JOHN PATRICK GREEN, BRIAN HUGHES, BARRY RATTRAY, WAYNE MCLAUGHLIN AND THE ESTATE OF MRS W MCLAUGHLIN Appellants
AND
RACING INTEGRITY UNIT LIMITED First Respondent
AND
HARNESS RACING NEW ZEALAND INCORPORATED Second Respondent
Hearing:
26 February 2014
Court:
O’Regan P, Harrison and Wild JJ
Counsel:
M J Fisher and L Hui for Appellants C A McVeigh QC and C J Lange for Respondents
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.
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.
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…
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.
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AGLC
Green v Racing Integrity Unit Ltd [2014] NZCA 133
Case
[2014] NZCA 133
Decision Date
CaseChat Overview and Summary
Green v Racing Integrity Unit Ltd [2014] NZCA 133 was an appeal brought by the trainers and owners of a horse called Delightful Christian, who had tested positive for arsenic after winning a race. They challenged the decision of the Racing Integrity Unit (RIU) and Harness Racing New Zealand (HRNZ) to lay a charge against the horse for having a prohibited substance in its system. The trainers and owners argued that they had a legitimate expectation that they would be consulted before the authorities approved a new regime for testing and that the RIU had improperly fettered its discretion by deciding that disqualification was mandatory in cases of a positive test. The High Court dismissed the application, and the trainers and owners now appealed, limited to the legitimate expectation and fettered discretion grounds. The Court of Appeal dismissed the appeal, finding that the trainers and owners had not established the existence of a practice or policy giving rise to the 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. The Court also found that the RIU had exercised its discretion in deciding to lay a charge against the horse and that it had not improperly fettered its discretion by adhering to an overriding policy that disqualification of the horse must be sought wherever there is a positive test. The appeal is dismissed, and 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.