Harris v The Racing Integrity Board

[2024] NZHC 914

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-307

[2024] NZHC 914

BETWEEN

PAUL DAVID JOSEPH HARRIS

Applicant

AND

THE RACING INTEGRITY BOARD

Respondent

Hearing:	On the papers
Appearances:	S M Grieve KC and S J Bird for Applicant B H Dickey and D B Dow for Respondent
Judgment:	24 April 2024

JUDGMENT OF DUNNINGHAM J

(Re: Costs)

This judgment was delivered by me on 24 April 2024 at 11 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

HARRIS v THE RACING INTEGRITY BOARD [2024] NZHC 914 [24 April 2024]

Introduction

[1]                 On 24 November 2023 I issued a decision on an application for judicial review challenging various steps taken by The Racing Integrity Board (the Board) in proceedings instituted against the applicant, Mr Paul Harris, and another person.1 The applicant was successful in part.

[2]                 I reserved the issue of costs, though indicated my preliminary view was that costs should lie where they fall. An application for costs has now been made and is determined in this judgment.

Background

[3]                 On 12 October 2021, on the advice of two vets, a five-year-old bay mare named Riverfalls was euthanised.

[4]                 On 8 December 2021, the Board instituted proceedings against the applicant, a Canterbury-based horse trainer, and a licenced stable hand employed by Mr Harris, in relation to Riverfalls’ death.

[5]                 The charge2 alleged that, between 6 June 2021 and 12 October 2021, Mr Harris and his employee committed a serious racing offence because they “failed to take all reasonable steps to ensure the physical health needs of the horse ‘Riverfalls’ were met, resulting in that horse’s condition deteriorating to such state that it was required to be euthanised, an act detrimental to the interests of racing”.

[6]                 The Board convened an adjudicative committee (the Committee) to hear the charge.

[7]                 Prior to the hearing, counsel for Mr Harris requested further particulars of the charge. The Board declined to provide those. After closing arguments, the Committee issued a ruling amending the charge on its own motion to list seven particulars (the Ruling).

1      Harris v The Racing Integrity Board [2023] NZHC 3361.

2      Brought under r 801(1)(s)(i) of the New Zealand Thoroughbred Racing Inc Rules of Racing 2021.

[8]                 Mr Harris then appealed the Ruling. He contended the amendment after the case had finished irreparably prejudiced his defence.

[9]                 An appeals tribunal (the Tribunal) heard his appeal on the papers and dismissed it on 26 July 2022. Mr Harris then initiated proceedings for judicial review of the Ruling and the Tribunal’s decision to dismiss his appeal. The Committee stayed its proceeding pending the outcome of the judicial review application.

[10]In my judgment granting the judicial review application in part, I concluded:3

[103]    The decision to charge the applicant under r 801(1)(s)(i) [of the New Zealand Thoroughbred Rules of Racing 2021] is ultra vires. The charge does not identify a relevant act on which it can proceed.

[104]    For the avoidance of doubt, this does not prevent the charge being amended to be brought under another rule if the substance of the allegations remains the same.

[105]The remaining grounds of review are dismissed.

[11]In relation to costs, I held:

[106]Costs are reserved.

[107]    Given the mixed success of the parties, this may be an appropriate case for costs to lie where they fall.

[108]    If costs are sought, an application must be made within 20 working days, with any response to the application to be provided within 20 working days of receipt of the application.

[109]    Costs will be determined on the papers unless I need to hear from the parties.

[12]              On 21 December 2023, an extension of time to file an application for costs was granted to 9 February 2023.

[13]Tragically, Mr Harris took his own life on 26 December 2023.

[14]              On 1 February 2024, counsel for the applicant, Ms Grieve, filed a memorandum seeking costs on a 2B basis on the ground that the applicant was substantially successful overall in the proceeding.

3      Harris v The Racing Integrity Board [2023] NZHC 3361.

[15]              The Board, as the respondent, submits that it is appropriate for costs to lie where they fall.

Applicant’s position

[16]              Ms Grieve, for the applicant, seeks costs on a 2B basis, with the total sum sought being $25,062.75.

[17]              Ms Grieve’s submissions focused on my finding that the Board’s original charge was ultra vires as the applicant considered this was fundamental to the Board’s proceeding before the Committee. Ms Grieve submits this had a considerable impact on the applicant’s defence as he was forced to effectively answer two charges,4 incurring very significant costs in defending the charge before the Committee and in bringing the appeal.

[18]              Judicial review was the only remedy available to the applicant. Ms Grieve submits the trigger for the judicial review application was the Committee’s ruling that, on the amended charge, with new particulars, both the Board and the applicant could call further evidence. It was only after the judicial review proceeding had been filed that the Committee acknowledged this aspect of its ruling was in error and, but for the judicial review application, Ms Grieve submits the Committee may never have acknowledged this error. This rendered the second ground of review unnecessary and ground three, relating to the legality of the charge, became the focus of the review.

[19]              Further, Ms Grieve submits the Committee’s acknowledgment of its error only came after the very significant costs of preparing and filing the application for judicial review had been incurred.

[20]              In addition to the above two successes, Ms Grieve also points out that this Court confirmed it could not be inferred from the fact the horse was euthanised that all reasonable steps were not taken. Ms Grieve submits these comments endorse the applicant’s position as to the type of evidence needed to establish the charge. The

4      Being the charge laid under r 801, and the charge which I considered was more appropriate under r 1402.

Court noted it was a matter for the Committee to assess whether to support the charge but determined the nature of the evidence required was as the applicant had advanced.

[21]              Ms Grieve also notes that while the Court was reluctant to find there was no evidence on which the charge could be established without having all the evidence before it, the Board refused to transcribe the oral evidence and she submits that, had a transcript been made available, the Court would have been in a better position to satisfy itself the Board had not called any evidence of the kind required to establish the charge and the charge could have been dismissed.

[22]              For all these reasons, the applicant should be considered the successful party and costs awarded as sought.

Respondent’s position

[23]              The Board submits that due to the mixed success of the parties, costs should lie where they fall, as proposed by the High Court.

[24]              The Board, as a preliminary point, submits that the insinuation that its conduct may have contributed to the decision made by the applicant to take his own life, is offensive and rejected by the Board. The Board further submits that this has no relevance to the application for costs, a point which I accept.

[25]              In response to the applicant’s pleaded grounds of judicial review, the Board submits:

(a)Ground one, relating to the allegation that the decision of the Tribunal was ultra vires as the Tribunal was not properly constituted, failed. The reasons for dismissing this pleading are set out at [65]-[91] of this Court’s decision. Further, the Board submits this ground concerned a matter of public interest for the racing community, as a finding of procedural impropriety could have rendered many of the Tribunal’s decisions null on the basis they were made by improperly constituted Tribunals. In opposing this ground, the Board submits it acted

reasonably and in the interests of certainty for those involved in the racing industry.

(b)Ground two, relating to the alleged illegality of the Committee by materially amending the charge to add new particulars, was abandoned by the applicant. However, as it was included in the original statement of claim, the Board was required to address this ground in its statement of defence, increasing its costs.

(c)Ground three, relating to the alleged illegality and breach of natural justice of the Committee by allowing the charge as amended to proceed, was partially successful. The Court agreed that the charge was ultra vires as it did not specify a relevant act but declined to grant the further relief sought to bring the proceeding to an end, instead remitting back to the Committee for potential determination of an amended charge.

(d)Ground four, relating to a breach of natural justice, failed; and

(e)Ground five, relating to unreasonableness, failed.

[26]              The respondent submits that this breakdown shows the judicial review was only partially successful, with the applicant only succeeding on ground three and only insofar as the charge as formulated was found to be ultra vires the racing rules, but there was another charge available, which the Committee later amended it to. Therefore, the Respondent submits that costs should lie where they fall.

The law

[27]              The starting point is that “all matters are at the discretion of the court if they relate to costs of a proceeding”.5 The exercise of the Court’s discretion is guided by the principles set out in r 14.2 of the High Court Rules 2016 (the Rules). The Rules provide guidance to achieving justice but should not act as inflexible barriers to this goal.6

5      High Court Rules 2016, r 14.1.

6      Rutherford v Waikato District Council [2003] BCL 8.

[28]              Determining the successful party in cases including several grounds or causes of action is not straightforward. The Rules do not set out how to approach this issue, leaving it instead to the general discretion of the court.

[29]              Different approaches have been adopted in different cases. For example, in Packing In Ltd (in liq) v Chilcott, the Court of Appeal held that in cases where the parties had similar levels of success, the starting point was to consider how much time had been spent dealing with each of the issues and any other relevant matters as part of an overall endeavour to do justice to both sides in the circumstances of the case.7

[30]              Another approach was articulated in Water Guard NZ v Midgen Enterprises Ltd.8 There the Court of Appeal held that the unsuccessful party was “the party which was adjudged liable to pay money to the other” and that the successful party did not lose that status merely because most of its claims failed.9 However, as the Court of Appeal emphasised in Middeldorp v Avondale Jockey Club Inc,10 citing Kinney v Pardington:11

The overall objective is to achieve an outcome that best meets the interests of justice in the given case in accordance with any applicable costs rules and consistent with established principles.

[31]              In Middeldorp, the Court of Appeal held that there were, in effect, three judicial review  proceedings  combined  into  one  and  it  was  therefore  “consistent  with    r 14.2(1)(a) and the interests of justice to view the Club as the overall successful party, as it succeeded on two of the claims and lost just on the one”.12 The Judge in that case awarded 2B costs but  reduced them by 25 per cent to reflect  the degree to which  Mr Middledorp had success, including on appeal, to the Court of Appeal.

Discussion

[32]I accept that, in practical terms, the applicant was successful in:

7      Packing In Ltd (in liq) v Chilcott (2003) 16 PRNZ 869 (CA) at [5].

8      Water Guard NZ Ltd v Midgen Enterprises Ltd [2017] NZCA 36.

9 At [13].

10     Middeldorp v Avondale Jockey Club Inc [2021] NZCA 238; [2021] NZSC 117.

11     Kinney v Pardington [2021] NZCA 174 at [1].

12     Middeldorp v Avondale Jockey Club Inc (CA), above n 10, at [30].

(a)Persuading the Committee that, having amended the charge to include further particulars, it could not call further evidence to support the charge. The respondent conceded this point prior to hearing but nevertheless, this outcome was achieved by initiating the judicial review proceedings.

(b)Having this Court declare that the particular charge the applicant faced was ultra vires. It did, however, leave open the possibility that the charge could be amended.

[33]              I also accept that observations were made in the judgment regarding the evidence needed to prove the charge, which were helpful to the applicant, although this can not be regarded as success on a ground of review.

[34]              The grounds alleging a breach of natural justice and unreasonableness, were effectively combined in the allegation that the amendment of the charge breached     s 27(1) of the New Zealand Bill of Rights Act 1990. The respondent was successful in defending that allegation.

[35]              The final ground alleging that the Tribunal appointed by the respondent was invalidly constituted was clearly of significance to the respondent and it was the successful party on this issue.

[36]              Standing back, I am satisfied that both parties had success on issues that were of importance to them in the judicial review proceedings. This is not a case where damages were sought and the party held liable to the other could be said to be the successful party, even if their claim did not succeed in full. Here, several independent grounds of review were pursued, and the applicant could, at best, be seen to be successful on one (which the respondent conceded before hearing) and partially successful on another.

[37]              Having considered the parties’ submissions and their relative success on issues that were of importance to each of them, I am satisfied that in the interests of justice, this is a case where costs should lie where they fall.

Result

[38]Costs on the judicial review proceedings are to lie where they fall.

Solicitors:

Hatherly Loughnan, Christchurch Meredith Connell, Auckland

Copy to:

S M Grieve KC, Barrister, Christchurch B H Dickey, Barrister, Christchurch