The Judge concluded that, even if the connections had satisfied the first stage, there was no evidence of reliance.[18] And in any event relief was unlikely to be granted because it would allow a horse to maintain its first place even though it had won while racing with a prohibited substance.[19]
[18]At [98]–[100].
[19]At [101].
In reaching his conclusion Simon France J carefully surveyed all of the evidence upon which the connections relied. In particular, the Judge found that:
(a)minutes of liaison committee meetings of the codes and the special interest group of veterinarians who work within the racing industry did not support the alleged policy or practice to the level of a commitment – noting that subjects such as drugs, prohibited substances and opinions on the drugs and withholding times had been discussed but nothing more;[20]
(b)NZEVA’s correspondence and statement to such a meeting in August 2008 similarly did not support the alleged commitment;[21]
(c)the two examples (heptaminol and aminorex) given by the connections of a protocol that had been followed did not assist as both involved proscribing something previously permitted;[22] and
(d)a decision to start testing for an already prohibited drug could not be likened to changing the classification of a substance from permitted to prohibited.[23]
(d) Analysis
[20]At [84].
[21]At [85]–[86].
[22]At [90]–[93].
[23]At [95]–[96].
Mr Fisher challenged each of these findings. He referred extensively to minutes of meetings of a liaison committee of representatives. Like Simon France J, we accept that the minutes confirm a constant pattern of dialogue on subjects such as changes of opinion about the effect of a drug; technological advances which may increase forensic capability and require changes to withholding times; and also an informal commitment that a “lead in period” would proceed any change in the prohibited substance rules or in testing or methods in order to allow veterinarians reasonable time to change their methods.[24] But the connections must establish much more if they are to succeed.
[24]At [68]–[72].
In this regard Mr Fisher also referred to the agreement of the International Federation of Horse Racing Authorities to the effect that giving forewarnings for new tests is regarded as best international practice in horse racing. We simply note that the harness racing code is not a signatory to the agreement. Of the three codes, only the thoroughbred racing code has signed. And even if the harness racing code had signed on, the practice relied on by the connections contained within the agreement is expressly stated to be one which horseracing authorities may implement at their discretion. The agreement does not assist.
Mr Fisher relied particularly on the following minutes of liaison committee meetings:
(1)14 October 2003. An item from Dr Geoff Beresford, the official analyst, related to prohibited substances. Dr Beresford expressed concern about a progressive change in the interpretation of what falls within or outside a prohibited substance. There were differences between the Australian and European approaches. The meeting confirmed that heptaminol is considered a drug and is banned for use by the harness codes in Australia and New Zealand. This narrative was no more than a discussion about prohibited substances;
(2)7 September 2005. A discussion is recorded on the need for a list of exemptions for prohibited substances which did not affect speed, stamina or courage – substances which occurred naturally in the horse. A veterinarian, Dr Grierson, was asked to consider whether such a list could be compiled together with suggested withholding times. Again this was nothing more than a discussion of the type to be expected at such meetings;
(3)29 November 2005. Under general business, there is a brief reference to two new drugs which were being supplied in New Zealand with which the attendees were unfamiliar. This reference is of no assistance here;
(4)22 March 2007. NZEVA representatives are reported as expressing concern about poor communication from the codes of rule changes particularly those relating to prohibited substances. A HRNZ representative acknowledged this complaint and undertook to improve communications and in particular to include NZEVA in future rules consultation processes. A collective view was recorded that an industry perception that New Zealand was lagging internationally with its testing facilities for prohibited substances was wrong. It was agreed that the codes should be provided with an updated publication regarding new testing equipment and the testing undertaken. There was also discussion about a variety of prohibited substances which may potentially be used inappropriately within the industry. This document was the only one to which we were referred that might possibly support the connections’ case. But, when read in context, this reference to publications about new equipment and testing was plainly designed to reassure industry participants that the New Zealand authorities were keeping up with overseas developments – not to warn of changes in testing equipment which might increase the prospects of detection of rule infringements;
(5)26 August 2008. It was agreed that, where a veterinarian prescribes any form of medication, the product should be labelled with instructions for the prescribed dosage and any withholding time from the last administration until race time. Also, the official analyst provided an update on laboratory issues and testing developments. HRNZ’s laboratory was under pressure because of an increased level of testing being undertaken. This was simply a narrative of agreements and testing developments;
(6)8 December 2009. A concern was raised about positive overseas test results for aminorex, a prohibited substance which morphed from levamisole, which was permitted by an exemption in the prohibited substance rules. It was noted that aminorex was not on withholding times lists. Subsequently the exemption was removed. It was also agreed that notice be given of these changes. HRNZ’s subsequent notice stated aminorex was a prohibited substance; that its presence on race day was not allowed; and that race day samples would be tested. However, as already noted, this evidence does not assist.[25] The notified change was of a prohibition on using a substance which was previously permitted – a wholly different situation to the enforcement of a long standing rule prohibiting the presence of arsenic on race day. In any event, on its own the agreement to notify does not come close to establishing an unambiguous and settled policy or practice as required of the connections;
(7)15 September 2011. It was agreed that NZEVA would reissue withholding times for prohibited substances within the one day withholding period and there was a discussion of some new substances.
[25]At [24(c)] of this judgment.
Mr Fisher referred to other documents. One was a HRNZ bulletin on drug testing in New Zealand racing prepared for a joint liaison committee meeting on 19 August 2004. However, it did no more than reinforce HRNZ’s commitment to operating a quality racing laboratory, sufficient to achieve accreditation to IFHRA standards, and compared the relative costs and service available by using a laboratory situated outside New Zealand to test samples, concluding that there was no identifiable saving.
Mr Fisher referred also to a notice issued by HRNZ on 8 November 2004 of some confusion about notifying the introduction of testing for heptaminol which had recently been classified as a prohibited substance. The same bulletin gave reinforced notice that it would be a breach of the HRNZ rules to administer such a prohibited substance. This document does not assist. At best it was evidence of HRNZ’s acknowledgement about confusion following its recent classification of a drug as a prohibited substance – but far from a commitment to advise of new testing procedures adopted for a long prohibited substance.
Finally, Mr Fisher referred to a document issued by NZEVA as a guide for its members in October 2011 on recommended withholding times for prohibited substances. Its purpose was to ensure that, when a horse was being supervised by a veterinarian, owners and trainers had confidence to race their horses with minimal risk of a positive test. The document expressly recorded that the list was neither endorsed by the thoroughbred code nor HRNZ as a recommendation for any horse treated prior to racing. Moreover, it did not refer to Caco-Iron-Copper and is of no assistance.
Our own assessment of the relevant minutes and other material confirms Simon France J’s conclusion that the documentary evidence does not disclose an established policy or practice of the type alleged.[26] Whether viewed separately or together, the documents fall well short of satisfying the high threshold required to establish an unambiguous and settled commitment by HRNZ to act in a certain way. Mr Fisher’s submission was that:
liaison committee meetings are supportive of the practice in the sense that they disclose an open and constructive dialogue on all matters concerning the control of prohibited substances, including new testing and technologies and examples of the practice and operation in relation to other substances.
[26]At [84]–[94].
Evidence of an open and constructive dialogue between parties does not suffice in this context. Considerably more is required. The connections’ claim for the existence of a legitimate expectation falls at the first hurdle.
In any event we accept HRNZ’s evidence, which Mr McVeigh emphasised, that its representation or holding out of a commitment or promise of the type alleged would run counter to its established policy of not advising industry participants of the testing capabilities of any approved laboratory. As Simon France J noted,[27] the purpose behind the policy is that controlling the use of prohibited substances is critical to the sport’s integrity. It would be an odd expectation on the connections’ part that HRNZ would commit to warning them of its enhanced ability to detect rules infringements.
[27]At [74].
However, even if the connections had established the necessary commitment, there is no evidence of an inducement or reliance. Again we agree with Simon France J. The connections claimed that by its decisions (1) to approve the Hong Kong racing laboratory under the HRNZ rules to analyse samples of equine urine for the presence of prohibited substances; and (2) to have the samples subjected to a testing regime relating to arsenic that had not previously been undertaken without consulting industry participants, HRNZ:
induced [the connections] to believe that it would be safe to cause 30 millilitres of Caco-Iron-Copper to be administered to Delightful Christian on 1 June 2012 and that such administration would not create a risk of contravention of the prohibited substance regulations of HRNZ.
This claim suffers from two defects, each of which is fatal. First, the owners did not know of HRNZ’s decision to accredit the Hong Kong laboratory so its decision could not have been of operative effect. Simon France J made the obvious point that announcement or advice of this decision to use the Hong Kong laboratory could not have led to a change in how Caco-Iron-Copper was administered.[28]
[28]At [99].
Mr Fisher relied on Dr Bridge’s assertion that he “would not have administered Caco-Iron-Copper to Delightful Christian in the circumstances that [he] did”. That statement is meaningless and uninformative and, when read in conjunction with Dr Bridge’s earlier statement that he knew administration of the substance “would not carry a risk of a breach of the prohibited substance rules”, contradicts any suggestion of reliance. Dr Bridge was saying that he would not have acted differently even if he knew of the Hong Kong laboratory’s accreditation because he did not believe that administration of Caco-Iron-Copper carried a risk of breaching the rules.
Second, Dr Bridge says he was never “conscious that Caco-Iron-Copper contained arsenic”. He assumed in retrospect that he would have known given its clear marking on the label. But when interviewed by Barry Kitto, an experienced racecourse inspector employed by the RIU, Dr Bridge admitted he was unaware Caco-Iron-Copper contained arsenic. The connections do not and could assert that HRNZ owed them a duty to advise that Caco-Iron-Copper contained arsenic. As Dr Bridge did not know that Caco-Iron-Copper contained arsenic, his knowledge that HRNZ had commissioned a laboratory which could detect arsenic would have made no difference to his practice.
Mr Fisher attempted to overcome this evidential obstacle by submitting that, while Dr Bridge may not have relied on the HRNZ and RIU’s alleged commitment, the connections placed a general reliance on the integrity of the testing regime – for example, the withholding times list. But reliance on the so called integrity of the testing system could have no causal relationship to a veterinarian’s specific decision to administer Caco-Iron-Copper.
Even if they satisfied the first two requirements of a legitimate expectation, the connections would certainly fail at the third stage. They seek declarations of invalidity of both of HRNZ’s laboratory testing decisions. Even if those decisions were quashed or set aside, the results of the tests would remain unaffected in the absence of a challenge to the validity of the testing procedure itself. The connections do not suggest that the laboratory’s internal procedures or processes were defective. A Court would not have exercised its discretion to grant relief in these circumstances. As Simon France J observed, such a remedy would mean the horse was allowed to keep its win even though it won while racing with a prohibited substance.[29]
[29]At [101].
While counsel did not address the issue, a judicial decision having the effect of allowing Delightful Christian to retain first placing would ultimately award a substantive benefit as a remedy for breach of a legitimate expectation. Such a remedy may properly be awarded in some limited circumstances, given that the principle of legitimate expectation holds public authorities to their undertakings, and it is conceivable that an authority might have undertaken to bring about some substantive result. However, we reiterate this Court’s recent observation that “relief in the form of a substantive outcome is rarely, if ever, granted.”[30] Partly it will be rare because, as we have already noted,[31] an undertaking cannot be implemented where it would interfere with a public authority’s statutory duty, or where there is a satisfactory reason not to implement it. To uphold an expectation of a course of conduct regardless of these well established limits[32] “would be to usurp the function of the person or body carrying out the relevant public function.”[33]
[30]Comptroller, above n 9, at [155].
[31]At [15] and footnote 16 of this judgment.
[32]Attorney-General of Hong Kong, above n 10, at 351H, New Zealand Maori Council v Attorney‑General, above n 16, at 525.
[33]Comptroller, above n 9, at [155].
Mr Fisher did not address any submissions on this third element and we are satisfied that the connections’ claim is one for which it would be inappropriate to grant relief of an ultimately substantive nature. The alleged undertaking to consult or liaise, even if it could be made out to the required standard, does not come close to justifying relief in the form of a substantive result which would allow Delightful Christian to keep the first placing. Such relief would cut across the statutory requirement that a horse must not race with a prohibited substance in its system. The legitimate expectation claim fails on this ground also.
Discretion
The connections’ alternative claim is that the RIU failed to exercise a discretion or fettered its discretion not to prosecute by adhering to an overriding policy that disqualification of the horse must be sought wherever there is a positive test. Mr Fisher relied upon statements made in the RIU’s operational report of September 2012 that:
[R]egardless of the reason the RIU is obligated to seek … disqualification … In the circumstances of a positive test the RIU has no option but to seek the horse’s disqualification.
Mr Fisher accepted that the Judicial Control Authority hearing a charge would be bound to disqualify Delightful Christian under the rules if an information was laid and the presence of a prohibited substance was proved. However, he submitted, the prosecutor first had a discretion to exercise. In this case he should have considered whether the circumstances warranted making an exception to the general rule. A reasonable prosecutor could have concluded that a charge should not be laid where Delightful Christian obtained no benefit from the prohibited substance because Caco-Iron-Copper is a therapeutic compound with no performance enhancing qualities. Thus the case was exceptional, warranting a decision not to prosecute.
It is settled that a public body or official with discretionary statutory powers must not adopt a policy which disqualifies it from exercising a genuine discretion in a particular case if the circumstances warrant special treatment.[34] It is a moot question, however, whether and to what extent that principle applies in a case involving the exercise of prosecutorial discretion. It is not necessary to explore that question further because, assuming a prosecutorial discretion exists here, we are in no doubt that it was exercised by the RIU.
[34]The Criminal Bar Association of New Zealand Inc v Attorney-General [2013] NZCA 176, [2013] NZAR 1409 at [119], Attorney-General v Hewitt [2000] 2 NZLR 110 (HC) at [43], Practical Shooting Institute (NZ) Inc v Commissioner of Police [1992] 1 NZLR 709 (HC) at 712.
Mr Fisher’s submission to the contrary fails on the facts. He relied upon two statements taken in isolation from a full report. When read as a whole, the report establishes that RIU did exercise its discretion. In particular it emphasised that the foundation of HRNZ’s racing system is that horses must race drug free; and where the drug is a prohibited substance – in the case of arsenic, above the permitted threshold – the RIU has to take action. However, the report recorded that the RIU had exercised its discretion not to prosecute the trainers because they acted on their veterinarian’s advice. Moreover, it recorded the RIU’s appreciation that Caco-Iron-Copper, the source substance for the arsenic, had been used over many years without problems and was not on the veterinary list of products with a withholding time; and while a trainer was absolutely liable for failing to present a horse drug free to race, it would be wrong in this case to additionally seek a penalty against Messrs Green and Hughes.
Barry Kitto was the racecourse inspector who recommended an information be laid. In an affidavit sworn in the High Court he confirmed that he took into account a wide range of information including interviews with Messrs Green and Hughes, analyst reports, experts’ reports and his own wide knowledge of the relevant harness racing rules and regulations and racing judicial decisions. He also considered all the relevant evidence, the position of the horses placed after Delightful Christian in the race, the fact that the connections of other horses who would be eligible for a promotion in the event of disqualification were not able to file an information themselves, and the culpability of the trainers. He obtained permission from the RIU, as required, following a telephone discussion with its operations manager, chief stipendiary steward and HRNZ’s legal adviser.
In these circumstances it is plain that the RIU employees responsible for the decision to lay an information took into account a range of relevant factors and there can be no argument that it improperly fettered its prosecutorial discretion.
Mr Fisher made a related submission that the RIU acted unreasonably by failing to take into account that arsenic was not a performance enhancing substance. That is not the issue where a horse races with an unlawful level of a prohibited substance. And, as Mr McVeigh emphasised, arsenic is potentially dangerous to a horse’s good health.
Result
The connections’ claim is an elaborately constructed argument designed to disguise a simple complaint – that their breach of a HRNZ rule was detected by unexpected means. While the connections’ concern is that their breach was unintended, the rule is one of absolute liability: it imposed an unequivocal obligation on them to ensure Delightful Christian raced without a prohibited substance in her system. The result may seem unfair, but judicial review is not an appropriate vehicle for avoiding liability for the consequences of a failure to comply with that long established rule.
The appeal is dismissed.
The trainers and owners are ordered to pay the RIU and HRNZ one set of costs on a standard appeal on a band B basis in this Court and usual disbursements. We certify for two counsel.
Solicitors:
Claymore Partners Limited, Auckland for Appellants
Raymond Donnelly & Co, Christchurch, for Respondents
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